THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY GROVE, AUMENT, BAKER, BOBACK, CARROLL, CLYMER, D. COSTA, CUTLER, DALEY, GEIST, KAUFFMAN, MILLER, MOUL, O'NEILL, REICHLEY, ROCK, SAYLOR AND MURT, FEBRUARY 24, 2011

AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF REPRESENTATIVES, AS AMENDED, MAY 3, 2011   

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

Consolidated Statutes, further providing for the offense of

sexual abuse of children; and defining the offense of sexting

by minors.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 6312(f) of Title 18 of the Pennsylvania

Consolidated Statutes is amended to read:

§ 6312.  Sexual abuse of children.

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(f)  Exceptions.--This section does not apply to any of the

following:

(1)  Any material that is viewed, possessed, controlled,

brought or caused to be brought into this Commonwealth, or

presented, for a bona fide educational, scientific,

governmental or judicial purpose.

(2)  Conduct prohibited under section 6321 (relating to

sexting by minors).

(3)  An individual under 18 years of age who knowingly

photographs, videotapes, depicts on a computer or films or

possesses or intentionally views a visual depiction as

defined in section 6321 of himself or herself alone in a

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state of simple nudity as defined in section 6321.

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Section 2.  Title 18 is amended by adding a section to read:

§ 6321.  Sexting by minors.

(a)  Offense defined.--A minor who knowingly transmits an

electronic communication or disseminates a depiction of himself

or herself or another minor, or possesses a depiction of another

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minor, engaging in sexually explicit conduct commits a

misdemeanor of the second degree.

(b)  Applicability.--This section shall not apply to the

following:

(1)  Electronic communications that depict either sexual

intercourse or deviate sexual intercourse or the penetration,

however slight, of the genitals or anus of a minor with any

part of a person's body, masturbation, sadism or masochism.

The transmission of an electronic communication depicting any

of these acts shall be subject to prosecution under other

provisions of this title, including section 6312 (relating to

sexual abuse of children).

(2)  A visual depiction of a minor which depicts the

minor engaging in sexually explicit conduct if the

photograph, videotape, film or depiction was taken, made,

produced, used or intended to be used for or in furtherance

of a commercial purpose. The photographing, videotaping,

filming or depicting on a computer of a visual depiction

which depicts the minor engaging in sexually explicit conduct

for or in furtherance of a commercial purpose shall be

subject to prosecution under other provisions of this title,

including section 6312.

(c)  Adjudication alternatives.--As appropriate to the

circumstances, if a minor is accused of violating this section,

consideration shall be given to:

(1)  Diversionary alternatives available prior to a law

enforcement officer's submission of a written allegation of

delinquency to the juvenile probation office.

(2)  Adjudicatory alternatives available subsequent to

the submission of a written allegation of delinquency,

including the opportunity for disposition through informal

adjustment as set forth in 42 Pa.C.S. § 6323 (relating to

informal adjustment) or entry into a consent decree pursuant

to 42 Pa.C.S. § 6340 (relating to consent decree).

(d)  Expungement.--For juveniles who fulfill the conditions

of a diversionary alternative pursuant to subsection (c)(1) or

informal adjustment pursuant to 42 Pa.C.S. § 6323, the record,

including any fingerprints or photographs taken under 42 Pa.C.S.

§ 6308(c) (relating to law enforcement records), shall be

expunged pursuant to section 9123(a)(1) (relating to juvenile

records). For juveniles who have successfully fulfilled the

conditions of a consent decree pursuant to 42 Pa.C.S. § 6340,

the record, including any fingerprints or photographs taken

pursuant to 42 Pa.C.S. § 6308(c), shall be expunged pursuant to

section 9123(a)(2).

(e)  No secure detention or placement authorized.--A minor

alleged to be delinquent solely on the basis of an offense

committed under subsection (a) may not be detained in a secure

placement facility under 42 Pa.C.S. § 6327 (relating to place of

detention). A minor adjudicated delinquent where the offense

under subsection (a) is the only offense substantiated under 42

Pa.C.S. § 6341 (relating to adjudication) shall not be subject

to commitment to a secure facility pursuant to a disposition

ordered by the court under 42 Pa.C.S. § 6352 (relating to

disposition of delinquent child).

(f)  Seizure and forfeiture of electronic device.--An

electronic device used in violation of this section may be

seized and forfeited to the Commonwealth.

(g)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"Electronic communication."  As defined in section 5702

(relating to definitions).

"Minor."  A person 13 years of age or older and under 18

years of age.

"Nudity."  As defined in section 5903(e) (relating to obscene

and other sexual materials and performances).

"Sexual intercourse."  As defined in section 3101 (relating

to definitions).

"Sexually explicit conduct."  A lewd or lascivious exhibition

of the minor's genitals, pubic area, breasts or buttocks or

nudity if such nudity is depicted for the purpose of sexual

stimulation or gratification of any person who might view such

depiction. The term does not include simple nudity.

Section 3.  This act shall take effect in 60 days.