THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY GREENLEAF, BAKER, TARTAGLIONE, FONTANA, COSTA, YUDICHAK, BOSCOLA, ALLOWAY AND HUGHES, MARCH 16, 2011

REFERRED TO JUDICIARY, MARCH 16, 2011  

AN ACT

Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and

Judicial Procedure) of the Pennsylvania Consolidated

Statutes, in minors, providing for the offense of

cyberbullying and sexting by minors; in criminal history

record information, further providing for expungement and for

juvenile records; and, in relation to summary offenses,

further providing for short title and purpose of chapter, for

the scope of the Juvenile Act, for inspection of court files

and records, for conduct of hearings and for right to

counsel.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 18 of the Pennsylvania Consolidated

Statutes is amended by adding a section to read:

§ 6321.  Cyberbullying and sexting by minors.

(a)  Offense defined.--A minor commits a misdemeanor of the

second degree if:

(1)  the minor knowingly transmits or disseminates any

electronic message, including a visual depiction of himself

or any other person in a state of nudity, to another minor

with the knowledge or intent that the message would coerce,

intimidate, torment, harass or otherwise cause emotional

distress to the other minor; or

(2)  the minor does any of the following involving

another minor:

(i)  photographs, videotapes, depicts on a computer

or films the other minor in a state of nudity without the

person's knowledge or consent; or

(ii)  transmits, distributes, publishes or

disseminates a visual depiction of the other minor in a

state of nudity where the minor depicted has not given

consent or has withdrawn consent for the dissemination.

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

electronic device used in violation of this section may be

seized by and forfeited to the Commonwealth.

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

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

subsection:

"Disseminate."  To cause or make an electronic communication

from one person, place or electronic communication device to two

or more persons, places or electronic communication devices. The

term does not include the posting on or transfer to an Internet

page or website to which the public has or might gain access.

"Minor."  An individual under 18 years of age.

"Nudity."  The showing of the human male or female genitals,

pubic area or buttocks with less than a fully opaque covering,

the showing of the female breast with less than a fully opaque

covering of any portion thereof below the top of the nipple or

the depiction of covered male genitals in a discernibly turgid

state.

"Transmit."  To cause or make an electronic communication

from one person, place or electronic communication device to

only one other person, place or electronic communication device.

The term shall not include the posting on or transfer to an

Internet page or website to which the public has or might gain

access.

"Visual depiction."  A photograph, videotape, film or

depiction on a computer. The term shall not include a

photograph, videotape, film or depiction on a computer, taken,

taped, filmed, made, produced, used or intended to be used, for

or in furtherance of a commercial purpose or to the transmission

or dissemination of such a visual depiction.

Section 2. Sections 9122(a)(3) and (d) and 9123(a) of Title

18 are amended to read:

§ 9122.  Expungement.

(a)  Specific proceedings.--Criminal history record

information shall be expunged in a specific criminal proceeding

when:

* * *

(3)  a person 21 years of age or older who has been

convicted of a violation of section 6308 (relating to

purchase, consumption, possession or transportation of liquor

or malt or brewed beverages), which occurred on or after the

day the person attained 18 years of age, petitions the court

of common pleas in the county where the conviction occurred

seeking expungement and the person has satisfied all terms

and conditions of the sentence imposed for the violation,

including any suspension of operating privileges imposed

pursuant to section 6310.4 (relating to restriction of

operating privileges). Upon review of the petition, the court

shall order the expungement of all criminal history record

information and all administrative records of the Department

of Transportation relating to said conviction.

* * *

(d)  Notice of expungement.--Notice of expungement shall

promptly be submitted to the central [respository] repository 

which shall notify all criminal justice agencies which have

received the criminal history record information to be expunged.

* * *

§ 9123.  Juvenile records.

(a)  Expungement of juvenile records.--Notwithstanding the

provisions of section 9105 (relating to other criminal justice

information) and except upon cause shown, expungement of records

of juvenile delinquency cases and cases involving summary

offenses committed while the individual was under 18 years of

age, wherever kept or retained shall occur after 30 days' notice

to the district attorney, whenever the court upon its own motion

or upon the motion of a child or the parents or guardian finds:

(1)  a complaint is filed which is not substantiated or

the petition which is filed as a result of a complaint is

dismissed by the court;

(1.1)  a written allegation is filed which was not

approved for prosecution;

(1.2)  the individual successfully completed an informal

adjustment and no proceeding seeking adjudication or

conviction is pending;

(2)  six months have elapsed since the final discharge of

the person from supervision under a consent decree or

diversion program and no proceeding seeking adjudication or

conviction is pending;

(2.1)  the individual is 18 years of age or older and the

individual has satisfied all terms and conditions of the

sentence imposed following a conviction for a summary

offense, with the exception of a violation of section 6308

(relating to purchase, consumption, possession or

transportation of liquor or malt or brewed beverages),

committed while the individual was under 18 years of age and

the individual has not been convicted of a felony,

misdemeanor or adjudicated delinquent and no proceeding is

pending to seek such conviction and adjudication;

(2.2)  the individual is 18 years of age or older and has

been convicted of a violation of section 6308 which occurred

while the individual was under 18 years of age and the

individual has satisfied all terms and conditions of the

sentence imposed for the violation, including any suspension

of operating privileges imposed under section 6310.4

(relating to restriction of operating privileges).

Expungement shall include all criminal history record

information and all administrative records of the Department

of Transportation relating to the conviction;

(3)  five years have elapsed since the final discharge of

the person from commitment, placement, probation or any other

disposition and referral and since such final discharge, the

person has not been convicted of a felony, misdemeanor or

adjudicated delinquent and no proceeding is pending seeking

such conviction or adjudication; or

(4)  the individual [is 18 years of age or older]

petitions the court for an expungement, the attorney for the

Commonwealth consents to the expungement and a court orders

the expungement after giving consideration to the following

factors:

(i)  the type of offense;

(ii)  the individual's age, history of employment,

criminal activity and drug or alcohol problems;

(iii)  adverse consequences that the individual may

suffer if the records are not expunged; and

(iv)  whether retention of the record is required for

purposes of protection of the public safety.

* * *

Section 3. Section 6301(b) of Title 42 is amended to read:

§ 6301.  Short title and purposes of chapter.

* * *

(b)  Purposes.--This chapter shall be interpreted and

construed as to effectuate the following purposes:

(1)  To preserve the unity of the family whenever

possible or to provide another alternative permanent family

when the unity of the family cannot be maintained.

(1.1)  To provide for the care, protection, safety and

wholesome mental and physical development of children coming

within the provisions of this chapter.

(2)  Consistent with the protection of the public

interest, to provide for children committing delinquent acts

programs of supervision, care and rehabilitation which

provide balanced attention to the protection of the

community, the imposition of accountability for offenses

committed and the development of competencies to enable

children to become responsible and productive members of the

community.

(3)  To achieve the foregoing purposes in a family

environment whenever possible, separating the child from

parents only when necessary for his welfare, safety or health

or in the interests of public safety.

(4)  To provide means through which the provisions of

this chapter are executed and enforced and in which the

parties are assured a fair hearing and their constitutional

and other legal rights recognized and enforced.

(5)  To use the least restrictive punitive sanctions

consistent with the protection of the community and the

rehabilitative needs of the child; and to use confinement as

a last resort and to impose it for the minimum amount of time

that is consistent with the protection of the public and the

rehabilitative needs of the child.

(6)  To employ evidence-based practices, with fidelity,

at every stage of the juvenile justice process.

Section 4.  Sections 6303, 6307 and 6336 of Title 42 are

amended by adding subsections to read:

§ 6303.  Scope of chapter.

* * *

(c)  Summary offenses generally.--In addition to the

provisions of subsection (a)(5) and notwithstanding the

exclusion of summary offenses generally from the definition of

"delinquent act" under section 6302, the provisions of sections

6307 (relating to inspection of court files and records) and

6336(d) (relating to conduct of hearings), insofar as section

6336(d) relates to the exclusion of the general public from the

proceedings, shall apply to proceedings involving a child

charged with a summary offense when the proceedings are before a

judge of the minor judiciary.

§ 6307.  Inspection of court files and records.

* * *

(c)  Summary offenses.--The provisions of this section shall

apply to proceedings involving a child charged with a summary

offense when the proceedings are before a judge of the minor

judiciary.

§ 6336.  Conduct of hearings.

* * *

(g)  Summary offenses.--The provisions of subsection (d),

insofar as it relates to the exclusion of the general public

from the proceedings, shall apply to proceedings involving a

child charged with a summary offense when the proceedings are

before a judge of the minor judiciary.

(h)  Adjudication alternative.--The magisterial district

judge may refer a child charged with a summary offense to an

adjudication alternative program under section 1520 (relating to

adjudication alternative program) and the Pennsylvania Rules of

Criminal Procedure.

Section 5.  Section 6337 of Title 42 is amended to read:

§ 6337.  Right to counsel.

(a)  Presumption of indigency.--

(1)  Except as provided in section 6311 (relating to

guardian ad litem for child in court proceedings), a party is

entitled to representation by legal counsel at all stages of

any proceedings under this chapter and if he is without

financial resources or otherwise unable to employ counsel, to

have the court provide counsel for him.

(2)  All children are presumed indigent for the purposes

of any proceedings under this chapter. The presumption may be

rebutted if the court ascertains that the child has the

financial resources to retain counsel of his choice at his

own expense.

(3)  If a party appears without counsel the court shall

ascertain whether he knows of his right thereto and to be

provided with counsel by the court if applicable. The court

may continue the proceeding to enable a party to obtain

counsel.

(b)  Waiver.--Counsel must be provided for a child unless his

parent, guardian, or custodian is present in court and

affirmatively [waive] waives it. However, the parent, guardian,

or custodian may not waive counsel for a child when their

interest may be in conflict with the interest or interests of

the child. If the interests of two or more parties may conflict,

separate counsel shall be provided for each of them.

Section 6.  This act shall take effect in 60 days.