PRIOR PRINTER'S NOS. 868, 1043, 1582

PRINTER'S NO.  1691

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

850

Session of

2011

  

  

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

  

  

AS AMENDED ON THIRD CONSIDERATION, OCTOBER 18, 2011   

  

  

  

AN ACT

  

1

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

2

Judicial Procedure) of the Pennsylvania Consolidated

3

Statutes, in minors, providing for the offense of

4

cyberbullying by minors; in criminal history record

5

information, further providing for expungement and for

6

juvenile records; and, in relation to summary offenses,

7

further providing for short title and purpose of chapter, for

8

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

9

and records, for conduct of hearings and for right to

10

counsel.

11

The General Assembly of the Commonwealth of Pennsylvania

12

hereby enacts as follows:

13

Section 1.  Title 18 of the Pennsylvania Consolidated

14

Statutes is amended by adding a section to read:

15

§ 6321.  Cyberbullying by minors.

16

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

17

third degree if:

18

(1)  the minor knowingly transmits or disseminates any

19

electronic message communication, including a visual

<--

20

depiction of himself or any other person in a state of

21

nudity, to another minor with the knowledge or intent that

 


1

the message communication would coerce, intimidate, torment,

<--

2

harass or otherwise cause emotional distress to the other

3

minor; or

4

(2)  the minor does any of the following involving

5

another minor:

6

(i)  photographs, videotapes, depicts on a computer

7

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

8

person's knowledge or consent; or

9

(ii)  transmits, distributes, publishes or

10

disseminates a visual depiction of the other minor in a

11

state of nudity where the minor depicted has not given

12

consent or has withdrawn consent for the dissemination.

13

(b)  Seizure and forfeiture of electronic communication 

<--

14

device.--An electronic communication device used in violation of

<--

15

this section may be seized by and forfeited to the Commonwealth.

16

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

17

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

18

subsection:

19

"Disseminate."  To cause or make an electronic communication

20

from one person, place or electronic communication device to two

21

or more persons, places or electronic communication devices.

22

"Electronic communication."  As defined in section 5702

<--

23

(relating to definitions).

24

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

25

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

26

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

27

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

28

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

29

the depiction of covered male genitals in a discernibly turgid

30

state.

- 2 -

 


1

"Transmit."  To cause or make an electronic communication

2

from one person, place or electronic communication device to

3

only one other person, place or electronic communication device.

4

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

5

depiction on a computer. The term shall not include a

6

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

7

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

8

or in furtherance of a commercial purpose or to the transmission

9

or dissemination of such a visual depiction.

10

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

11

18 are amended to read:

12

§ 9122.  Expungement.

13

(a)  Specific proceedings.--Criminal history record

14

information shall be expunged in a specific criminal proceeding

15

when:

16

* * *

17

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

18

convicted of a violation of section 6308 (relating to

19

purchase, consumption, possession or transportation of liquor

20

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

21

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

22

of common pleas in the county where the conviction occurred

23

seeking expungement and the person has satisfied all terms

24

and conditions of the sentence imposed for the violation,

25

including any suspension of operating privileges imposed

26

pursuant to section 6310.4 (relating to restriction of

27

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

28

shall order the expungement of all criminal history record

29

information and all administrative records of the Department

30

of Transportation relating to said conviction.

- 3 -

 


1

* * *

2

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

3

promptly be submitted to the central [respository] repository 

4

which shall notify all criminal justice agencies which have

5

received the criminal history record information to be expunged.

6

* * *

7

§ 9123.  Juvenile records.

8

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

9

provisions of section 9105 (relating to other criminal justice

10

information) and except upon cause shown, expungement of records

11

of juvenile delinquency cases and cases involving summary

12

offenses committed while the individual was under 18 years of

13

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

14

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

15

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

16

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

17

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

18

dismissed by the court;

19

(1.1)  a written allegation is filed which was not

20

approved for prosecution;

21

(1.2)  the individual successfully completed an informal

22

adjustment and no proceeding seeking adjudication or

23

conviction is pending;

24

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

25

the person from supervision under a consent decree or

26

diversion program, including a program under 42 Pa.C.S. §

27

1520 (relating to adjudication alternative program) and no

28

proceeding seeking adjudication or conviction is pending;

29

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

30

individual has satisfied all terms and conditions of the

- 4 -

 


1

sentence imposed following a conviction for a summary

2

offense, with the exception of a violation of section 6308

3

(relating to purchase, consumption, possession or

4

transportation of liquor or malt or brewed beverages),

5

committed while the individual was under 18 years of age and

6

the individual has not been convicted of a felony,

7

misdemeanor or adjudicated delinquent and no proceeding is

8

pending to seek such conviction and adjudication;

9

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

10

been convicted of a violation of section 6308 which occurred

11

while the individual was under 18 years of age and the

12

individual has satisfied all terms and conditions of the

13

sentence imposed for the violation, including any suspension

14

of operating privileges imposed under section 6310.4

15

(relating to restriction of operating privileges).

16

Expungement shall include all criminal history record

17

information and all administrative records of the Department

18

of Transportation relating to the conviction;

19

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

20

the person from commitment, placement, probation or any other

21

disposition and referral and since such final discharge, the

22

person has not been convicted of a felony, misdemeanor or

23

adjudicated delinquent and no proceeding is pending seeking

24

such conviction or adjudication; or

25

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

26

attorney for the Commonwealth consents to the expungement and

27

a court orders the expungement after giving consideration to

28

the following factors:

29

(i)  the type of offense;

30

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

- 5 -

 


1

criminal activity and drug or alcohol problems;

2

(iii)  adverse consequences that the individual may

3

suffer if the records are not expunged; and

4

(iv)  whether retention of the record is required for

5

purposes of protection of the public safety.

6

* * *

7

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

8

§ 6301.  Short title and purposes of chapter.

9

* * *

10

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

11

construed as to effectuate the following purposes:

12

(1)  To preserve the unity of the family whenever

13

possible or to provide another alternative permanent family

14

when the unity of the family cannot be maintained.

15

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

16

wholesome mental and physical development of children coming

17

within the provisions of this chapter.

18

(2)  Consistent with the protection of the public

19

interest, to provide for children committing delinquent acts

20

programs of supervision, care and rehabilitation which

21

provide balanced attention to the protection of the

22

community, the imposition of accountability for offenses

23

committed and the development of competencies to enable

24

children to become responsible and productive members of the

25

community.

26

(3)  To achieve the foregoing purposes in a family

27

environment whenever possible, separating the child from

28

parents only when necessary for his welfare, safety or health

29

or in the interests of public safety.

30

(4)  To provide means through which the provisions of

- 6 -

 


1

this chapter are executed and enforced and in which the

2

parties are assured a fair hearing and their constitutional

3

and other legal rights recognized and enforced.

4

(5)  To use the least restrictive sanctions consistent

5

with the protection of the community and the rehabilitation 

6

needs of a delinquent child; and to use confinement as a last

7

resort and to impose it for the minimum amount of time that

8

is consistent with the protection of the public and the

9

rehabilitation needs of a delinquent child.

10

(6)  To employ whenever possible evidence-based

11

practices, with fidelity, at every stage of the juvenile

12

justice process.

13

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

14

amended by adding subsections to read:

15

§ 6303.  Scope of chapter.

16

* * *

17

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

18

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

19

exclusion of summary offenses generally from the definition of

20

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

21

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

22

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

23

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

24

proceedings, shall apply to proceedings involving a child

25

charged with a summary offense when the proceedings are before a

26

judge of the minor judiciary.

27

§ 6307.  Inspection of court files and records.

28

* * *

29

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

30

apply to proceedings involving a child charged with a summary

- 7 -

 


1

offense when the proceedings are before a judge of the minor

2

judiciary.

3

§ 6336.  Conduct of hearings.

4

* * *

5

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

6

insofar as it relates to the exclusion of the general public

7

from the proceedings, shall apply to proceedings involving a

8

child charged with a summary offense when the proceedings are

9

before a judge of the minor judiciary.

10

(h)  Adjudication alternative.--The magisterial district

11

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

12

adjudication alternative program under section 1520 (relating to

13

adjudication alternative program) and the Pennsylvania Rules of

14

Criminal Procedure.

15

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

16

§ 6337.  Right to counsel.

17

(a)  Court to provide counsel.--

18

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

19

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

20

entitled to representation by legal counsel at all stages of

21

any proceedings under this chapter and if he is without

22

financial resources or otherwise unable to employ counsel, to

23

have the court provide counsel for him.

24

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

25

ascertain whether he knows of his right thereto and to be

26

provided with counsel by the court if applicable. The court

27

may continue the proceeding to enable a party to obtain

28

counsel. [Counsel must be provided for a child unless his

29

parent, guardian, or custodian is present in court and

30

affirmatively waive it. However, the parent, guardian, or

- 8 -

 


1

custodian may not waive counsel for a child when their

2

interest may be in conflict with the interest or interests of

3

the child.]

4

(3)  If the interests of two or more parties may

5

conflict, separate counsel shall be provided for each of

6

them.

7

(b)  Delinquency cases.--

8

(1)  In delinquency cases, all children are presumed

9

indigent. The presumption may be rebutted if the court

10

ascertains that the child has the financial resources to

11

retain counsel of his choice at his own expense.

12

(2)  The court shall not consider the financial resources

13

of the child's parent, guardian or custodian when

14

ascertaining whether the child has the financial resources to

15

retain counsel of his choice at his own expense.

16

Section 6.  This act shall take effect as follows:

17

(1)  The addition of 42 Pa.C.S. §§ 6303(c), 6307(c) and

18

6336(g) and (h) shall take effect in 90 days.

19

(2)  The amendment of 42 Pa.C.S. § 6337 shall take effect

20

immediately.

21

(3)  This section shall take effect immediately.

22

(4)  The remainder of this act shall take effect in 60

23

days.

- 9 -