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| PRIOR PRINTER'S NOS. 868, 1043, 1582 | PRINTER'S NO. 1691 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY GREENLEAF, BAKER, TARTAGLIONE, FONTANA, COSTA, YUDICHAK, BOSCOLA, ALLOWAY, HUGHES AND FARNESE, MARCH 16, 2011 |
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| AS AMENDED ON THIRD CONSIDERATION, OCTOBER 18, 2011 |
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| AN ACT |
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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 |
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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12 | consent or has withdrawn consent for the dissemination.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. |
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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. |
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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 |
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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, |
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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 |
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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 |
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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 |
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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. |
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