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Session of 2012

No. 2012-198

 

HB 815

 

AN ACT

 

Amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, further providing for the offense of sexual abuse of children; and providing for the offense of transmission of sexually explicit images by minor.

 

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

 

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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 transmission of sexually explicit images by minor), unless the conduct is specifically excluded by section 6321(d).

(3)  An individual under 18 years of age who knowingly views, photographs, videotapes, depicts on a computer or films or possesses or intentionally views a visual depiction as defined in section 6321 of himself alone in a state of nudity as defined in section 6321.

* * *

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

§ 6321.  Transmission of sexually explicit images by minor.

(a)  Summary offense.--Except as provided in section 6312 (relating to sexual abuse of children), a minor commits a summary offense when the minor:

(1)  Knowingly transmits, distributes, publishes or disseminates an electronic communication containing a sexually explicit image of himself.

(2)  Knowingly possesses or knowingly views a sexually explicit image of a minor who is 12 years of age or older.

(b)  Misdemeanor of the third degree.--Except as provided in section 6312, a minor commits a misdemeanor of the third degree when the minor knowingly transmits, distributes, publishes or disseminates an electronic communication containing a sexually explicit image of another minor who is 12 years of age or older.

(c)  Misdemeanor of the second degree.--Except as provided in section 6312, a minor commits a misdemeanor of the second degree when, with the intent to coerce, intimidate, torment, harass or otherwise cause emotional distress to another minor, the minor:

(1)  makes a visual depiction of any minor in a state of nudity without the knowledge and consent of the depicted minor; or

(2)  transmits, distributes, publishes or disseminates a visual depiction of any minor in a state of nudity without the knowledge and consent of the depicted minor.

(d)  Application of section.--This section shall not apply to the following:

(1)  Conduct that involves images that depict sexual intercourse, deviate sexual intercourse or penetration, however slight, of the genitals or anus of a minor, masturbation, sadism, masochism or bestiality.

(2)  Conduct that involves a sexually explicit image of a minor if the image was taken, made, used or intended to be used for or in furtherance of a commercial purpose.

(e)  Forfeiture.--Any electronic communication device used in violation of this section shall be subject to forfeiture to the Commonwealth, and no property right shall exist in it.

(f)  Diversionary program.--The magisterial district judge or any judicial authority with jurisdiction over the violation shall give first consideration to referring a person charged with a violation of subsection (a) to a diversionary program under 42 Pa.C.S. § 1520 (relating to adjudication alternative program) and the Pennsylvania Rules of Criminal Procedure. As part of the diversionary program, the magisterial district judge or any judicial authority with jurisdiction over the violation may order the person to participate in an educational program which includes the legal and nonlegal consequences of sharing sexually explicit images. If the person successfully completes the diversionary program, the person's records of the charge of violating subsection (a) shall be expunged as provided for under Pa.R.C.P. No.320 (relating to expungement upon successful completion of ARD program).

(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:

"Disseminate."  To cause or make an electronic or actual communication from one person, place or electronic communication device to two or more other persons, places or electronic communication devices.

"Distribute."  To deliver or pass out.

"Electronic communication."  As defined in section 5702 (relating to definitions).

"Knowingly possesses."  The deliberate, purposeful, voluntary possession of a sexually explicit image of another minor who is 12 years of age or older. The term shall not include the accidental or inadvertent possession of such an image.

"Knowingly views."  The deliberate, purposeful, voluntary viewing of a sexually explicit image of another minor who is 12 years of age or older. The term shall not include the accidental or inadvertent viewing of such an image.

"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.

"Publish."  To issue for distribution.

"Sexually explicit image."  A lewd or lascivious visual depiction of a minor's genitals, pubic area, breast or buttocks or nudity, if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such nudity.

"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.

"Visual depiction."  A representation by picture, including, but not limited to, a photograph, videotape, film or computer image.

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

 

APPROVED--The 25th day of October, A.D. 2012.

 

TOM CORBETT