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| PRIOR PRINTER'S NO. 868 | PRINTER'S NO. 1043 |
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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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| SENATOR GREENLEAF, JUDICIARY, AS AMENDED, APRIL 12, 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 and sexting by minors; in criminal history |
5 | record 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 and sexting by minors. |
16 | (a) Offense defined.--A minor commits a misdemeanor of the |
17 | second third degree if: | <-- |
18 | (1) the minor knowingly transmits or disseminates any |
19 | electronic message, including a visual depiction of himself |
20 | or any other person in a state of nudity, to another minor |
21 | with the knowledge or intent that the message would coerce, |
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1 | intimidate, torment, harass or otherwise cause emotional |
2 | distress to the other minor; or |
3 | (2) the minor does any of the following involving |
4 | another minor: |
5 | (i) photographs, videotapes, depicts on a computer |
6 | or films the other minor in a state of nudity without the |
7 | person's knowledge or consent; or |
8 | (ii) transmits, distributes, publishes or |
9 | disseminates a visual depiction of the other minor in a |
10 | state of nudity where the minor depicted has not given |
11 | consent or has withdrawn consent for the dissemination. |
12 | (b) Seizure and forfeiture of electronic device.--An |
13 | electronic device used in violation of this section may be |
14 | seized by and forfeited to the Commonwealth. |
15 | (c) Definitions.--As used in this section, the following |
16 | words and phrases shall have the meanings given to them in this |
17 | subsection: |
18 | "Disseminate." To cause or make an electronic communication |
19 | from one person, place or electronic communication device to two |
20 | or more persons, places or electronic communication devices. The |
21 | term does not include the posting on or transfer to an Internet |
22 | page or website to which the public has or might gain access. |
23 | "Minor." An individual under 18 years of age. |
24 | "Nudity." The showing of the human male or female genitals, |
25 | pubic area or buttocks with less than a fully opaque covering, |
26 | the showing of the female breast with less than a fully opaque |
27 | covering of any portion thereof below the top of the nipple or |
28 | the depiction of covered male genitals in a discernibly turgid |
29 | state. |
30 | "Transmit." To cause or make an electronic communication |
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1 | from one person, place or electronic communication device to |
2 | only one other person, place or electronic communication device. |
3 | The term shall not include the posting on or transfer to an |
4 | Internet page or website to which the public has or might gain |
5 | access. |
6 | "Visual depiction." A photograph, videotape, film or |
7 | depiction on a computer. The term shall not include a |
8 | photograph, videotape, film or depiction on a computer, taken, |
9 | taped, filmed, made, produced, used or intended to be used, for |
10 | or in furtherance of a commercial purpose or to the transmission |
11 | or dissemination of such a visual depiction. |
12 | Section 2. Sections 9122(a)(3) and (d) and 9123(a) of Title |
13 | 18 are amended to read: |
14 | § 9122. Expungement. |
15 | (a) Specific proceedings.--Criminal history record |
16 | information shall be expunged in a specific criminal proceeding |
17 | when: |
18 | * * * |
19 | (3) a person 21 years of age or older who has been |
20 | convicted of a violation of section 6308 (relating to |
21 | purchase, consumption, possession or transportation of liquor |
22 | or malt or brewed beverages), which occurred on or after the |
23 | day the person attained 18 years of age, petitions the court |
24 | of common pleas in the county where the conviction occurred |
25 | seeking expungement and the person has satisfied all terms |
26 | and conditions of the sentence imposed for the violation, |
27 | including any suspension of operating privileges imposed |
28 | pursuant to section 6310.4 (relating to restriction of |
29 | operating privileges). Upon review of the petition, the court |
30 | shall order the expungement of all criminal history record |
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1 | information and all administrative records of the Department |
2 | of Transportation relating to said conviction. |
3 | * * * |
4 | (d) Notice of expungement.--Notice of expungement shall |
5 | promptly be submitted to the central [respository] repository |
6 | which shall notify all criminal justice agencies which have |
7 | received the criminal history record information to be expunged. |
8 | * * * |
9 | § 9123. Juvenile records. |
10 | (a) Expungement of juvenile records.--Notwithstanding the |
11 | provisions of section 9105 (relating to other criminal justice |
12 | information) and except upon cause shown, expungement of records |
13 | of juvenile delinquency cases and cases involving summary |
14 | offenses committed while the individual was under 18 years of |
15 | age, wherever kept or retained shall occur after 30 days' notice |
16 | to the district attorney, whenever the court upon its own motion |
17 | or upon the motion of a child or the parents or guardian finds: |
18 | (1) a complaint is filed which is not substantiated or |
19 | the petition which is filed as a result of a complaint is |
20 | dismissed by the court; |
21 | (1.1) a written allegation is filed which was not |
22 | approved for prosecution; |
23 | (1.2) the individual successfully completed an informal |
24 | adjustment and no proceeding seeking adjudication or |
25 | conviction is pending; |
26 | (2) six months have elapsed since the final discharge of |
27 | the person from supervision under a consent decree or |
28 | diversion program, including a program under 42 Pa.C.S. § | <-- |
29 | 1520 (relating to adjudication alternative program) and no |
30 | proceeding seeking adjudication or conviction is pending; |
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1 | (2.1) the individual is 18 years of age or older and the |
2 | individual has satisfied all terms and conditions of the |
3 | sentence imposed following a conviction for a summary |
4 | offense, with the exception of a violation of section 6308 |
5 | (relating to purchase, consumption, possession or |
6 | transportation of liquor or malt or brewed beverages), |
7 | committed while the individual was under 18 years of age and |
8 | the individual has not been convicted of a felony, |
9 | misdemeanor or adjudicated delinquent and no proceeding is |
10 | pending to seek such conviction and adjudication; |
11 | (2.2) the individual is 18 years of age or older and has |
12 | been convicted of a violation of section 6308 which occurred |
13 | while the individual was under 18 years of age and the |
14 | individual has satisfied all terms and conditions of the |
15 | sentence imposed for the violation, including any suspension |
16 | of operating privileges imposed under section 6310.4 |
17 | (relating to restriction of operating privileges). |
18 | Expungement shall include all criminal history record |
19 | information and all administrative records of the Department |
20 | of Transportation relating to the conviction; |
21 | (3) five years have elapsed since the final discharge of |
22 | the person from commitment, placement, probation or any other |
23 | disposition and referral and since such final discharge, the |
24 | person has not been convicted of a felony, misdemeanor or |
25 | adjudicated delinquent and no proceeding is pending seeking |
26 | such conviction or adjudication; or |
27 | (4) [the individual [is 18 years of age or older] | <-- |
28 | petitions the court for an expungement,,] the attorney for | <-- |
29 | the Commonwealth consents to the expungement and a court |
30 | orders the expungement after giving consideration to the |
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1 | following factors: |
2 | (i) the type of offense; |
3 | (ii) the individual's age, history of employment, |
4 | criminal activity and drug or alcohol problems; |
5 | (iii) adverse consequences that the individual may |
6 | suffer if the records are not expunged; and |
7 | (iv) whether retention of the record is required for |
8 | purposes of protection of the public safety. |
9 | * * * |
10 | Section 3. Section 6301(b) of Title 42 is amended to read: |
11 | § 6301. Short title and purposes of chapter. |
12 | * * * |
13 | (b) Purposes.--This chapter shall be interpreted and |
14 | construed as to effectuate the following purposes: |
15 | (1) To preserve the unity of the family whenever |
16 | possible or to provide another alternative permanent family |
17 | when the unity of the family cannot be maintained. |
18 | (1.1) To provide for the care, protection, safety and |
19 | wholesome mental and physical development of children coming |
20 | within the provisions of this chapter. |
21 | (2) Consistent with the protection of the public |
22 | interest, to provide for children committing delinquent acts |
23 | programs of supervision, care and rehabilitation which |
24 | provide balanced attention to the protection of the |
25 | community, the imposition of accountability for offenses |
26 | committed and the development of competencies to enable |
27 | children to become responsible and productive members of the |
28 | community. |
29 | (3) To achieve the foregoing purposes in a family |
30 | environment whenever possible, separating the child from |
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1 | parents only when necessary for his welfare, safety or health |
2 | or in the interests of public safety. |
3 | (4) To provide means through which the provisions of |
4 | this chapter are executed and enforced and in which the |
5 | parties are assured a fair hearing and their constitutional |
6 | and other legal rights recognized and enforced. |
7 | (5) To use the least restrictive punitive sanctions | <-- |
8 | consistent with the protection of the community and the |
9 | rehabilitative rehabilitation needs of the a delinquent | <-- |
10 | child; and to use confinement as a last resort and to impose |
11 | it for the minimum amount of time that is consistent with the |
12 | protection of the public and the rehabilitative | <-- |
13 | rehabilitation needs of the a delinquent child. | <-- |
14 | (6) To employ whenever possible evidence-based | <-- |
15 | practices, with fidelity, at every stage of the juvenile |
16 | justice process. |
17 | Section 4. Sections 6303, 6307 and 6336 of Title 42 are |
18 | amended by adding subsections to read: |
19 | § 6303. Scope of chapter. |
20 | * * * |
21 | (c) Summary offenses generally.--In addition to the |
22 | provisions of subsection (a)(5) and notwithstanding the |
23 | exclusion of summary offenses generally from the definition of |
24 | "delinquent act" under section 6302, the provisions of sections |
25 | 6307 (relating to inspection of court files and records) and |
26 | 6336(d) (relating to conduct of hearings), insofar as section |
27 | 6336(d) relates to the exclusion of the general public from the |
28 | proceedings, shall apply to proceedings involving a child |
29 | charged with a summary offense when the proceedings are before a |
30 | judge of the minor judiciary. |
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1 | § 6307. Inspection of court files and records. |
2 | * * * |
3 | (c) Summary offenses.--The provisions of this section shall |
4 | apply to proceedings involving a child charged with a summary |
5 | offense when the proceedings are before a judge of the minor |
6 | judiciary. |
7 | § 6336. Conduct of hearings. |
8 | * * * |
9 | (g) Summary offenses.--The provisions of subsection (d), |
10 | insofar as it relates to the exclusion of the general public |
11 | from the proceedings, shall apply to proceedings involving a |
12 | child charged with a summary offense when the proceedings are |
13 | before a judge of the minor judiciary. |
14 | (h) Adjudication alternative.--The magisterial district |
15 | judge may refer a child charged with a summary offense to an |
16 | adjudication alternative program under section 1520 (relating to |
17 | adjudication alternative program) and the Pennsylvania Rules of |
18 | Criminal Procedure. |
19 | Section 5. Section 6337 of Title 42 is amended to read: |
20 | § 6337. Right to counsel. |
21 | (a) Presumption of indigency.-- |
22 | (1) Except as provided in section 6311 (relating to |
23 | guardian ad litem for child in court proceedings), a party is |
24 | entitled to representation by legal counsel at all stages of |
25 | any proceedings under this chapter and if he is without |
26 | financial resources or otherwise unable to employ counsel, to |
27 | have the court provide counsel for him. |
28 | (2) All children are presumed indigent for the purposes |
29 | of any proceedings under this chapter. The presumption may be |
30 | rebutted if the court ascertains that the child has the |
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1 | financial resources to retain counsel of his choice at his |
2 | own expense. The court shall not consider the financial | <-- |
3 | resources of the child's parent, guardian or custodian when |
4 | ascertaining whether the child has the financial resources to |
5 | retain counsel of his choice at his own expense. |
6 | (3) If a party appears without counsel the court shall |
7 | ascertain whether he knows of his right thereto and to be |
8 | provided with counsel by the court if applicable. The court |
9 | may continue the proceeding to enable a party to obtain |
10 | counsel. |
11 | (b) Waiver.--Counsel must be provided for a child unless his |
12 | parent, guardian, or custodian is present in court and |
13 | affirmatively [waive] waives it. However, the parent, guardian, |
14 | or custodian may not waive counsel for a child when their |
15 | interest may be in conflict with the interest or interests of |
16 | the child. If the interests of two or more parties may conflict, |
17 | separate counsel shall be provided for each of them. |
18 | Section 6. This act shall take effect in 60 days. |
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