BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 321
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          Date of Hearing:   April 5, 2011
          Counsel:                Milena Nelson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AB 321 (Hernandez) - As Amended:  March 30, 2011


           SUMMARY  :   Requires a court to order counseling and community 
          service in addition to any other fine, sentence, or as a 
          condition of probation, for any minor adjudicated a ward of the 
          court because of a Penal Code Section 311.11 violation related 
          to the possession or control of matter depicting sexual conduct 
          involving a minor.  Specifically,  this bill  :  

          1)Allows schools to offer classes, instruction, or programs 
            regarding the potential risks and consequences of creating and 
            sharing sexually suggestive or explicit materials through 
            cellular telephones, social networking Web sites, computer 
            networks, and other digital media.

          2)States that there are 285.6 million wireless subscribers in 
            the United States, and the average user sends 152.7 texts per 
            month.

          3)Defines "sexting" as the sending or receiving of sexually 
            explicit pictures or video images via cellular phone or 
            similar electronic device.  

          4)States that sexting is a growing problem among minors, citing 
            a 2008 survey by the National Campaign to Prevent Teen and 
            Unplanned Pregnancy which found that 20% of teens between the 
            ages of 13 and 19 have been sent or posted nude or semi-nude 
            pictures or videos of themselves.  

          5)States that teens generally send these images to an intended 
            recipient, but 38% of teens report that they have received 
            sexts that were meant for another person, but shared with 
            them.

          6)States that the potential for these images to reach a wide and 
            unknown audience can cause the person ridicule and greatly 
            compromise his or her future educational and career 








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            opportunities. 

          7)States that United States Senator Robert Menendez, has 
            introduced the SAFE Internet Act (S. 1047), which would 
            allocate $175 million to fund the program and authorize the 
            Director of the Bureau of Justice Assistance to make grants 
            available to schools, state agencies, and nonprofit 
            organizations to assist in providing education programs for 
            children about the dangers of sexting. 

          8)States that in an incident of cyberbullying, photos of a 
            sexual encounter can be recorded on a cell phone camera and 
            posted on the Internet within an hour. 

          9)States that according to the Pew Research Center, sexting has 
            become a form of relationship currency that causes girls, in 
            particular, to feel pressure to send sexually explicit images. 
             

          10)States that sexting extends beyond being a source of 
            embarrassment, but can also prevent those pictures in the 
            images from obtaining certain types of employment and even 
            scholarships.

          11)States that developments in technology and communications 
            have allowed for widespread dissemination of these damaging 
            images within moments, and that the nature of today's 
            technology is such that these images may never be recovered or 
            removed from the Internet. 

          12)States that counseling shall be at the expense of the minor's 
            parents, and that inability to pay for counseling does not 
            relieve the minor of his or her counseling requirement. 

           EXISTING LAW  :

          1)Prohibits the possession or control of any matter, 
            representation of information, data, or image, including, but 
            not limited to, any film, filmstrip, photograph, negative, 
            slide, photocopy, videotape, video laser disc, computer 
            hardware, computer software, computer floppy disc, data 
            storage media, CD-ROM, or computer-generated equipment or any 
            other computer-generated image that contains or incorporates 
            in any manner, any film or filmstrip, the production of which 
            involves the use of a person under the age of 18 years, 








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            knowing that the matter depicts a person under the age of 18 
            years personally engaging in or simulating sexual conduct, as 
            defined.  Violation of this section is a felony and shall be 
            punished by imprisonment in the state prison, or a county jail 
            for up to one year, or by a fine not exceeding $2,500, or by 
            both the fine and imprisonment.  (Penal Code Section 311.11.)

          2)Defines "sexual conduct" as any of the following, whether 
            actual or simulated: sexual intercourse, oral copulation, anal 
            intercourse, anal oral copulation, masturbation, bestiality, 
            sexual sadism, sexual masochism, penetration of the vagina or 
            rectum by any object in a lewd or lascivious manner, 
            exhibition of the genitals or pubic or rectal area for the 
            purpose of sexual stimulation of the viewer, any lewd or 
            lascivious sexual act as specified, or excretory functions 
            performed in a lewd or lascivious manner, whether or not any 
            of the above conduct is performed alone or between members of 
            the same or opposite sex or between humans and animals.  An 
            act is simulated when it gives the appearance of being sexual 
            conduct.  ÝPenal Code Section 311.4(d)(1).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "This bill 
            addresses the growing problem (among minors) that law 
            enforcement, the community, the media and opinion leaders 
            refer to as 'sexting.'  'Sexting' is an imprecise term that 
            refers to the sending of sexually explicit images via an 
            electronic device, most commonly a cell phone.

          "Members, the world around us is transforming as a result of 
            rapidly changing methods of communication. According to the 
            CTIA Wireless Association, 152.7 billion texts are sent each 
            month (2009 figure).  Children are no less affected by this 
            phenomenon, especially with the number of children who own 
            cell phones significantly increasing in recent years.  
            Approximately 40%-75% of middle school students own cell 
            phones, with even higher rates for high school students.

          "With this trend, communities across the nation are finding that 
            more and more children are engaging in 'sexting.'  According 
            to a 2008 survey (conducted by the National Campaign to 
            Prevent Teen and Unplanned Pregnancy), 20% of teens between 








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            the ages of 13 and 19 have sent nude images of themselves - 
            that's 1 out of every 5 children.  One of the main concerns 
            with 'sexting' is that it has become a form of 'relationship 
            currency', where one person feels pressured to send these 
            images in order to get closer to the other person.

          "We are well aware of the dangers of sexting as policy makers. 
            With a mere push of a button, these images can be disseminated 
            to a wide and unknown audience within seconds and is 
            impossible to undo.  Ridicule, torment, teasing, and bullying 
            commonly follow after these images are widely distributed.  In 
            some extremely unfortunate cases, teens (in Florida and Ohio) 
            have committed suicide because the trauma was too great for 
            them to deal with.

          "AB 321 seeks to penalize individuals who maliciously 
            disseminate sexually explicit electronic images of a minor 
            without his or her consent.  Specifically, it would require 
            those individuals to perform community service and undergo 
            counseling, in addition to anything the court deems is 
            appropriate.  Realizing the importance of raising awareness 
            and educating our youth about the dangers of 'sexting', AB 321 
            would also allow school districts to provide instruction 
            relating to the consequences of 'sexting.'"

           2)Protected Speech  :  This bill requires a juvenile court to 
            impose mandatory counseling and community service on a minor 
            who is adjudicated a ward of the court because of a Penal Code 
            Section 311.11 violation.  The definitions of "sexual conduct" 
            found within that Penal Code Section 311.11 and Penal Code 
            Section 311.4 are narrowly drafted to avoid freedom of speech 
            concerns under the First Amendment of the United States 
            Constitution.  

          The hallmark of protection of free speech under the First 
            Amendment is to allow for the "free trade in ideas" - even 
            ideas that the overwhelming majority of people might find 
            distasteful or discomforting.  ÝVirginia v. Black (2003) 538 
            U.S. 343; see also Texas v. Johnson (1989) 491 U.S. 397, 414 
            ("If there is a bedrock principle underlying the First 
            Amendment, it is that the government may not prohibit the 
            expression of an idea simply because society finds the idea 
            itself offensive or disagreeable.").]  Thus, the First 
            Amendment "ordinarily" denies states "the power to prohibit 
            Ýthe] dissemination of social, economic and political 








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            doctrines which a vast majority of its citizens believe to be 
            false and fraught with evil consequence."  ÝWhitney v. 
            California (1927) 274 U.S. 357, 374 (Brandeis, J., 
            dissenting).]  Even "Internet speech that is merely critical, 
            annoying, offensive, or demeaning enjoys constitutional 
            protection."  (Statement of the Anti-Defamation League on Hate 
            on the Internet before the Senate Committee on the Judiciary, 
            FDCH Pol. Transcripts, Sept. 14, 1999, available at 1999 WL 
            27594383.)  The First Amendment also affords protection to 
            symbolic or expressive conduct as well as to actual speech.  
            ÝSee, e.g., R. A. V. v. City of St. Paul (1992) 505 U.S. 377, 
            382; United States v. O'Brien (1968) 391 U.S. 367; Tinker v. 
            Des Moines Independent Community School Dist. (1969) 393 U.S. 
            503, 505.]

          However, the protections afforded by the First Amendment are not 
            absolute.  It has long been recognized that the government may 
            regulate certain categories of expression consistent with the 
            Constitution.  ÝSee, e.g., Chaplinsky v. New Hampshire (1942) 
            315 U.S. 568, 571-572 ("There are certain well-defined and 
            narrowly limited classes of speech, the prevention and 
            punishment of which has never been thought to raise any 
            Constitutional problem").]  The First Amendment permits 
            "restrictions upon the content of speech in a few limited 
            areas, which are 'of such slight social value as a step to 
            truth that any benefit that may be derived from them is 
            clearly outweighed by the social interest in order and 
            morality'."  ÝR. A. V. v. City of St. Paul, supra, at 382-383 
            (quoting Chaplinsky v. New Hampshire, supra, at 572).]

              a)   Sanctioning Speech to Protect Minors  :  When it comes to 
               restricting the display of sexually explicit images, there 
               is perhaps no better judicially or legislatively accepted 
               justification than protecting minors.  ÝSee Reno v. ACLU 
               (1997) 521 U.S. 844, 875.]  The Supreme Court has 
               recognized that a state may legitimately sanction 
               activities which amount to harmful conduct rather than 
               "pure speech," particularly when the conduct in question 
               involves the use of children to make sexual material for 
               pedophiles.  ÝNew York v. Ferber (1982) 458 U.S. 747, 
               770-771.]  The use of children as subjects of pornographic 
               materials is harmful to the physiological, emotional, and 
               mental health of the child.  ÝGlobe Newspaper Co. v. 
               Superior Court (1982) 457 U.S. 596, 757; Osborne v. Ohio 
               (1990) 495 U.S. 103, 109.]  The psychological effect of 








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               visually recording the sexual exploitation of a child is 
               devastating and its elimination is of surpassing 
               importance."  (New York v. Ferber, supra, 458 U.S. 747, 
               757.)  Since the child's image is permanently recorded, the 
               pornography may haunt the victim for a lifetime as the 
               child will be aware that the offensive photograph or film 
               is circulating through the masses.  ÝId. at 759 n.10 
               (quoting Shouvlin, Preventing the Sexual Exploitation of 
               Children:  A Model Act (1981) 17 Wake Forest L. Rev. 535, 
               545.]  The crime is the affront to the dignity and privacy 
               of the child and the exploitation of the child's 
               vulnerability:

             "Human dignity is offended by the pornographer.  American law 
               does not protect all human dignity; legally, an adult can 
               consent to its diminishment.  When a child is made the 
               target of the pornographer-photographer, the statute will 
               not suffer the insult to the human spirit, that the child 
               should be treated as a thing."  ÝUnited States v. Wiegand 
               (9th Cir. 1987) 812 F.2d 1239, 1245 cert. den. (1987) 484 
               U.S. 856.]  

              b)   The "Lascivious Exhibition" of Children is Not Protected 
               Speech  :  In United States v. Knox (3d Cir. 1994) 32 F.3d 
               733, the United States Court of Appeals for the Third 
               Circuit held that a lascivious exhibition of the genitals 
               or pubic area may constitute unprotected child pornography 
               under federal law "even when those areas are covered by an 
               article of clothing and are not discernible."  (Id. at 
               754.)  In Knox, all of the young children "wore bikini 
               bathing suits, leotards, underwear, or other abbreviated 
               attire while they were being filmed."  (Id. at 737.)  
               Despite the absence of nudity, the images were held to be 
               child pornography in part because the "photographer would 
               zoom in on the children's pubic and genital area and 
               display a close-up view for an extended period of time."  
               (Id.)  

             The term "lascivious" is defined as "tending to excite lust; 
               lewd; indecent; obscene; sexual impurity; tending to 
               deprave the morals in respect to sexual relations; 
               licentious."  ÝBlack's Law Dictionary (6th ed. 1990) p. 
               882.]  "Lascivious" is not unconstitutionally vague since 
               it has same meaning as "lewd," a term which has been held 
               to be constitutional by United States Supreme Court; 








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               "lascivious exhibition of the genitals" is not limited to 
               depictions of minors presenting sexual activity or 
               willingness to engage in that activity, but includes all 
               depictions featuring children as sexual objects so 
               presented as to arouse or satisfy sexual cravings of 
               voyeur.  ÝUnited States v. Wiegand (9th Cir. 1987) 812 F.2d 
               1239, cert. den. (1987) 484 U.S. 856 and criticized in 
               United States v. Amirault (1st Cir. 1999) 173 F.3d 28.]

              c)   Determining Lasciviousness  :  The Dost factors were 
               articulated in order to provide a test for determining 
               whether a visual depiction of a minor constitutes a 
               "lascivious exhibition of the genitals or pubic area."  
               ÝUnited States v. Dost (S.D. Cal. 1986) 636 F. Supp 828, 
               832.]  The Dost factors are as follows: 

             "(1) Whether the genitals or pubic area are the focal point 
               of the image; (2) whether the setting of the image is 
               sexually suggestive (i.e., a location generally associated 
               with sexual activity); (3) whether the child is depicted in 
               an unnatural pose or inappropriate attire considering her 
               age; (4) whether the child is fully or partially clothed, 
               or nude; (5) whether the image suggests sexual coyness or 
               willingness to engage in sexual activity; and (6) whether 
               the image is intended or designed to elicit a sexual 
               response in the viewer."  ÝUnited States v. Amirault, 
               supra, 173 F.3d 28, 31 (citing Dost, supra 636 F. Supp. at 
               832).]

             The analysis is qualitative and no single factor is 
               dispositive.  ÝUnited States v. Villard (3d Cir. 1989) 885 
               F.2d 117, 122.]  Many federal courts have relied on the 
               Dost factors for determining lasciviousness, most notably 
               the Ninth Circuit.  ÝSee United States v. Arvin (9th Cir. 
               1990) 900 F.2d 1385m 1390-92 & n.4, cert. den. (1991) 498 
               U.S. 1024; United States v. Wolf (10th Cir. 1989) 890 F.2d 
               241, 244-246; United States v. Rubio (5th Cir. 1987) 834 
               F.2d 442, 448 (discussing the six Dost factors without 
               citing to the Dost case); United States v. Nolan (1st Cir. 
               1987) 818 F.2d 1015, 1019 n.5; United States v. Mr. A. 
               (E.D. Mich. 1991) 756 F.Supp. 326, 328-29.]

             Further, in United States v. Wiegand, supra, 812 F.2d 1239, 
               1244-45, the Ninth Circuit Court of Appeals stated that the 
               child subject need not to have actually engaged in sexually 








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               explicit conduct with a lascivious intent.  "Lascivious 
               exhibition of the genitals or pubic area" of a minor 
               necessarily requires only that the material depict some 
               "sexually explicit conduct" by the minor which appeals to 
               the lascivious interest of the intended audience.  The harm 
               Congress attempted to eradicate by enacting child 
               pornography laws is present when a photographer unnaturally 
               focuses on a minor child's clothed genital area with the 
               obvious intent to produce an image sexually arousing to 
               pedophiles.  (United States v. Knox, supra, 32 F.3d 733, 
               750.) 

              d)   Punishing Guilty Thoughts and Overbreadth  :  In United 
               States v. Williams (2007) 444 F.3d 1286, a defendant 
               appealed the decision entered by the United States District 
               Court for the Southern District of Florida that convicted 
               him of promoting, or "pandering," material "in a manner 
               that reflects the belief, or that is intended to cause 
               another to believe," that the material contains illegal 
               child pornography under Title 18 United States Code section 
               2252A(a)(3)(B).  "Pandering" is defined as the catering or 
               exploitation of the weaknesses of others, especially, "to 
               provide gratification for others' desires."  ÝSee Merriam 
               Webster Online Dictionary (last visited March 14, 2008) 
               .]

             The Williams court recognized that Congress has struggled to 
               draft legislation that captures the truly objectionable 
               child-exploitative materials while staying within the 
               boundaries of the Supreme Court's First Amendment 
               jurisprudence.  (United States v. Williams, supra, 444 F.3d 
               1286, 1290.)  The court stated, "Protection of our children 
               against sexual abuse and predatory pedophiles is of 
               extraordinary importance.  We do not question that strong 
               federal laws are needed, but they must pass constitutional 
               muster.  In other words, Congress may not 'burn the house 
               to roast the pig'."  ÝId. (quoting Butler v. Michigan 
               (1957) 352 U.S. 383).]

             The Williams court found it was particularly objectionable to 
               criminalize speech that "reflects the belief" those 
               materials constitute obscene child pornography because no 
               regard is given to the actual nature or even the existence 
               of the underlying material.  (United States v. Williams, 
               supra, 444 F.3d 1286, 1290, 1298.)  Liability can be 








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               established based purely on promotional or solicitous 
               speech reflecting that an individual finds certain 
               depictions of children lascivious.  (Id. at 1299.)  The 
               court reasoned that Title 18 United States Code section 
               2252A(a)(3)(B):

             " . . . does not seek to attach liability to the materials, 
               but to the ideas and images communicated to the viewer by 
               those materials.  This shifts the focus from a community 
               standard to the perverted but privately held belief that 
               materials are lascivious.  Through this lens, virtually all 
               depictions of children, whom to pedophiles are highly 
               eroticized sexual objects, are likely to draw a deviant 
               response.  Many pedophiles collect and are sexually 
               stimulated by nonpornographic depictions of children such 
               as commercially produced images of children in clothing 
               catalogs, television, cinema, newspapers, and magazines - 
               otherwise innocent pictures that are not traditionally seen 
               as child pornography and which non-pedophiles consider 
               innocuous."  ÝId. at §§ 1299-1230 see, e.g. Adler, The 
               Perverse Law of Child Pornography (2001) 101 Colum. L.Rev. 
               209, 259-260.  The highly eroticized use of children in 
               fashion, television, and advertising is now the "soft porn" 
               of child pornography.  Members of the North American Man 
               Boy Love Association reportedly find erotic stimulation by 
               watching children on network television, the Disney 
               channel, and mainstream films.]  

             Freedom of the mind is a highly protected position in 
               America's constitutional heritage.  (Id.)  Even when an 
               individual's ideas concern immoral thoughts about images of 
               children, the Supreme Court has steadfastly maintained the 
               right to think freely.  As the court stated in Ashcroft v. 
               Free Speech Coalition (2002) 535 U.S. 234, 243, "First 
               Amendment freedoms are most in danger when the government 
               seeks to control thought or justify its laws for that 
               impermissible end.  The right to think is the beginning of 
               freedom, and speech must be protected from the government 
               because speech is the beginning of thought."  The court 
               reiterated that the concern with child pornography is 
               "physiological, emotional, and mental health" of children, 
               and thus regulation is permissible only when targeted at 
               the evils of the production process itself, and not the 
               effect of the material on its eventual viewers.  (Id.)









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              e)   No Expansion of the Definition of "Sexual Conduct  ": This 
                                                                             bill does not expand the Penal Code's definition of sexual 
               conduct and therefore does not implicate First Amendment 
               concerns.  

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California State Sheriffs' Association

          Opposition 
           
          California Public Defenders Association 
          Youth Law Center
           

          Analysis Prepared by  :    Milena Nelson / PUB. S. / (916) 
          319-3744