BILL ANALYSIS Ó
AB 1043
Page 1
Date of Hearing: January 10, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1043 (Torres) - As Amended: May 4, 2011
SUMMARY : Specifies that any minor who is engaged in "sexting"
images of himself or herself or another minor may be adjudicated
a ward of the juvenile court. Specifically, this bill :
1)Defines "sexting" as creating, sharing, forwarding,
possessing, or soliciting or coercing another to create,
share, forward, or possess an image depicting sexual conduct,
as specified, using a handheld or other electronic device.
2)Specifies that if a minor is determined to be a ward of the
juvenile court because he or she engaged in "sexting" images
of himself or herself or another minor, the court shall order
the minor perform 24 hours of community service.
3)Specifies that is a minor repeatedly engages in "sexting," the
court shall order the minor to perform 40 hours of community
service.
EXISTING LAW :
1)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).]
2)Prohibits the possession or control of any matter,
AB 1043
Page 2
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,
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.)
3)States that any person under the age of 18 who persistently or
habitually refuses to obey the reasonable and proper orders or
directions of his or her parents, guardian, or custodian, or
who is beyond the control of that person, or who is under the
age of 18 years when he or she violated any ordinance of any
city or county of this state establishing a curfew based
solely on age, is within the jurisdiction of the juvenile
court which may adjudge the minor to be a ward of the court.
ÝWelfare and Institutions Code (WIC) Section 601(a).]
4)States that except for specified serious or violent crimes, a
minor who violates any of this state or of the United States,
or any ordinance of any city or county other than a curfew
based solely on age, is within the jurisdiction of the
juvenile court which may adjudge the minor to be a ward of the
court. ÝWIC Section 602(a).]
5)Specified that is a minor is found to be a person described in
Welfare and Institutions Code Section 601, the court may order
the minor to serve up to 20 hours of community service over a
period of 30 days. (WIC Section 727.5.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Technological
advances in hand held devices, such as cell phones, along with
an ever growing number of minors having such devices, has led
to a growing number of cases in which minors engage in
AB 1043
Page 3
creating, sharing, forwarding, or coercing other minors to
send sexually suggestive images of themselves or other minors.
Commonly referred to as 'sexting', this behavior has led to
cases of harassment, humiliation and even suicide of minors.
"In 2009, the Pew Research Center's Pew Internet & American Life
Project produced a report called 'Teens and Sexting', in which
they report:
a) '4% of cell-owning teens ages 12-17 say they have sent
sexually suggestive nude or nearly nude images of
themselves to someone else via text messaging
b) '15% of cell-owning teens ages 12-17 say they have
received sexually suggestive nude or nearly nude images of
someone they know via text messaging or on their cell phone
c) 'Older teens are much more likely to send and receive
these images: 8% of 17-year-olds with cell phones have sent
a sexually provocative image by text and 30% have received
nude or nearly nude image on their phone.
d) 'The Pew's focus groups revealed that there are three
main scenarios for sexting: 1) exchange of images solely
between two romantic partners; 2) exchanges between
partners that are shared with others outside the
relationship, and 3) exchanges between people who are not
yet in a relationship, but where one hopes to be.
e) 'Since the Pew Research Center's Internet & American
Life Project first starting tracking teen cell phone use,
the age in which American teens acquire their first cell
phone has consistently grown younger. In Pew's 2004 survey
of teens, 18% of teens age 12 owned a cell phone. In 2009,
58% of 12 year-olds own a cell phone. We also have found
that cell phone ownership increases dramatically with age:
83% of teens age 17 now own a cell phone, up from 64% in
2004.'
"These growing trends indicate this issue is not going away
and the people of the state of California will be better
served by laws that reflect changes in technology and their
use."
2)Differences between WIC Section 601 and 602 Wards : The
AB 1043
Page 4
juvenile court has jurisdiction over those minors who come
within WIC Section 601 or 602 provisions. Those minors
commonly referred to as "status offenders" come within the
jurisdiction of the juvenile court under WIC Section 601 for
non-criminal conduct such as running away, truancy, and curfew
violations. Minors who have committed criminal violations
come within the jurisdiction of the juvenile court under WIC
Section 602. This bill would allow a juvenile court to obtain
jurisdiction over a minor who was "sexting" under WIC Section
601.
The definition of "sexting" in this bill includes the definition
of sexual conduct found in Penal Code Section 311.4. The
possession or control of any material described by that
section is prohibited by Penal Code Section 311.11, with the
violator facing felony penalties. Therefore, under current
law, a minor who is found to be distributing obscene materials
would fall under the jurisdiction of the juvenile court under
WIC Section 602 because he or she has committed a criminal
violation. It is unclear why a minor who commits this
specific act should fall under the provisions of WIC Section
601 when he or she has violated a criminal code section, and
what benefit there would be in doing so.
3)Recent Study Shows "Sexting" Rare : In a recent study
published in Pediatrics, the official journal of the American
Academy of Pediatrics, show that "sexting" is much less
prevalent than previously thought. The study found that less
than 10% of youth surveyed reported appearing in or creating
nearly nude or nude images, or receiving such images in the
last year. ÝKimberly Mitchell, David Finkelhor, Lisa M. Jones
and Janis Wolak, Prevalence and Characteristics of Youth
Sexting: A National Study, Pediatrics, Dec. 2011, p. 4.]
Additionally, only 1% of the youth surveyed had received,
appeared in or created images that would violate child
pornography laws; 55% of those who did receive, appear in or
create "sexts" were 16 or 17. (Id.). In over 90% of the
incidences, every person involved was a minor; in the cases
where adults were involved, all adults were between the ages
of 18 and 21. (Id. at 5.)
4)Protected Speech : This bill requires a juvenile court to
impose mandatory community service on a minor who is
adjudicated a ward of the court he or she was found to be
"sexting." The definition of "sexting" includes the existing
AB 1043
Page 5
definition of sexual conduct found in Penal Code Section
311.4. The definition of "sexual conduct" found in Penal Code
Section 311.4 is 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
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
AB 1043
Page 6
(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
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
AB 1043
Page 7
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;
"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).]
AB 1043
Page 8
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
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
AB 1043
Page 9
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
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.]
AB 1043
Page 10
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.)
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.
5)Related Legislation: AB 321(Hernández) would have required 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.
AB 321 was held on the Assembly Appropriations Committee's
Suspense File.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
California Attorneys for Criminal Justice
California Public Defender's Association
Youth Law Center
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744
AB 1043
Page 11