BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 145 (Pavley)
As Amended April 2, 2013
Hearing date: April 9, 2013
Penal Code
JM:mc
CHILD PORNOGRAPHY POSSESSION
LURING CHILDREN FOR SEXUAL ABUSE
HISTORY
Source: Ventura County District Attorney
Prior Legislation: AB 1008 (Condit) - Ch. 1316, Stats. 1989
AB 181 (Kuykendall) - Ch. 590, Stats. 1997
Proposition 83 of the 2006 Gen. Election
SB 1128 (Alquist) - Ch. 337, Stats. 2006
Support: California District Attorneys Association; California
Police Chiefs Association; Crime Victims United of
California
Opposition:California Attorneys for Criminal Justice; California
Public Defenders Association
KEY ISSUES
SHOULD THE PRISON TERM FOR POSSESSION OF CHILD PORNOGRAPHY WITH
A PRIOR CONVICTION FOR ANY CRIME THAT REQUIRES SEX OFFENDER
REGISTRATION BE RAISED FROM 2, 3 OR 6 YEARS TO 3, 5, OR 7 YEARS?
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(CONTINUED)
SHOULD THE PENALTY FOR POSSESSION OF CHILD PORNOGRAPHY BE A PRISON
TERM OF 3, 5, OR 7 YEARS WHERE THE DEFENDANT POSSESSED MORE THAN 600
IMAGES, AT LEAST 10 OF WHICH DEPICT PREPUBESCENT MINORS OR MINORS
UNDER THE AGE OF 12 YEARS, OR THE IMAGES DEPICT ACTS OF SEXUAL
SADISM OR MASOCHISM?
SHOULD THE CRIME OF SENDING OR DISPLAYING HARMFUL MATTER TO A MINOR
WITH THE INTENT OF INDUCING THE MINOR TO ENGAGE IN PHYSICAL SEXUAL
CONDUCT WITH THE PERPETRATOR BE REDRAFTED SO AS TO RAISE THE PENALTY
TO A PRISON TERM OF 3, 5 OR 7 YEARS IN A CASE WHERE THE PERPETRATOR
USED CHILD PORNOGRAPHY THAT CONSTITUTES HARMFUL MATTER (OBSCENITY
FOR A MINOR), AND TO IMPOSE GRADUATED PENALTIES FOR LESS EGREGIOUS
ACTS?
PURPOSE
The purposes of this bill are to 1) increase the prison sentence
for possession of child pornography (depictions of minors
engaging in actual or simulated sexual conduct) to 3, 5 or 7
years in prison under the following circumstances: the defendant
has been previously convicted of a crime for which sex offender
registration is required, the defendant possessed more than 600
images, 10 or more of which depicted minors under the age of 12
or who are prepubescent, or the images depicted sexual sadism or
masochism; 2) provide that these aggravated child pornography
possession offenses are alternate felony-misdemeanors
(wobblers), with the exception of a straight felony for
recidivists; 3) to raise the prison term triad to 3, 5 or 7
years for the wobbler of using harmful matter (obscenity for a
minor) to induce a child to engage in specified physical sexual
conduct if the harmful matter depicted minors engaged in sexual
conduct, as defined; and 4) set graduated penalties for a
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defendant who used less egregious sexual material and intended
to induce the minor to engage in less egregious sexual conduct.
Crimes Involving Obscenity and Related Matters<1>
Existing law provides that possessing or importing into
California any obscene matter for sale or distribution is guilty
of a misdemeanor for a first conviction. A second or subsequent
conviction is a felony, with increased fines. (Pen. Code ��
311.2, subd. (a) and 311.9.)
Existing law provides that every person who sends, brings,
possesses, prepares, publishes, produces, duplicates or prints
any obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct, with the intent to
distribute, exhibit, or exchange such material, is guilty of
either a misdemeanor or a felony, punishable by imprisonment in
the county jail up to one year or in the state prison for 16
months, 2 or 3 years and a fine not to exceed $10,000. (Pen.
Code � 311.1.)
Existing law specifies that every person who sends, brings,
possesses, prepares, publishes, produces, duplicates or prints
any obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct for commercial purposes
is guilty of a felony, punishable by imprisonment in the state
prison for two, three, or six years and a fine up to $100,000.
(Pen. Code � 311.2, subd. (b).)
Existing law provides that any person who hires or uses a minor
to assist in the preparation or distribution of obscene matter
is guilty of a misdemeanor. If the person has a prior
conviction, the crime is a felony. (Pen. Code � 311.4, subd.
(a).)
Existing law provides that any person who hires or uses a minor
to assist in the possession, preparation or distribution of
obscene matter for commercial purposes is guilty of a felony,
---------------------------
<1> For purposes of brevity and clarity, descriptions of some
related statutes are excluded from this summary.
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punishable by imprisonment in the state prison for three, six,
or eight years. (Pen. Code � 311.4, subd. (b).)
Production, Distribution and Possession of Child Pornography
Existing law provides that every person who sends, brings,
possesses, prepares, publishes, produces, duplicates or prints
any matter depicting a person under the age of l8 years engaging
in or simulating sexual conduct (sexual posing, masturbation,
sex acts) to distribute, exhibit, or exchange with a minor is
guilty of a felony, punishable by imprisonment in the state
prison for 16 months, 2 or 3 years. (Pen. Code � 311.2, subd.
(d).)
Existing law provides that possession of material that depicts a
person under 18 years of age engaged in actual or simulated
sexual conduct is an alternate felony-misdemeanor, punishable by
imprisonment in the county jail for up to 1 year, or by
imprisonment in state prison for 16 months, 2 years, or 3 years,
or by a fine of up to $2,500, or both. (Pen. Code � 311.11,
subd. (a).)
Existing law provides that if a criminal defendant is convicted
of possession of material that depicts a person under the age of
18 engaged in actual or simulated sexual conduct and the
defendant has been previously convicted of any crime for which
the defendant must register as a sex offender, the defendant is
guilty of a felony, punishable by a term of 2, 4, or 6 years in
prison and a fine of up to $10,000. (Pen. Code � 311.11, subd.
(b).)
Existing law provides that crimes involving depictions of minors
engaged in actual or simulated sexual conduct) does not apply to
"drawings, figurines, statues, or any film rated by the Motion
Picture Association of America [MPAA]." (Pen. Code � 311.11,
subd. (d).)
Existing law , as interpreted by relevant appellate decisions,
provides that Penal Code Section 311.11 "requires a real minor
and also requires knowledge of minority on the part of the
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perpetrator." (People v. Kurey (2001) 88 Cal.App.4th 840, 847.)
Existing law provides that the state can prohibit non-obscene
matter that depicts a person under the age of 18 personally
engaging in or personally simulating sexual conduct. Such laws
are based on the compelling state interest in protecting
children from abuse. (New York v. Ferber (1982) 458 U.S. 747.)
Existing law includes the following definitions:
� "Matter" is broadly defined, as "any book, magazine,
newspaper, or other printed or written material, or any
picture, drawing, photograph, motion picture, or other
pictorial representation, or any statue or? figure, or any
recording, transcription, or mechanical, chemical, or
electrical reproduction, or any other article, equipment?
or material." Matter also includes "[commercial] live or
recorded telephone messages." (Pen. Code � 311, subd.
(b).)
� Sexual conduct, actual or simulated, is defined as:
masturbation, sexual intercourse, oral copulation, anal
intercourse, bestiality, sexual sadism, lewd or lascivious
penetration of the vagina or rectum by any object,
exhibition of the genital, pubic or rectal areas for
purposes of sexual stimulation of the viewer, and lewdly
performed excretory functions. (Pen. Code � 311.4.)
� Obscene matter is matter, taken as a whole, that to the
average person, applying contemporary statewide standards,
appeals to the prurient interest [and]? depicts or
describes sexual conduct in a patently offensive way and?
lacks serious literary, artistic, political, or scientific
value. (Pen. Code � 311, subd. (a).)
� "Distribute" is defined as to "transfer possession of,
whether with or without consideration." (Pen. Code � 311,
subd. (d).)
� "Harmful Matter" is essentially obscenity from the
perspective of a minor: Material that, to the average
person applying community standards, appeals to prurient
interests and which depicts or describes sexual conduct
in a patently offensive manner and which lacks serious
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artistic, literary political or scientific value for
minors. (Penal Code � 313.)
Existing law provides that one who distributes material or
sends "harmful matter" to a minor by any means, including but
not limited to, telephone messages, electronic mail or the
Internet, with the intent to seduce the minor into engaging in
"sexual act involving physical contact between the perpetrator
and the minor"<2> is guilty of an alternate
misdemeanor-felony, punishable by imprisonment for up to one
year in the county jail or imprisonment in the state prison
for 16 months, two years or three years.<3> A subsequent
convictions is a felony, with a prison term of 16 months, two
years or three years. (Pen. Code � 288.2; People v. Jensen
(2003) 114 Cal.App.4th 224, 239-241.)
Existing law provides that a person who contacts or
communicates with a minor for the purpose of committing a
specified sex crime is guilty of a felony, punishable by the
prison terms prescribed for the sex crime the person intended
to commit. This crime includes an element that the defendant
knew or should have known the person contacted was a minor.
(Pen. Code � 288.3.)
Existing law provides that a person who has an unnatural
sexual interest in children who arranges a meeting with a
minor, or a person the defendant believes is a minor, for
purposes of engaging in sexual activity is guilty of a
--------------------------
<2> People v. Jensen (2003) 114 Cal.App.4th 224, 239-241
construed the term seduction in the context of Section 288.2 to
mean physical sexual conduct between the perpetrator and the
minor.
<3> It is a defense to a prosecution under Section 288.2 that
prurient matter was given to a child by a parent in aid of
legitimate sex education or that such matter was given to a
child in aid of legitimate scientific or educational purposes.
Telephone carriers do not violate Section 288.2 by
transmitting messages with prurient content or performing
related services.
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misdemeanor. If the defendant has been previously convicted
of a crime for which sex offender registration is required,
the defendant is guilty of a felony. If the defendant goes to
the arranged meeting place, the crime is a felony, punishable
by imprisonment in state prison for two, three of four years.
(Pen. Code � 288.4.)
This bill increases the penalty for a conviction of possession
of child pornography by a person with a previous conviction for
possession of child pornography or any crime for which the
person must register as a sex offender from a prison term of
two, four or six years in prison to a term of three, five or
seven years.
This bill provides that where a defendant is convicted of
possession of child pornography and one of the following
circumstances is established, the defendant shall be guilty of
an alternate felony-misdemeanor, punishable by a prison term of
three, five or seven years and a fine of up to $10,000, or by a
fine of up to $2,500, imprisonment in the county jail for up to
one year or both:
The material contains more than 600 images of child
pornography and 10 or more images depict prepubescent
minors or minors under 12-years-of-age.
The material portrays sexual sadism or sexual masochism
involving minors
This bill defines sexual sadism as the intentional infliction of
pain for purposes of sexual gratification or stimulation and
sexual masochism as the experiencing of pain for purposes of
sexual gratification or stimulation.
This bill redefines the crime of using harmful matter to seduce
a child in the following manner:
The crime is an alternate felony-misdemeanor, punishable
by imprisonment in the county jail for up to one year, a
fine of up to $1,000, or both, or by imprisonment in state
prison for three, five or seven years and a find of up to
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$10,000 under the following circumstances:
o The defendant furnished, displayed or
otherwise presented to the minor harmful matter -
obscene material from the perspective of a minor -
that also depicted minors engaged in sexual conduct,
as defined by the child pornography laws.
o The defendant used any means of communication,
including electronic communication, in-person contact,
or any delivery or mail service.
o The defendant intended to induce or persuade
the minor to engage in sexual acts involving sexual
intercourse, sodomy, oral copulation, sexual
penetration or the touching by either party of an
intimate body part of the other.
Where all the elements of the crime are established,
except that the defendant used either harmful matter or
child pornography, the crime is an alternate
felony-misdemeanor, punishable by imprisonment in the
county jail for up to one year, a fine of up to $1,000, or
both, or by imprisonment in state prison for two, three or
four years and a find of up to $10,000
Where all the other elements of the crime are
established, but the defendant intended that the minor
engage in sexual conduct that did not involve sexual
intercourse, sodomy, oral copulation, sexual penetration or
the touching by one party of an intimate body part of the
other, the crime is an is an alternate felony-misdemeanor,
punishable by imprisonment in the county jail for up to one
year, a fine of up to $1,000, or both, or by imprisonment
in state prison for 16 months, two years or three years and
a find of up to $10,000
This bill defines an "intimate body part"<4> as the sexual
organ, anus, groin or buttocks of any person, or the breast of a
female.
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<4> This definition is taken from the crime of sexual battery in
Penal Code Section 243.4.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
that the, ". . . population in the State's 33 prisons has been
reduced by over 24,000 inmates since October 2011 when public
safety realignment went into effect, by more than 36,000 inmates
compared to the 2008 population . . . , and by nearly 42,000
inmates since 2006 . . . ." Plaintiffs, who oppose the state's
motion, argue in part that, "California prisons, which currently
average 150% of capacity, and reach as high as 185% of capacity
at one prison, continue to deliver health care that is
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constitutionally deficient."
In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error; whether a measure proposes
penalties which are proportionate, and cannot be achieved
through any other reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Child pornography production necessarily involves the
abuse of children, such as capturing images of infants
being raped. The United States Department of Justice
(DOJ) estimates that pornographers have recorded the
abuse of more than one million children in the U.S.
alone, with 200 new images posted daily. DOJ also
reports an increasing trend towards younger victims,
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including infants, and greater brutality. When images
are instantly sent around the world through the
Internet, children are re-victimized long after the
physical abuse. A recent New York Times story, "The
Price of Stolen Childhood," profiled young people
driven into virtual seclusion because sexual images of
them are spread across the Internet.
This bill sets meaningful penalties for the most
culpable child pornography possessors, such as those
who possess thousands of images of infants and
toddlers engaged in sadistic or masochistic sexual
acts. Without strong deterrents, the demand created
by child pornography possessors will fuel production
and distribution of images that severely harm
children.
California has the weakest child pornography
possession law in the nation, with the sentences
ranging from probation to three years in prison.
Child pornography possession can net a life sentence
in some states and a 20-year federal sentence where
the images are of children under the age of 12 years.
Unlike other states, California does not impose higher
penalties where the defendant possessed myriad or
especially egregious sexual images of children.
Recently, the terms "child abuse images or material"
and "depicted child sexual abuse material" have been
adopted by scholars and law enforcement to dispel the
false implications of consent and to eliminate the
distance from the abusive nature of material the term
pornography implies.
A range of research addresses the link between child
pornography and the perpetration of child sexual
abuse.
o According at the Mayo Clinic (2008), 30% to 80% of
individuals who viewed child pornography and 76% of
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individuals who were arrested for Internet child
pornography had molested a child.
o A 2008 longitudinal study of convicted child
molesters in the U.S. published by journal of the
International Society for Research in Aggression,
found that use of pornography correlated significantly
with the rate of sexually reoffending. In addition, it
was found that the content pornography containing
deviant content was a high risk factor for all test
groups.
o A study by the American Federal Bureau of Prisons
(2009) found that 85% of child pornography offenders
had admitted to sexually abusing minors.
o A 1987 report by the U.S. National Institute of
Justice described "a disturbing correlation between
traders of child pornography and acts of child
molestation."
SB 145 also provides increased penalties for
situations in which harmful material is used with the
intent to "groom" minors for a variety of sexual
purposes. The use of images of child sexual abuse to
induce a child to engage in sexually abusive acts with
an adult perpetrator greatly increases the harm to
children and the culpability of the perpetrator.
Finally, it must be noted that while the bill
authorizes increased penalties for egregious crimes,
the increased sentences are optional for prosecutors
and judges. The legislation still permits a judge in
an appropriate case, to give a misdemeanor
disposition. The bill only allows a sentence of more
than three years in rare, truly egregious cases.
2. Statutory Definition of Child Pornography
Penal Code Section 311.11 criminalizes depictions of minors
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engaged in actual or simulated "sexual conduct,"<5> which is more
commonly described as "child pornography." Until 1994, child
pornography was defined to mean depictions of children under the
age of 14 engaged in a sexual conduct. In 1994, child pornography
was defined as depicting any person under the age of 18 years.
However, when the age standard for child pornography was set to
include images of any minor, the definition of "sexual conduct"
did not change. That definition is broad enough to include not
only graphic depictions of sexual intercourse, oral copulation and
sodomy, but also what could be characterized sexually oriented
posing. Thus, the range of prohibited depictions makes it
difficult to assess exactly what a "child pornography" conviction
means in any particular instance - at least according to the
letter of the law. Child pornography can range from the most
graphic and hideous
depiction of the rape of a prepubescent child to topless posing of
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<5> "Sexual conduct" for purposes of these statutes means 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 defined in Section
288, 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. (Penal Code � 311.4(d).)
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a rebellious 17-year old.<6> Media reports have documented
prosecutions of minors for so-called "sexting"<7> - the sending
sexual photos of oneself to friends and others.
3. Difference between Obscenity or Harmful Matter and Child
Pornography
The concepts of obscenity and child pornography are very
different. Essentially, obscenity is illegal because of the
negative effects it has on the person exposed to the material.
Harmful matter is obscenity from the perspective of a minor.
Obscenity is not limited to visual depictions
Child pornography is illegal not because of the effect it would
have on the viewer of the material, but because children are
exploited and abused in the making of child pornography. That
is why drawings and computer generated images of "minors"
engaged in sexual conduct is not child pornography. Images of
fictitious children engaged in sexual conduct could, of course,
be found to be obscene if the legal standards were met.
4. Higher Penalties for Possession of Child Pornography based on
the Number of Images and the Egregious Nature of the Images
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<6> The complexity of Section 311.11 is further illustrated by
exceptions to its application. The section does not apply to
"drawings, figurines, statues, or any film rated by the Motion
Picture Association of America [MPAA]." Possession of
depictions of conduct that perhaps would be routine or
unremarkable in rated films or in material that might be
accepted as "art," constitutes a crime under Section 311.11 if
the depictions do not appear in such contexts. For example, an
unrated documentary or other accurate depiction of relatively
common behavior of high school students likely would be criminal
under a broad interpretation of Section 311.11.
<7> See, e.g., Sexting' Shockingly Common Among Teens, (CBS
News), http://www.cbsnews.com/stories/
2009/01/15/national/main4723161.shtml.
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Penal Code Section 311.11 prohibits possession of "any" matter
depicting minors engaged in sexual conduct, commonly described
as child pornography. Prosecutors have sought multiple
convictions and penalties in cases where the defendant possessed
a large number of images child pornography. However, the
appellate courts have found that the word "any" in the child
pornography law is ambiguous, as any mean one image, or multiple
images, including sexual images of more than minor, possessed at
one time. An ambiguity in a criminal statute must be
interpreted in favor of the defendant. Thus, a defendant who
possesses multiple items of child pornography on one occasion is
guilty of only one crime. (People v. Manfredi (2008) 169 Cal.
App. 4th 622, 631.)
To address the issue discussed in Manfredi, this bill authorizes
a higher penalty for possession of more than 600 prohibited
images, at least 10 of which depicted prepubescent minors or
minor under the age of 12 years. The bill also authorizes a
higher penalty where the material depicted minors engaged in
sexual sadism or masochism.
SHOULD A DEFENDANT RECEIVE A HIGHER SENTENCE WHERE THE DEFENDANT
POSSESSED MORE THAN 600 IMAGES OF CHILD PORNOGRAPHY, OF WHICH AT
LEAST 10 DEPICTED MINORS WHO ARE PREPUBESCENT OR UNDER THE AGE
OF 12?
SHOULD A DEFENDANT RECEIVE A HIGHER SENTENCE WHERE THE DEFENDANT
POSSESSED CHILD PORNOGRAPHY DEPICTING SEXUAL SADISM OR
MASOCHISM?
5. Statutes Concerning the Luring of Children for Sexual Crimes
and other Specified Offenses
Penal Code Sections 288.2, 288.3 and 288.4 are related statutes
that describe crimes committed where an adult lures or induces a
minor to engage in sexual crimes or sexual conduct, or attempts
to do so. Section 288.2 includes an element that the
perpetrator use sexual material, while the others do not include
such an element.
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Section 288.2 was enacted in 1989 and, in part, referred to the
use of a telephone to lure a minor. The statute was amended in
1997 to include electronic communications. Section 288.2
specifically involves the use of "harmful matter" (material that
is obscene for a child) to "seduce a minor," which appellate
courts have found to means the intent to induce the child to
engage in physical sexual conduct with the perpetrator. (People
v. Jensen (2003) 114 Cal.App.4th 224, 236-239.)
Sections 288.3 and 288.4 were enacted in 2006 by Proposition 83
(Jessica's Law) and SB 1128 (Alquist) respectively. Section
288.3 prohibits a person from contacting or communicating with a
minor with the intent to commit various sex crimes, child
pornography offenses and kidnapping, which often involves a
sexual motivation or intent. The penalty for a violation of
Section 288.3 is the punishment for an attempt to commit the
intended crime.
Section 288.4 provides that a person who is motivated by sexual
interest in minors and who arranges a meeting with a minor is
guilty of a misdemeanor. If the perpetrator goes to the place
of the meeting, the crime is a felony. It is not necessary for
the prosecutor to prove that the perpetrator specifically
intended to engage in sexual acts with the minor.
6. Amendments in this Bill to Penal Code Section 288.2 - the use
of Sexual Material to Induce a Minor to Engage in Sex Acts
with an Adult
The amendments in this bill to Section 288.2 set a range of
penalties for the use of sexual material to induce or persuade a
minor to engage in sexual acts with or for the perpetrator. The
highest penalties are intended to apply to the most egregious
crime - the use of harmful (obscene) matter that is also child
pornography, with the intention of engaging in substantial
sexual acts with the minor, such as vaginal or anal intercourse
or the touching of the intimate body parts of the other person.
As noted elsewhere in this analysis, harmful matter is obscene
material from the perspective of a minor. Where this harmful
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matter is composed of depictions of actual minors engaged in
sexual conduct, a minor was sexually exploited and abused in the
production of the material, and the material is by definition
harmful to a minor. Such material would appear to be the worst
form of child pornography. The use of such material to induce a
minor to engage in substantial sex acts with an adult, likely by
convincing the minor that the conduct depicted is acceptable or
normal, arguably establishes serious culpability.
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Where the material used is harmful matter that does not involve
depictions of children engaged in sexual conduct, or where the
material is composed only of relatively less egregious
depictions of sexual conduct by minors, the defendant's
culpability is arguably less profound. However, this crime
still involves the defendant's intention to engage in
substantial sexual acts with a minor.
The least egregious form of the crime would appear to be cases
where the defendant used either harmful matter involving adult
sexual activity, or relatively less egregious depictions of
minors engaged in sexual activity<8>, and the defendant did not
intend to engage in sexual acts that involve sexual physical
contact between the defendant and the minor. For example, the
defendant may have intended that the minor pose for nude photos.
This offense carries the lowest penalty, although it can still
be charged as a felony.
SHOULD THE CRIME OF USING HARMFUL MATTER TO INDUCE A CHILD TO
ENGAGE IN SUBSTANTIAL SEXUAL CONDUCT, SUCH AS SEXUAL INTERCOURSE
AND SODOMY, BE AMENDED TO PROVIDE HIGHER PENALTIES WHERE THE
PERPETRATOR USED THE WORST FORMS OF CHILD PORNOGRAPHY - IMAGES
OF SEXUAL CONDUCT THAT IS OBSCENE FROM THE PERSPECTIVE OF A
MINOR?
WHERE THE DEFENDANT USED LESS EGREGIOUS FORMS OF CHILD
PORNOGRAPHY OR HARMFUL MATTER, OR WHERE THE PERPETRATOR DID NOT
INTEND TO ENGAGE PHYSICAL SEXUAL CONTACT WITH THE MINOR, SHOULD
THE PENALTIES BE SUBSTANTIAL, BUT LESS SEVERE THAN IN THE MOST
EGREGIOUS CASES?
7. Sentencing Considerations
This bill increases prison terms. Members may wish to discuss
whether, because the offenses covered by the bill directly abuse
children or create a market for abuse of children, significant
prison terms are appropriate. The author notes that defendants
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<8> Egregious child pornography would likely be found to be
harmful matter.
(More)
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can be charged with, convicted of, and sentenced to misdemeanors
for all but one of the crimes considered in this bill.
Child Pornography Possession
This bill raises penalties for aggravated forms of child
pornography possession. Under existing law, possession of child
pornography by a sex offender registrant is a straight felony,
with a prison "triad" of 2, 3 or 6 years. This bill raises the
triad to 3, 5 or 7 years. The bill sets this same penalty for
newly described child pornography offenses: 1) possession of
more than 600 images, at least 10 of depict minors who are
prepubescent or under the age of 12; and 2) possession of images
of sexual sadism or masochism. Unlike the penalty for child
pornography recidivists, these newly defined offenses are
alternate felony misdemeanors. As such, a prosecutor can charge
the defendant with a misdemeanor or a felony, and a judge can
deem the crime a misdemeanor.
As is discussed throughout this analysis, the reason that child
pornography is illegal is that children are sexually abused in
the making of the images. These degrading images can
essentially follow the person depicted through life, especially
on the Internet. California law does not impose different
penalties depending on the kind and amount of child pornography
a person possesses, regardless of whether the images are of
infants being raped or teenagers sending nude photos over a
phone. Arguably, this bill raises penalties for some of the
most egregious offenses. The author further notes that
California has particularly low child pornography penalties in
relation to other jurisdictions, especially for egregious
offenses.
The bill raises the prison term for using harmful matter
(obscenity from the perspective of a minor) to induce a minor to
engage in substantial sexual acts (vaginal or anal intercourse,
oral copulation, sexual penetration touching an intimate body
party) from a wobbler with a 16 month, 2-year or 3-year term, to
a wobbler with a 3, 5 or 7-year term. Less egregious forms of
this conduct is either a wobbler with a 2, 3 or 4-year prison
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term, or a wobbler with a 16 month, 2-year or 3-year sentence.
Using Child Pornography to Groom a Minor for Sexual Abuse
The luring offense described in this bill involves the use of
illegal sexual material to induce a child to engage in
substantial sexual conduct. The bill raises the prison term for
using harmful matter (obscenity from the perspective of a minor)
to induce a minor to engage in substantial sexual acts (vaginal
or anal intercourse, oral copulation, sexual penetration
touching an intimate body party) from a wobbler with a 16 month,
2-year or 3-year term, to a wobbler with a 3, 5 or 7-year term.
Less egregious forms of this conduct is either a wobbler with a
2, 3 or 4-year prison term, or a wobbler with a 16 month, 2-year
or 3-year sentence.
Members may wish to discuss whether using illegal sexual
material to groom minors for sexual abuse may be particularly
egregious because it involves calculation and deception. As
with the aggravated child pornography offenses in the bill, the
penalty for the most egregious form of using illegal sexual
material to lure and groom a child is a wobbler, with a prison
term of 3, 5 or 7 years. Less egregious forms of the crime
carry prison triads of from16 month to 4 years.
ARE INCREASED PRISON TERMS APPROPRIATE FOR DEFENDANTS WHO
POSSESSED PARTICULARY EGREGIOUS OF CHILD PORNOGRAPHY AND THOSE
WHO USED PARTICULARLY EGREGIOUS ILLEGAL SEXUAL MATERIAL TO LURE
A CHILD FOR SEXUAL ABUSE?
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