BILL ANALYSIS �
SB 145
Page 1
Date of Hearing: June 25, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 145 (Pavley) - As Amended: May 28, 2013
SUMMARY : Increases prison sentences for specified crimes
related to child pornography by creating new categories of
offenses. Specifically, this bill :
1)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 two, four,
or six years (increased from 16 months, two or three years)
and a fine of up to $2,500, imprisonment in the county jail
for up to one year or both:
a) 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.
b) The material portrays sexual sadism or sexual masochism
involving minors.
2)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.
3)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 two, four or six years
(increased from 16 months, two or three years) and a fine
under the following circumstances:
a) The defendant furnished, displayed or otherwise
presented to the minor harmful matter - obscene material
from the perspective of a minor - that also depicted minors
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engaged in sexual conduct, as defined by the child
pornography laws.
b) The defendant used any means of communication, including
electronic communication, in-person contact, or any
delivery or mail service. 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.
c) 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.
d) 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.
4)Defines an "intimate body part" as the sexual organ, anus,
groin or buttocks of any person, or the breast of a female.
EXISTING LAW :
1)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. [Penal Code
Sections 311.2(a) and 311.9.]
2)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
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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.
(Penal Code Section 311.1.)
3)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. [Penal Code Section 311.2(b).]
4)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. [Penal Code Section 311.4(a).]
5)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,
punishable by imprisonment in the state prison for three, six,
or eight years. [Penal Code Section 311.4(b).]
6)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. [Penal Code Section 311.2
(d).]
7)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. [Penal Code
Section 311.11(a).]
8)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
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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. [Penal Code
Section 311.11(b).]
9)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]." [Penal Code Section
311.11(d).]
10)Defines "matter" 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." [Penal
Code Section 311(b).]
11)Defines sexual conduct, actual or simulated, 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. (Penal Code Section 311.4.
12)Defines 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. [Penal
Code Section 311(a).]
13)Defines "distribute" as to "transfer possession of, whether
with or without consideration." [Penal Code Section 311(d).]
14)Defines "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 artistic, literary
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political or scientific value for minors. (Penal Code Section
313.)
15)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" 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. A subsequent convictions is a felony,
with a prison term of 16 months, two years or three years.
[Penal Code Section 288.2; People v. Jensen (2003) 114
Cal.App.4th 224, 239-241.]
16)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. (Penal Code Section
288.3.)
17)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 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 Section
288.4.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Child
pornography production necessarily involves the abuse of
children, such as capturing images of infants and toddlers
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
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images posted daily. DOJ also reports an increasing trend
towards younger victims, 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/masochistic sexual acts. Without strong deterrents,
child pornography possessors will continue to harm children
and fuel the demand for production and distribution of images
in this industry.
"California has the weakest child pornography possession law
in the nation. The current sentences range 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 possesses myriad or especially
egregious sexual images of children.
"According to a 2012 National District Attorneys Association
survey, no other state has a lower maximum sentence for the
possession of child pornography where aggravating factors,
such as number of images, age of the child and images of
sexually sadistic images involving children are present. For
example, a person prosecuted in California state court who
possesses 10,000 videos of infants and toddlers bound in
leather, currently faces a maximum of three years in state
prison. He will likely serve half of that, or 18 months.
"Recently, the term '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 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.
According at the Mayo Clinic of the U.S. (2008), studies and
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case reports indicate that 30% to 80% of individuals who
viewed child pornography and 76% of individuals who were
arrested for Internet child pornography had molested a child.
A 2008 longitudinal study of convicted child molesters in
America published by the official journal of the International
Society for Research in Aggression, found that pornography's
use correlated significantly with their rate of sexually
reoffending. In addition, it was found that the content of the
pornography (pornography containing deviant content) was a
high risk factor for all test groups. A study by the American
Federal Bureau of Prisons (2009) found that 85% of child
pornography offenders had admitted to sexually abusing minors.
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.'
"Previous Legislation: Several provisions in SB 145 address
concerns about previous legislation (SB 203- Harman 2009).
Among them, SB 203 allowed additional counts of child
pornography for each victim and/or each piece of media, and
did not distinguish upon the nature of material. These
provisions were criticized because if there were thousands of
victims/images in a case (which is not unusual), there could
conceivably be thousands of additional counts and potentially
hundreds of years of additional incarceration.
"Also, SB 145 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)Sentencing Considerations : This bill increases prison terms.
a) Child Pornography Possession : This bill raises
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penalties for aggravated forms of child pornography
possession. The bill sets a penalty of an alternate
felony-misdemeanor, punishable by a prison term of two,
four, or six years and a fine of up to $2,500, imprisonment
in the county jail for up to one year or both 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.
b) Use of Child Pornography : 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 2, 4 or 6-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.
3)Prison Overcrowding : The provisions of this bill increase
underlying prison sentences for the above referenced offenses
related to child pornography.
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When the offense is currently punishable by a prison term, any
proposed increase in that prison term causes concern for
additional prison overcrowding. As California's prison crisis
worsens, close attention should be paid to legislation
increasing prison overcrowding. The California Policy
Research Center (CPRC) recently issued a report on the status
of California's prisons. The report stated, "California has
the largest prison population of any state in the nation, with
more than 171,000 inmates in 33 adult prisons, and the state's
annual correctional spending, including jails and probation,
amounts to $8.92 billion. Despite the high cost of
corrections, fewer California prisoners participate in
relevant treatment programs than comparable states, and its
inmate-to-officer ratio is considerably higher. While the
nation's prisons average one correctional officer to every 4.5
inmates, the average California officer is responsible for 6.5
inmates. Although officer salaries are higher than average,
their ranks are spread dangerously thin and there is a severe
vacancy rate." [Petersilia, Understanding California
Corrections, California Policy Research Center (May 2006).]
California's prison population will likely exceed 180,000 by
2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims." [Little
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Hoover Commission Report, Solving California's Corrections
Crisis: Time is Running Out (2007), pg. 1, 2.]
On February 9, 2009, a United States District Court three-judge
panel issued a tentative ruling mandating the State of
California to resolve chronic prison overcrowding. In the
tentative ruling, the judges state "[t]he evidence is
compelling that there is no relief other than a prisoner
release order that will remedy the unconstitutional prison
conditions." With prisons housing twice the population they
were built to accommodate, the prospect of early release of
inmates appears imminent unless the Legislature relieves the
current prison population.
The United State Supreme Court upheld the decision of the
three-judge panel, declaring that "without a reduction in
overcrowding, there will be no efficacious remedy for the
unconstitutional care of the sick and mentally ill" inmates in
California's prisons. [Brown v. Plata (2011) 131 S.Ct. 1910,
1939; 179 L.Ed.2d 969, 999.]
According to a recent report by the Legislative Analyst's
Office, "Based on CDCR's current population projections, it
appears that it will eventually reach the court-imposed
population limit, though not by the June 2013 deadline." [See
Refocusing CDCR After the 2011 Realignment, Feb. 23, 2012,
pp.3
.
] "In particular, the projections show the state missing the
final population limit of no more than 110,000 inmates housed
in state prisons by June 2013. Specifically, the projections
show the state exceeding this limit by about 6,000 inmates.
However, the projections indicate that the state will meet the
court-imposed limit by the end of 2014." (Id. at p. 9.)
"While the state has undergone various changes to reduce
overcrowding prior to the passage of the realignment
legislation-including transferring inmates to out-of-state
contract facilities, construction of new facilities, and
various statutory changes to reduce the prison population-the
realignment of adult offenders is the most significant change
undertaken to reduce overcrowding." (Id. at p. 8.) Because
the provisions of this bill require a defendant convicted for
peeping to serve his or her sentence in state prison, it
appears to aggravate the on-going problem of prison
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overcrowding.
The Three Judge Panel, in issuing its most recent denial of
the State's request to modify and/or terminate the existing
population cap re-stated, "crowding creates numerous barriers
to the provisions of medical and mental health care that
result in the constitutional violations." (Coleman/Plata v.
Brown, April 11, 2013, Op. & Order Denying Defendants Motion
to Vacate or Modify Population Reduction Order, (No.
C01-1351:2590:4).]'
4)Three Judge Panel's Order to Immediately Begin Releasing
Inmates : On Thursday June 20, 2013, the date this analysis
was written, the panel of three federal judges referenced
above ordered California's prisons to immediately begin
releasing inmates from state prisons. The judges gave
Governor Brown the option of deciding how to carry out the
order: by revising the state's already proposed good-time
credit program, substituting other prisoners for early
release, or adopting any other step that would result in an
equivalent reduction in the number of people held in state
prisons. The judges took the hereto unprecedented step of
waiving all state and local laws and regulations which would
interfere with the order so that the administration could
"commence forthwith" steps to release inmates early. This
bill, by increasing prison sentences, would aggravate a
problem which has reached a critical impasse.
5)Statutory Definition of Child Pornography : Penal Code Section
311.11 criminalizes depictions of minors engaged in actual or
simulated "sexual conduct," 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"
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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 a 17-year old. Media reports have
documented prosecutions of minors for so-called "sexting" - the
sending sexual photos of oneself to friends and others.
"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 Section 311.4(d).]
6)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.
7)Higher Penalties for Possession of Child Pornography based on
the Number of Images and the Egregious Nature of the Images :
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"
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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.
8)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.
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
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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.
9)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
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.
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, 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
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can still be charged as a felony.
10)Argument in Support : According to the Ventura County
District Attorney , "Possession of child pornography
re-victimizes children what have suffered unspeakable acts.
These victims suffer a lifetime of fear and shame so that
child predators can achieve sexual gratification from their
exploitation. Not only does the child suffer the degradation
of the original sexual assault but they suffer a lifetime of
fear and shame due to the repeated exposure as the images are
broadcast over the internet.
"Child pornography knows no demographic, geographic, or racial
boundaries. The child victims, especially those that are too
young or too scared to speak up or who are too economically
dependent on the offender to remove themselves from the
situation are truly society's most vulnerable. SB 145 is
narrowly tailored to only increase penalties for those who
possess large amounts of images of children that include
images of children under the age of 12 engaged in sexual
conduct or of children in sadistic or sadomasochistic sexual
situations. Amending Penal Code sections 311.2 and 288.2 will
provide judges added tools to deal with the worst offenders,
while allowing them the same discretion as exists in the
current law."
11)Argument in Opposition: According to the California
Attorneys for Criminal Justice , "This bill unnecessarily
increases penalties. Current law already imposes significant
sentences on those convicted offenses listed in SB 145. There
is no indication that these penalties are insufficient.
"Furthermore, the SB 145 penalties increase result in the
awkward situation of subjecting a person who views improper
images in the privacy of his/her own home to a longer sentence
than someone who personally commits sex crimes such as
molestation.
"The crimes listed in SB 145 involve no direct contact with a
victim. The viewer of this material did not participate in
the banned sex acts. Potentially, the prohibited material
could be years or decades old and yet SB 145 would impose a
punishment more benefitting a perpetrator of rape than of an
act committed in a home with no direct contact with a minor.
SB 145
Page 16
"In calling for grossly disproportionate sentences for
first-time offenders who use computers and possess images, SB
145 leaves no room to punish offenders who are far more
culpable or provide for offenses that are more directly
harmful to the victims themselves. SB 145 is not the product
of years of careful study by any Sentencing Commission or
based on empirical sentencing data. This bill will likely be
applies in disproportionate ways that will waste finite
resources before, during, and after the involvement of the
judicial system."
12)Prior Legislation : SB 1128 (Alquist) Chapter 337, Statutes
of 2006, enacted the Sex Offender Punishment, Control, and
Containment Act of 2006 and makes specified legislative
findings and declarations concerning sex offenders.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda County District Attorney
California District Attorneys Association
Crime Victims United of California
San Bernardino County Sheriff
Ventura County District Attorney
One private individual.
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744