BILL ANALYSIS �
SB 145
Page 1
SENATE THIRD READING
SB 145 (Pavley)
As Amended September 3, 2013
Majority vote
SENATE VOTE :39-0
PUBLIC SAFETY 6-0 APPROPRIATIONS 17-0
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|Ayes:|Ammiano, Melendez, |Ayes:|Gatto, Harkey, Bigelow, |
| |Jones-Sawyer, Quirk, | |Bocanegra, Bradford, Ian |
| |Skinner, Waldron | |Calderon, Campos, |
| | | |Donnelly, Eggman, Gomez, |
| | | |Hall, Holden, Linder, |
| | | |Pan, Quirk, Wagner, Weber |
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SUMMARY : Creates new categories of offenses related to
aggravated forms of child pornography with increased state
prison terms for those 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 16 months,
two, or five 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
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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 five 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
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.
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.
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
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, two or three years and a fine not to exceed
$10,000.
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.
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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.
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.
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, two or three years.
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 one year, or by
imprisonment in state prison for 16 months, two years, or
three years, or by a fine of up to $2,500, or both.
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
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 two, four, or
six years in prison and a fine of up to $10,000.
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]."
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
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mechanical, chemical, or electrical reproduction, or any other
article, equipment? or material." Matter also includes
"[commercial] live or recorded telephone messages."
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.
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.
13)Defines "distribute" as to "transfer possession of, whether
with or without consideration."
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
political or scientific value for minors.
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 conviction is a felony,
with a prison term of 16 months, two years or three years.
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
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known the person contacted was a minor.
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, unknown annual General Fund (GF) costs for longer
prison terms, potentially in the range of $400,000. It is
difficult to estimate a cost range because: a) persons
committed to state prison under the sections amended by this
bill could be charged under alternative sections; and b)
corrections population-related data does not track the number of
images or specific content, such as sadomasochism.
Over the past two years, state corrections data indicates about
40 persons per year were committed to state prisons under the
sections amended by this bill. For purposes of an
order-of-magnitude extrapolation, assuming a current-law base of
one year served (with credits), if this bill added an additional
year for 15% of the most egregious commitments (six
inmate-years), which is consistent with the average upper
sentence deviation, annual GF costs would be in the range of
$360,000, at full per capita costs of $60,000.
In June 20, 2013, a U.S District Court three-judge panel ordered
California to reduce its prison population by about 9,000
inmates. The judges took the extreme step of waiving all state
and local laws and regulations that might interfere with the
order to allow the administration to begin to release inmates.
This bill would increase the prison population.
COMMENTS : 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 images posted daily.
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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
case reports indicate that 30% to 80% of individuals who viewed
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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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
SB 145
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319-3744
FN: 0002181