BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair S
2005-2006 Regular Session B
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SB 1182 (Battin) 2
As Amended April 6, 2006
Hearing date: April 18, 2006
Penal Code
AA:br
REGISTERED SEX OFFENDERS :
INTERNET DISCLOSURE: FELONY CHILD PORNOGRAPHY
HISTORY
Source: Author
Prior Legislation: SB 43 (Battin) - 2005; failed, Assembly
Public Safety
AB 488 (Parra) - Ch. 745, Stats. 2004
SB 1780 (Hollingsworth) - 2004; failed passage
Senate Public Safety
SB 1550 (Battin) - 2004; failed passage Senate
Public Safety
SB 422 (Florez) - 2003; died in Senate
Appropriations
SB 327 (Battin) - 2003; died in Senate Public Safety
(hearing postponed)
SB 721 (Battin) - 2001-2002 Session; died in Senate
Public Safety
AB 347 (Battin) - 1999-2000 Session; died in the
Assembly
AB 166 (Battin) - 1997-98 Session; died in the
Assembly
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AB 2471 (Battin) - 1995-96 Session; died in the
Senate
Support: Peace Officers Research Association of California;
California District Attorneys Association; Office of
the Attorney General; San Bernardino County Sheriff;
Children's Civil Rights Union; California Peace
Officers' Associaton; California Police Chiefs'
Association
Opposition:California Attorneys for Criminal Justice
KEY ISSUE
SHOULD FELONY CHILD PORNOGRAPHY OFFENDERS BE INCLUDED ON THE MEGAN'S
LAW INTERNET WEB SITE, AS SPECIFIED?
PURPOSE
The purpose of this bill is to include felony child pornography
offenses on the Megan's Law Internet Web site, as specified.
Pursuant to current law , the Department of Justice ("DOJ")
makes information about registered sex offenders available to
the public via an Internet Web site, as specified. (Penal
Code 290.46.) DOJ is required to include on this Web site a
registrant's name and known aliases, a photograph, a physical
description, including gender and race, date of birth,
criminal history, any other information that the Department of
Justice deems relevant unless expressly excluded under the
statute. (Id.)
Current law additionally requires DOJ to include on its Internet
Web site the home address of persons who are required to
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register as sex offenders for any of the following offenses:
Kidnapping a child under 14 to commit a lewd act;
Kidnapping to commit rape, sodomy, oral copulation, or
sexual penetration;
Rape by force or by threat to kidnap or inflict extreme
pain;
Rape or sexual penetration in concert;
Aggravated sexual assault of a child under 14 by a
person more than 10 years older;
Sodomy of a child under 14 by a person more than 10
years older, by force, by threat to kidnap or inflict
extreme pain, or in concert;
Oral copulation of a child under 14 by a person more
than 10 years older, by threat to kidnap or inflict extreme
pain, or in concert;
Sexual penetration of a child under 14 by a person more
than 10 years older, by force, by threat to kidnap or
inflict extreme pain, or in concert;
Felony lewd or lascivious conduct with a child under 14
or a dependent adult;
Continuous sexual abuse of a child under 14; and
Sexually Violent Predator, as specified. (Penal Code
290.46(b)(2).)
Current law requires the DOJ Web site of registered sex
offenders to include ZIP Code information, instead of home
address information, for persons who are required to register as
sex offenders for any of the following offenses:
Assault with intent to commit a sex crime;
Felony sexual battery;
Rape of an unconscious, disabled, or intoxicated victim;
Felony enticement of a child under 18 for prostitution;
Felony inducement of a sex crime by fraud or fear;
Procurement of a child under 16 for a lewd act;
Abduction of a child under 18 for purposes of
prostitution;
Sodomy of an unconscious, disabled, or intoxicated
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victim;
Sodomy of a child under 16 by a person over 21;
Oral copulation of an unconscious, disabled, or
intoxicated victim;
Oral copulation of a child under 16 by a person over 21;
Sexual penetration of an unconscious, disabled, or
intoxicated victim;
Sexual penetration of a child under 16 by a person over
21; and
Child annoyance. (Penal Code 290.46(d)(2).)
This bill would add specified felony child pornography offenses
to this list of offenses.<1>
This bill additionally would provide a mechanism for someone
who has been convicted of one of these offenses to be excluded
from the Web site if "the registrant submits to the Department
of Justice a certified copy of a probation report filed in
court that clearly states that all victims involved in the
commission of the offense were at least 16 years of age at the
time of the depiction."
COMMENTS
1. Stated Need for This Bill
The author states in part:
Current law requires a person convicted of child
pornography to register as a sex offender under
Section 290 of the Penal Code. However, these
offenses are not included on Megan's Law website
as specified in Section 290.46 of the Penal Code.
This bill would add felony child pornography
convictions to the Megan's Law website.
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<1> Specifically: Penal Code 311.1; 311.2(b), (c), and (d);
311.3; 311.4; 311.10; and 311.11 provided the offense is a
felony.
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Child pornography is estimated at being a $3
billion dollar a year industry.
Between surfing the web, digital cameras, cell
phones, and I-Pods - the age of technology
provides for a convenient, fast, easy and
essentially secretive avenue for pedophiles and
sexual predators to obtain, produce,
purchase/sell, advertise and view child
pornography.
Sexual predators have come to rely on computers to
fulfill their addictive behavior. Fortunately for
an investigator, computers offer a trail of
electronic evidence which can be invaluable for a
prosecutor's case. Unfortunately, child
pornography is difficult to uncover and in many
cases it is only detected after a horrendous crime
has been committed. One example is the Danielle
Van Dam case, where a little girl who lived in
Rancho Bernardo, California was abducted and
killed approximately three years ago. The subject
was a neighbor, David Westerfield, and when
investigators searched his computer they
successfully retrieved various media files that
showed his tendency for child pornography.
Westerfield was convicted of Van Dam's murder and
is currently on death row.
2. Prior Bill Passed This Committee Last Year
The author carried a nearly identical measure, SB 43, which
passed this Committee (4-1) and the Senate (35-0) last year. SB
43 subsequently failed passage in the Assembly Committee on
Public Safety.
Members may wish to consider whether this bill should be amended
to exactly conform to the measure passed by the Committee last
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year. (See Comment #3, below.)
3. Child Pornography
As amended, this bill would require that persons required to
register for specified child felony pornography convictions be
included on the Megan's Law Web site. Under this bill, their
ZIP code, but not their home address, would be disclosed unless
the registrant submits to the Department of Justice a certified
copy of a probation report filed in court that clearly states
all of the victims were at least 16 years of age at the time of
the commission of the offense.
The felony offenses this bill would add to Megan's Law are:
Specified conduct or contact, as specified, with any obscene
matter, knowing that the matter depicts a person under the age
of 18 years personally engaging in or personally simulating
sexual conduct, as specified (Penal Code 311.1);<2>
Specified conduct relating to materials with the intent to
distribute for commercial consideration of any obscene matter,
knowing that the matter depicts a person under the age of 18
years personally engaging in or personally simulating sexual
conduct, as specified (Penal Code 311.2(b));
Specified conduct relating to materials with the intent to
distribute or exhibit to, or to exchange with, a person 18
years of age or older knowing that the matter depicts a person
under the age of 18 years personally engaging in or personally
simulating sexual conduct, as specified (Penal Code 311.2
(c));
Specified conduct relating to materials with the intent to
offer, distribute or exhibit to, as specified, a person under
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<2> The statute expressly applies to anyone who "knowingly
sends or causes to be sent, or brings or causes to be brought,
into this state for sale or distribution, or in this state
possesses, prepares, publishes, produces, develops, duplicates,
or prints any representation of information, data, or image," as
specified.
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18 years of age, knowing that the matter depicts a person
under the age of 18 years personally engaging in or personally
simulating sexual conduct, as specified (Penal Code
311.2(d));
Knowingly develops, duplicates, prints, or exchanges any
representation of information, data, or image, as specified,
that contains or incorporates in any manner, any film or
filmstrip that depicts a person under the age of 18 years
engaged in an act of sexual conduct (Penal Code 311.3);
Knowingly hiring, employing, or using a minor to do or assist
in doing any of the acts described above concerning
distributing child obscenity under Penal Code Section 311.2,
as specified (Penal Code 311.4);
Advertising for sale or distribution any obscene matter
knowing that it depicts a person under the age of 18 years
personally engaging in or personally simulating sexual
conduct, as defined in Section 311.4 (Penal Code 311.10);
and
Sending, importing, producing or duplicating, with the intent
to distribute, any obscene matter depicting a person under the
age of 18 engaged in actual or simulated "sexual conduct", as
specified. (Penal Code 311.11.)
The crime described in Section 311.11 is not defined as "child
pornography" per se. Rather, Section 311.11 criminalizes
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depictions of actual or simulated "sexual conduct," as defined,<3>
by any person under the age of 18. Until 1994, child pornography
by definition depicted children under the age of 14. In 1994,
legislation passed to raise the age to under the age of 18. At
the same time, the definition of "sexual conduct" did not change.
That definition is broad enough to include not only graphic sex
acts, but also what could be characterized as less graphic sexual
posing. Thus, the range of depictions proscribed by existing
provisions 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, it can range from the
most graphic and hideous depiction of a young child to a tasteless
pose of a rebellious 17-year old mimicking something she has seen
in a music video.<4>
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<3> "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).)
<4> The complexity of Section 311.11 is further illustrated by
exceptions to its application. The section does not apply to
"drawings, figurines, statutes, 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.
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The exclusion language in this bill, which would require DOJ to
exclude from the Web site persons who submit a certified copy of
a probation report filed in court that clearly states that all
the victims involved in the commission of the offense were 16
years of age at the time of the commission of the offense, would
provide a narrow exception intended to ensure the bill targets
persons convicted of serious child pornography offenses. This
would appear to try to address the difficulty posed by the
breadth of the existing child pornography statutes.
When this Committee heard and passed the author's bill on this
issue last year, the exemption language applied when a probation
report filed in court clearly stated "the depicted person was at
least 16 years of age at the time of the depiction ." (emphasis
added) That language is different, and more specific, than the
language in the bill now before the Committee. The language now
in the bill would appear to impose a potentially higher but more
vague threshold - requiring that all the victims involved in the
commission of the offense be at least 16 to qualifying for this
exemption. It is unclear how the Department of Justice would
determine who 'all the victims involved in the commission of the
offense" could be - for example, the depicted minor or minors,
minors who viewed the material, minors who potentially
transported the material or anything relating to the production
of the material, etcetera. From the standpoint of proof, this
standard may be difficult for DOJ to apply. From the standpoint
of effect, this exemption may be meaningless if probation
reports do not specifically identify the breadth of victims
potentially included in this phrase. The author and/or the
Committee may wish to consider whether the language employed in
the author's SB 43 from last year might be more practically
applied.
SHOULD THIS BILL BE AMENDED TO REFLECT THE LANGUAGE IN THE BILL
PASSED BY THE COMMITTEE LAST YEAR?
OR, IN THE ALTERNATIVE, SHOULD A MORE PRECISE EXEMPTION BE
CRAFTED TO EXCLUDE FROM MEGAN'S LAW ONLY THE NARROW RANGE OF
NON-EXPLICIT "SEXUAL POSING" DEPICTIONS OF OLDER TEENAGERS
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EXPLAINED ABOVE?
As noted above, Megan's Law is intended solely for purposes of
public safety. The extent to which there is a link between
viewing or otherwise handling materials depicting actual or
simulated sexual conduct involving a minor under 18 and
committing sex crimes against children is unknown. A March 19,
2001 Newsweek article on child pornography noted "which fans of
child porn will go on to molest a child is unknown, as is the
actual number of pedophiles in the general population." Dr.
Martin Kafka of the McLean Hospital in Belmont, Massachusetts,
told Newsweek: "Some who look at child pornography have no
history of molesting. They seem to control their urges."
Others argue, however, that the link is more clear. In
testimony before Congress in 2002, Unit Chief for the FBI's
Crimes Against Children Unit stated in part:
Our experience in the investigation of these crimes
also signals a strong correlation between child
pornography offenders and molesters of children.
In Operation Candyman, for example, of the 90
people arrested thus far for their participation in
the child pornography e-group, 13 of them who chose
to make inculpatory statements admitted to
molesting a combined total of 48 children. . . .
My colleagues at the U.S. Postal Inspection Service
tell me that, according to statistics compiled from
their investigations, a frighteningly high
percentage of the child pornography offenders
investigated were also involved in the sexual
molestation of children. Their studies indicate
consistently that, of the total number of child
pornographers investigated over the past several
years, nearly 40 percent have been determined to be
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child molesters.
In addition, in November 2000, Dr. Andres E.
Hernandez, PsyD., Director of the Sex Offender
Treatment Program, Federal Bureau of Prisons, FCI
Butner, presented the results of his study of child
pornography offenders . . . .This study, among
other things, explored the correlation between
child pornography offenses and actual child
molestation. Dr. Hernandez' data indicates that
the majority of the persons in his study convicted
of child pornography offenses actually molested
significant numbers of children without detection
by the criminal justice system. . . .<5>
SHOULD SPECIFIED FELONY CHILD PORNOGRAPHY OFFENSES BE INCLUDED
ON THE MEGAN'S LAW WEB SITE TO PROMOTE PUBLIC SAFETY, AS
PROPOSED BY THIS BILL?
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<5> Testimony of Michael J. Heimbach, Crimes Against Children
Unit, Criminal Investigative Division, FBI, Before the
Subcommittee on Crime, Terrorism, and Homeland Security,
Committee on the Judiciary United States House of
Representatives May 1, 2002, "Internet Child Pornography."
( http://www.fbi.gov/congress/congress02/heimbach )