BILL ANALYSIS
SB 1182
Page A
Date of Hearing: June 13, 2006
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
SB 1182 (Battin) - As Amended: May 2, 2006
SUMMARY : Adds persons convicted of specified felony child
pornography offenses to the list of offenders whose zip code and
community of residence are included on the publicly available
Internet Web site (known as the "Megan's Law" list) maintained
by the Department of Justice (DOJ) regarding persons required to
register as sex offenders. Specifically, this bill :
1)Adds persons convicted of various felony child pornography
offenses to the "Megan's Law" Internet Web site, as follows:
a) Persons convicted of a violation of Penal Code Section
311.1 as a felony: Sending or bringing into California for
sale or distribution, or possession, publication,
development or printing any visual media image that
contains any images, data or other obscene matter, with the
intent to distribute or exchange with others, knowing that
the matter depicts a person under the age of 18 years
personally engaging in or simulating sexual conduct, as
defined;
b) Persons convicted of a violation of Penal Code Section
311.2(b): Possession or publication of obscene matter
depicting a person under the age of 18 years, with the
intent to exhibit to, or to exchange with others, for
commercial consideration, obscene matter personally
engaging in or simulating sexual conduct, as defined;
c) Persons convicted of a violation of Penal Code Section
311.2(c): Knowingly sending, or causing to be sent; or
bringing, or causing to be brought, into this State, for
sale or distribution, or in this state possessing,
publishing, duplicating or printing any film, image, or
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other visual media, including computer-generated images,
with the intent to exhibit to, or to exchange with, a
person over the age of 18 years, whether or not for
commercial consideration, any obscene matter knowing that
the matter depicts a person under the age of 18 years
personally engaging in or simulating sexual conduct, as
defined;
d) Persons convicted of a violation of Penal Code Section
311.2(d): Knowingly sending, or causing to be sent; or
bringing, or causing to be brought, into this State, for
sale or distribution, in this state possession,
publication, production, duplication or printing of any
film, image, or other visual media, including
computer-generated images, with the intent to exhibit to,
or to exchange with, a person under the age of 18 years, or
who offers to distribute, distributes, or exhibits to a
person under the age of 18 years, whether or not for
commercial consideration, any obscene matter knowing that
the matter depicts a person under the age of 18 years
personally engaging in or simulating sexual conduct, as
defined;
e) Persons convicted of a violation of Penal Code Section
311.3: felony sexual exploitation of a child. "Sexual
exploitation of a child" is defined as knowingly
developing, duplicating, and printing or exchanging any
representation of data, or images, as defined, that contain
or incorporate in any manner any film that depicts a person
under the age of 18 years engaged in an act of sexual
conduct.
f) Persons convicted of felony violation of Penal Code
Section 311.4: The employment or use of a minor under the
age of 18 years in the sale, distribution, and exchange of
video media that depicts a person under the age of 18 years
engaging in, or simulating sexual conduct. Any parent or
guardian of a minor under the age of 18 years who was
convicted of knowingly permitting the minor to engage in
either posing or modeling alone or with others, or
preparing any representation of data or images, as
specified, that contain or incorporate in any manner, any
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film or a live performance involving sexual conduct by a
minor under the age of 18 years, alone or with other
persons or animals also violates this section.
g) Persons convicted of felony violation of Penal Code
Section 311.10: Persons convicted of advertising for sale
or distribution of 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.
h) Persons convicted of felony violation of Penal Code
Section 311.11: Persons convicted of a second or
subsequent offense of possessing or controlling any obscene
matter, the production of which involved the use of a
person under the age of 18 years, knowing that the matter
depicts a person under the age of 18 years personally
engaging in sexual conduct or personally simulating sexual
conduct, if the person had previously been convicted of
offenses involving sale or distribution of matter depicting
a person under the age of 18 years engaging in, or
simulating, sexual conduct, or of employment or use of a
minor to perform prohibited sexual acts.
2)Permits persons convicted of specified child pornography
offenses to apply to the Department of Justice (DOJ) for
exclusion from the Internet Web site if the convicted person
submits to the DOJ a certified copy of a probation report
filed in court that clearly states that the depicted person
was at least 16 years of age at the time of the depiction.
EXISTING LAW :
1)Provides that it is an alternate misdemeanor/felony to
possess, or to bring into California for sale or distribution,
any obscene matter, knowing that the matter depicts a person
under the age of 18 years personally engaging in, or
simulating, sexual conduct, as defined. [Penal Code Section
311.1(a).]
2)States that it is a misdemeanor, for a first offense, to send
or bring into California for sale or distribution, or to
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possess, publish or print, with intent to distribute or
exhibit to others. States that if a person has previously
been convicted of this offense, the court may impose a fine
not exceeding $50,000, in addition to the punishment otherwise
specified which varies according to the number of units of
obscene material and may not exceed 360 days in the county
jail and $10,000. [Penal Code Section 311.2(a)] and [Penal
Code Section 311.9(a).]
3)Provides that possession and distribution of obscene matter,
for commercial consideration, knowing that the obscene matter
depicts a person under the age of 18 years personally engaging
in sexual conduct or simulating sexual conduct, as defined, is
a felony punishable by imprisonment in the state prison for
two, three, or six years, or by a fine not exceeding $100,000,
in the absence of a finding that the defendant would be
incapable of paying such fine, or by both such imprisonment
and fine. [Penal Code Section 311.2(b).]
4)Provides that it is a misdemeanor to send or bring into
California for sale or distribution, or to possess, publish or
print, with intent to distribute or exhibit to others, any
film, photograph or other media, that contains or incorporates
in any manner, with intent to distribute to, or exchange with
a person 18 years of age or older any matter, knowing that the
matter depicts a person under the age of 18 years personally
engaging in, or personally simulating, sexual conduct, as
defined. States that if a person has previously been
convicted of this section, he or she is guilty of a felony.
[Penal Code Section 311.2(c).]
5)Provides that it is a felony to send or bring into California
for sale or distribution, or to possess, publish or print,
with intent to distribute or exhibit to others, any film,
photograph or other media, that contains or incorporates in
any manner, with intent to distribute to, or exchange with a
person under 18 years of age any matter, knowing that the
matter depicts a person under the age of 18 years personally
engaging in, or personally simulating, sexual conduct, as
defined. [Penal Code Section 311.2(d).]
6)States that a person is guilty of sexual exploitation of a
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child if he or she knowingly develops, duplicates, prints, or
exchanges any representation of information, data, or image
that contains or incorporates in any way any film or filmstrip
that depicts a person under the age of 18 years engaged in an
act of sexual conduct. [Penal Code Section 311.3(a).]
7)Defines "sexual conduct" for purposes of sexual exploitation
of a child as any of the following [Penal Code Section
311.3(b)]:
a) Sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex or between humans and
animals;
b) Penetration of the vagina or rectum by any object;
c) Masturbation for the purpose of sexual stimulation of
the viewer;
d) Sadomasochistic abuse for the purpose of sexual
stimulation of the viewer;
e) Exhibition of the genitals or the pubic or rectal area
of any person for the purpose of sexual stimulation of the
viewer; and,
f) Defecation or urination for the purpose of sexual
stimulation of the viewer.
8)States that "sexual exploitation of a child" is punishable by
a fine of not more than $2,000, by imprisonment in a county
jail for not more than one year, or by both that fine and
imprisonment. If the person had previously been convicted of
a violation of any provision of the chapter on obscene
material, he or she may be punished by imprisonment in the
state prison. [Penal Code Section 311.3(d).]
9)Provides that it is a misdemeanor, on a first offense, to
knowingly hire or use a minor to perform specified acts, as
defined, in the sale or distribution or exchange of media
depicting sexual conduct by persons under the age of 18 years.
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[Penal Code Section 311.4(a).]
10)States that every person who, with knowledge that a person is
a minor under the age of 18 years or who, while in possession
of any facts on the basis of which he or she should reasonably
know that the person is a minor under the age of 18 years,
knowingly promotes, uses, persuades or coerces a minor under
the age of 18 years, or any parent or guardian of a minor
under the age of 18 years, who knowingly permits the minor, to
engage in or assist others to engage in either posing or
modeling alone or with others for purposes of preparing any
video, filmstrip, slide, or other media that contains or
incorporates in any way any film or live performance involving
sexual conduct by a minor under the age of 18 years, alone or
with other persons or animals, 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).]
11)States that every person who, with knowledge that a person is
a minor under the age of 18 years or who, while in possession
of any facts on the basis of which he or she should reasonably
know that the person is a minor under the age of 18 years,
knowingly promotes, uses, persuades or coerces a minor under
the age of 18 years, or any parent or guardian of a minor
under the age of 18 years, who knowingly permits the minor, to
engage in or assist others to engage in either posing or
modeling alone or with others for purposes of preparing any
video, filmstrip, slide, or other media that contains or
incorporates in any way any film or live performance involving
sexual conduct by a minor under the age of 18 years, alone or
with other persons or animals, is guilty of a felony. States
that it is not necessary to prove commercial purposes to
establish a violation of this subdivision. [Penal Code
Section 311.4(c).]
12)Defines "sexual conduct" as used in the subdivision
prohibiting employment of a minor to perform prohibited acts
as any of the following, whether actual or simulated, and
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. States that an act is simulated when it gives
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the appearance of being sexual conduct [Penal Code Section
311.4(d)(1)]:
a) Sexual intercourse;
b) Oral copulation;
c) Anal intercourse;
d) Anal oral copulation;
e) Masturbation;
f) Bestiality;
g) Sexual sadism;
h) Sexual masochism;
i) Penetration of the vagina or rectum by any object in a
lewd or lascivious manner;
j) Exhibition of the genitals or pubic or rectal area for
the purpose of sexual stimulation of the viewer;
aa) Any lewd or lascivious act as defined in Penal Code
Section 288; and,
bb) Excretory functions performed in a lewd or lascivious
manner.
13)Defines "matter" as used in the subdivision prohibiting
employment of a minor to perform prohibited acts as any film,
filmstrip, photograph, negative, slide, photocopy, videotape,
video laser disc, computer hardware, computer software,
computer floppy disc, or any other computer-related equipment
or computer-generated image that contains or incorporates in
any manner, any film, photograph, negative, slide, photocopy,
videotape, or video laser disc. [Penal Code Section
311.4(d)(2).]
14)Provides that any person who advertises for sale or
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distribution any obscene matter knowing that it depicts a
person under the age of 18 years engaging in, or personally
simulating sexual conduct, as defined, is guilty of a felony
punishable by imprisonment in the state prison for two, three
or four years or in a county jail not exceeding one year, by a
fine not exceeding $50,000, or by both such fine and
imprisonment. [Penal Code Section 311.10(a).]
15)States that possessing or controlling any obscene matter
depicting a person under the age of 18 years engaged in actual
or simulated sexual conduct, as defined, is punishable by
imprisonment in the county jail for up to one year, or by a
fine not exceeding $2,000, or by both that imprisonment and
fine. [Penal Code Section 311.11(a).] States that if a
person has previously been convicted of a violation of this
section, or other specified sections, he or she is guilty of a
felony and shall be punished by imprisonment in the state
prison by two, four, or six years. [Penal Code Section
311.11(b).]
16)States that it is not necessary to prove that the matter is
obscene in order to establish a violation of the prohibition
against possessing or controlling any matter depicting a
person under the age of 18 years engaged in actual or
simulated sexual conduct. [Penal Code Section 311.11(c).]
17)Provides that the prohibition against possessing or
controlling any matter depicting a person under the age of 18
years 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, nor does it apply
to live or recorded telephone messages when transmitted,
disseminated or distributed as part of a commercial
transaction. [Penal Code Section 311.11(d).]
18)Requires persons convicted of specified sex offenses to
register with the appropriate law enforcement agency within
five working days of coming into, or changing, his or her
residence within any city, county, city and county, or campus
in which he or she temporarily resides. [Penal Code Section
290(a)(1)(A).]
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19)Pursuant to the Megan's Law system of public notification of
the location of sex offenders, establishes a three-tiered
system of identifying specified sex offenders to the public,
via the Internet, and provides specific addresses for those
convicted of offenses deemed most serious, and provides the
zip code and community of residence for other offenses deemed
less serious. (Penal Code Section 290.46.)
20)States that specific home addresses shall be provided
regarding persons convicted of the following offenses [Penal
Code Section 290.46(b)(2)]:
a) Kidnapping for the purpose of committing lewd or
lascivious acts of a child under the age of 14 years by
enticing, persuading or seducing by false promises, etc.,
that child to go out of the United States, state or county,
or into another part of the same county [Penal Code Section
207(b)];
b) Kidnapping to commit rape, spousal rape, oral
copulation, sodomy or sexual penetration [Penal Code
Section 209(b)];
c) Rape accomplished against a person's will by means of
force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person of another [Penal Code
Section 261(a)(2)];
d) Rape accomplished against the victim's will by
threatening to retaliate in the future against the victim
or any other person and there is a reasonable possibility
that the perpetrator will execute the threat [Penal Code
Section 261(a)(6)];
e) Rape or penetration of genital or anal openings by a
foreign object, by force or violence and against the will
of the other person, either personally or by aiding and
abetting another person (Penal Code Section 264.1);
f) Aggravated sexual assault of a child under 14 years of
age and 10 or more years younger than the offender (Penal
Code Section 269);
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g) Sodomy with a person under the age of 14 and more than
10 years younger than the offender [Penal Code Section
286(c)];
h) Sodomy accomplished against the victim's will by means
of force or fear of immediate and unlawful bodily injury on
the victim or another person, or where the act is
accomplished by threatening to retaliate in the future
against the victim or any other person and there is a
reasonable possibility that the perpetrator will execute
the threat [Penal Code Section 286(d)];
i) Lewd or lascivious acts upon or with the body of a child
under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child provided that the act
is a felony [Penal Code Section 288(a)];
j) Felony lewd or lascivious acts upon or with the body of
a child under the age of 14 years by use of force,
violence, duress, menace or fear of immediate and unlawful
bodily injury on the victim or another person [Penal Code
Section 288(b)];
aa) Lewd or lascivious acts upon or with the body of a child
under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child provided that the act
is a felony, the victim is a child of 14 or 15 years, and
the perpetrator is at least 10 years older than the child
[Penal Code Section 288(c)];
bb) Oral copulation with a person under 14 years of age and
more than 10 years younger than the perpetrator [Penal Code
Section 288a(c)];
cc) Oral copulation accomplished against the victim's will
by means of force or fear of immediate and unlawful bodily
injury on the victim or another person; or where the act is
accomplished against the victim's will, by threatening to
retaliate in the future against the victim or any other
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person, and there is a reasonable possibility that the
perpetrator will execute the threat; or where the victim is
incapable, because of a mental disorder or developmental or
physical disability of giving legal consent, and this is
known or reasonably should have been known to the accused
[Penal Code Section 288a(d)];
dd) Continuous sexual abuse of a child (Penal Code Section
288.5);
ee) Commission of an act of sexual penetration accomplished
against the victim's will by means of force or duress, fear
of immediate and unlawful bodily injury on the victim or
another person, or by threatening to retaliate in the
future against the victim or any other person, and there is
a reasonable possibility that the perpetrator will execute
the threat [Penal Code Section 289(a)]; and,
ff) Participation in an act of sexual penetration with
another person who is under 14 years of age and who is more
than 10 years younger than the perpetrator. [Penal Code
Section 289(j).]
21)Provides that the above information shall also be provided on
the Internet Web site as to any person who has ever been
adjudicated a sexually violent predator, as defined. [Penal
Code Section 290.46(b)(3).]
22)States that the DOJ shall make available to the public via
the Internet Web site the offender's name and known aliases,
a photograph, a physical description, including gender and
race, date of birth, criminal history, the community of
residence and zip code in which the person resides, but not
the specific address, for persons convicted of the following
offenses:
a) Assault with intent to commit rape, sodomy, oral
copulation, rape in concert with another, lascivious acts
upon a child, or penetration of genitals or anus with a
foreign object (Penal Code Section 220);
b) Felony sexual battery (Penal Code Section 243.4);
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c) Rape where a person is incapable because of a mental
disorder or developmental or physical disability, of giving
legal consent, with no prior or subsequent conviction of a
sex offense requiring registration [Penal Code Section
261(a)(1)];
d) Rape where a person is prevented from resisting by any
intoxicating or anesthetic substance, or any controlled
substance, and this condition was known or should have been
known by the accused, with no prior or subsequent
conviction of a sex offense requiring registration [Penal
Code Section 261(a)(3)];
e) Rape where the person is at the time unconscious of the
nature of the act, and this is known to the accused, with
no prior or subsequent conviction of a sex offense
requiring registration [Penal Code Section 261(a)(4)];
f) Felony inveiglement of an unmarried female under 18 for
purposes of prostitution (Penal Code Section 266);
g) Felony unlawful intercourse, sexual penetration, oral
copulation or sodomy where the victim's consent is procured
by fraudulent representation made with the intent to create
fear (Penal Code Section 266c);
h) Procurement of a child under the age of 16 for lewd or
lascivious acts, as defined (Penal Code Section 266j);
i) Abduction of a person under the age of 18 years for the
purpose of prostitution (Penal Code Section 267);
j) Participation in the act of sodomy by a person over the
age of 21 years with another person who is under 16 years
of age, with no prior or subsequent conviction of a sex
offense requiring registration [Penal Code Section
286(b)(2)];
aa) Committing an act of sodomy when the victim is at the
time incapable, because of a mental disorder or
developmental or physical disability, of giving legal
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consent, and such fact is known or reasonably should have
been known to the accused, with no prior or subsequent
conviction of a sex offense requiring registration [Penal
Code Section 286(c)(3)(g)];
bb) Committing an act of sodomy where the victim is
prevented from resisting by an intoxicating or anesthetic
substance, or any controlled substance, and this condition
was known or reasonably should have been known to the
accused, with no prior or subsequent conviction of a sex
offense requiring registration [Penal Code Section
286(c)(3)(i)];
cc) Lewd or lascivious acts upon or with the body of a child
under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child, provided that the act
is a misdemeanor, the victim is a child of 14 or 15 years,
and the perpetrator is at least 10 years older than the
child [Penal Code Section 288(c)];
dd) Participation in an act of oral copulation by a person
over the age of 21 with another person who is under the age
of 16 years [Penal Code Section 288a(b)(2)];
ee) Committing an act of oral copulation when the victim is
unconscious of the nature of the act and this is known to
the person committing the act, with no prior or subsequent
conviction of a sex offense requiring registration [Penal
Code Section 288a(f)];
ff) Committing an act of oral copulation where the victim is
incapable, because of a mental disorder or developmental or
physical disability, of giving consent, and this is known
or reasonably should have been known to the accused, with
no prior or subsequent conviction of a sex offense
requiring registration [Penal Code Section 288a(g)];
gg) Committing an act of oral copulation where the victim is
prevented from resisting by any intoxicating or anesthetic
substance, or any controlled substance, and this condition
was known or reasonably should have been known to the
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accused, with no prior or subsequent conviction of a sex
offense requiring registration [Penal Code Section
288a(i)];
hh) Committing an act of sexual penetration where the victim
is incapable, because of a mental disorder or developmental
or physical disability of giving legal consent, and this is
known or reasonably should have been known to the accused,
with no prior or subsequent conviction of a sex offense
requiring registration [Penal Code Section 289(b)];
ii) Committing an act of sexual penetration when the victim
is unconscious of the nature of the act and this is known
to the person committing the act, with no prior or
subsequent conviction of a sex offense requiring
registration [Penal Code Section 289(d)];
jj) Committing an act of sexual penetration where the victim
is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance, and this
condition was known or reasonably should have been known to
the accused, with no prior or subsequent conviction of a
sex offense requiring registration [Penal Code Section
289(e)];
aaa) Participation in an act of sexual penetration by a
person over the age of 21 years with another person who is
under the age of 16 years, with no prior or subsequent
conviction of a sex offense requiring registration [Penal
Code Section 289(i)]; and,
bbb) Annoying or molesting a child under the age of 18 years
(Penal Code Section 647.6).
a) States that use of the information disclosed on the
Internet Web site about sex offenders shall not be used for
purposes as specified. [Penal Code Section 290.46(l)(2).]
24)Provides that the public notification provisions are
applicable to every person described in this law, without
regard to when his or her crimes were committed or his or her
duty to register as a sex offender arose, and to every offense
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described in this section, regardless of when it was
committed. [Penal Code Section 290.46(m).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill would
add child pornography to the Megan's Law Web site. Child
pornography is estimated at being a $3 billion dollar a year
industry.
"Between surfing the Web, digital cameras, cell phones, and
I-Pods, technology is a convenient, fast, easy and essentially
secretive avenue for pedophiles and sexual predators to
obtain, produce, purchase/sell, advertise and view child
pornography.
"Child pornography is not a victimless crime. Adding felony
child pornography offenses to the Megan's Law Web site will
only further assist parents in being proactive in protecting
their families from known sexual predators."
2)Background : According to background information provided by
the author, "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 [Danielle]
Van Dam's murder and is currently on death row.
"Crimes dealing with child pornography are extensive and unlike
other syndicate crimes. The images of these exploited
children never end. In testimony before Congress in 2002, the
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Unit Chief for the Federal Bureau of Investigation's Crimes
Against Children Unit found that child molesters used child
pornography to groom their victims in the following ways:
a) "Demonstrate sex acts to children . Offenders commonly
use pornography to teach or give instructions to na?ve
children about how to masturbate, perform oral sex and/or
engage in sexual intercourse.
b) " Lower the sexual inhibitions of children . Some
children naturally fear sexual activities. Some offenders
show pictures of other children engaging in sexual
activities to overcome these fears, indicating to their
intended victims that it is all right to have sex with an
adult because lots of other boys and girls do the same
thing.
c) "Desensitize children to sex . Offenders commonly show
child pornography to their intended victims to expose them
to sexual acts before they are naturally curious about such
activities.
d) "Sexually arouse children . Offenders commonly use
pornographic images of other children to arouse victims,
particularly those in adolescence."
The author's background information cited a number of
statistics, with corresponding citations, regarding child
pornography. For example, the National Center for Missing and
Exploited Children reported in a June 2005 report that 40% of
arrested child pornography possessors had both sexually
victimized children and were in possession of child
pornography; such offenders are known as "dual offenders." It
was noted that both crimes were discovered in the course of
the same investigation. The report noted that another 15%
were dual offenders who tried to victimize children by
soliciting undercover investigators who posed as minors
online. "Overall, 36% of dual offenders showed or gave child
pornography to identified victims or undercover investigators
posing as minors online."
The background information further cited the National Center
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for Missing and Exploited Children as stating that child
pornography reports increased 39% in 2004. "Ernie Allen,
President and Chief Executive Officer of the National Center
for Missing and Exploited Children states that the statistics
show a significant and steady increase in child pornography
reports for the seventh year." Additionally, according to the
background information, approximately 20% of all Internet
pornography involves children [The National Center for Missing
and Exploited Children, "Internet Sex Crimes against Minors:
The Response of Law Enforcement" (2003.)]
3)Is the Definition of "Sexual Conduct" under Penal Code Section
311.11 Overly Broad ? Sexual conduct under Penal Code Section
311.11 is defined broadly.<1> Thus, for example, Penal Code
Section 311.11 would be violated by possession of an image
depicting a 17-year-old engaging in simulated masturbation
while clothed. Many parents of teenaged children might
reasonably argue that this could include many popular music
videos. The complexity of this definition is further
illustrated by exceptions to its application contained in
Penal Code Section 311.11(d), which states that this section
does not apply to "drawings, figurines, statutes, or any film
rated by the Motion Picture Industry of America (MPAA)."
Arguably, possession of depictions of conduct that would be
routine or unremarkable in rated films or in material that
might be accepted as "art" constitutes a crime under Penal
Code Section 311.11 if the depictions do not appear in such
---------------------------
<1>Penal Code Section 311.11 pertains to depictions of "engaging
in or simulating sexual conduct," which is defined as "any of
the following, whether actual or simulated: sexual intercourse,
oral copulation, anal intercourse, anal oral copulation,
masturbation, bestiality, sexual sadism, sexual masochism,
penetration of the vagina or rectum by any object in a lewd or
lascivious manner, exhibition of the genitals or pubic or rectal
area for the purpose of sexual stimulation of the viewer, any
lewd or lascivious sexual act as 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."
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contexts. For example, an unrated documentary film or other
accurate depiction of relatively common behavior of high
school students could be considered criminal under Penal Code
Section 311.11. Should parents who make video recordings of
their minor children dancing, albeit in a suggestive manner
(which could be seen as simulation of sexual conduct), at a
chaperoned party and then share those videos with friends and
family be subject to being listed on the Megan's Law Internet
Web site?
4)Exceptions to Application of Child Pornography Laws : The
complexity of this issue is further illustrated by exceptions
to its application; see, e.g., Penal Code Section 311.11. The
section does not apply to "drawings, figurines, statutes, or
any film rated by 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 Penal Code 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
many high school students likely would be criminal under the
interpretation of Penal Code Section 311.11 that would likely
be accepted by many judges and juries adjudicating these
matters.
5)The Purpose of Megan's Law : 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 or obscene
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 between child pornography
and sexual crimes against children is clearer. In testimony
before Congress in 2002, the Unit Chief of the FBI's Crimes
Against Children Unit stated in part: "Our experience in the
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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 United States 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% have been
determined to be child molesters."
6)Does This Bill Sweep Too Broadly ? If the purpose of public
notification of certain registered sex offenders' locations is
to protect the public, should this bill be narrowed to include
on the Megan's Law Web site only those persons convicted of
child pornography offenses committed for commercial purposes
who are clearly adults, in relation to the person under the
age of 18 years? For example, should an age differential be
included in any offense that subjects the offender to
inclusion on the Megan's Law Internet Web site? As written,
this bill would make lifetime sex offender registrants of
17-year-old students who have "employed" their fellow students
of the same age to pose or model for a non-professional music
video featuring dancing that some might see as a simulation of
masturbation over clothing if, for example, the video was
intended to be sold to fellow students to raise money for a
school project. Such does not appear to be the intent of the
bill as stated in the background information provided by the
author; a literal reading of Penal Code Section 311.4 clearly
makes such conduct a crime:
"Every person who, with knowledge that a person is a minor under
the age of 18 years?knowingly promotes, employs, uses,
persuades, induces or coerces a minor under the age of 18
years, or any parent or guardian of a minor under the age of
18 years under his or her control who knowingly permits the
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minor to engage in, or assist others to engage in either
posing or modeling alone or with others for purposes of
preparing any representation of information, data, or image,
including but not limited to, any film, filmstrip, photograph,
negative, slide, photocopy, video tape, video laser disc,
computer hardware, computer software, computer floppy disc,
data storage media, CD-ROM, or computer-generated image that
contains or incorporates in any manner, any film, filmstrip,
or a live performance involving sexual conduct by a minor
under the age of 18 years alone or with others or animals, for
commercial purposes, is guilty of a felony and shall be
imprisoned in the state prison for three, six, or eight
years." [Penal Code Section 311.4(b).]
The above-cited provision is current law, but persons convicted
of that section are not subject to being listed on the Megan's
Law database. Would imprisonment and lifetime registration of
a 17-year-old videographer using another 17-year-old friend
simulating sexual conduct, such as masturbation, in a music
video significantly improve public safety?
7)Is the Exclusion Provision of This Bill Reasonable ? This bill
allows specified convicted persons to apply for exclusion from
the publicly available Megan's Law database if the person
submits to the DOJ a certified copy of the probation report
filed in court that clearly states that the depicted person
was at least 16 years of age at the time of the depiction.
This provision raises a number of questions as to the rational
basis for the provision and the reasonableness of the
requirement.
All of the statutory provisions that the bill would include on
the Megan's Law Internet Web site refer to a minor under the
age of 18 years. If a convicted person can be imprisoned for
as long as three, six, or eight years for employing a minor
under the age of 18 years for a video or film, why does that
same conduct allow the defendant to be excluded from the
Megan's Law Web site if the minor depicted was at least 16
years old? If there is a probation report, it must be assumed
that the case was reduced to a misdemeanor. Is there a
rational basis for making such a large distinction in terms of
punishment and lifetime registration as a sex offender on the
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basis of a two-year age difference? Is there something unique
about a 16-year-old minor that allows exclusion from the
Megan's Law Web site as compared to a 15-year-old minor, the
use of whom requires both lifetime registration and lengthy
state imprisonment? If presented with a 15-year-old and a
16-year-old at the same time, how many people would be able to
accurately assess which one was 15 years old and which one was
16 years old?
Moreover, much child pornography has been circulated, forwarded
via email, and viewed in other ways many times for potentially
a number of years prior to the apprehension of the defendant.
Is it reasonable to expect the probation officer to expend
significant resources attempting to identify the minor, locate
him or her, and ascertain with precision his or her age at the
time of the depiction? Do probation departments have the
resources to engage in such potentially lengthy investigative
work in preparing a probation report on a misdemeanor case?
8)The American Bar Association Center on Children and the Law :
A report, "Child Pornography: The Criminal Justice System
Response", issued by the American Bar Association and the
National Center for Missing and Exploited Children in March
2001, states that "accurate estimates [of child pornography]
are difficult because no valid and reliable methodology has
been devised to measure the amount of child pornography,
especially on the Internet. "Attempts to quantify the problem
are hindered by the difficulty of discerning the ages of those
featured in pornographic images."
The report concluded, "While a good deal is known about the
impact of child sexual abuse on children, little is known
about the specific long-term impact of sexual exploitation,
especially child pornography. Research is also scarce on
treatment programs specific to the needs of the sexually
exploited children. Without thorough examination and
evaluation of law enforcement, child welfare, and service
provision efforts, the justice system cannot accurately
understand the scope, effects or causes of child sexual
exploitation.
"Consequently extensive research should be conducted on . . .
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the characteristics of adults and others perpetrating the
crimes. Longitudinal studies and evaluations tracking
responses from law enforcement and service communities should
be pursued.
"The criminal justice system should also pursue greater
community involvement in developing prevention efforts. It
should support the development of or increase in available
treatment for victims and services for at risk youth including
prevention and early intervention. The progress of law
enforcement and service providers should be examined and
studied so that successful programs can be replicated
nationally and in other countries."
9)The Likelihood that Child Pornography Offenders Will Later
Commit a Contact Sexual Offense is Unknown : An April 2005
article by Michael C. Seto (University of Toronto, Canada, and
Center for Addiction and Mental Health,) and Angela W. Eke,
(Behavioral Sciences Research Unit Ontario Provincial Police,
and York University, Canada,) published in Sexual Abuse: A
Journal of Research and Treatment , Vol. 17, "The Criminal
Histories and Later Offending of Child Pornography Offenders",
examined a sample of 201 adult male child pornography
offenders to identify potential predictors of later offenses.
Of the sample, 56% had a prior criminal record, 24% had prior
contact sexual offenses, and 15% had prior child pornography
offenses. One-third of the sample was concurrently charged
with other crimes at the same time they were charged with the
child pornography offenses.
According to the authors of this study, "Unfortunately, there
are no published data on the future offending of child
pornography offenders. In fact, there have been only a few
empirical studies on the characteristics of individuals who
are charged with the possession, distribution, or production
of child pornography."
"This study is the first ever to report on the later offending
of a sample of child pornography offenders. 17% of the
follow-up sample of 201 offenders had offended again in some
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way within an average of approximately 2.5 years after their
release to the community, and 4% committed a new contact
sexual offense.
"Child pornography offenders with prior criminal records were
significantly more likely to offend again in any way during
the follow-up period. Child pornography offenders who had
committed a prior or concurrent contact sexual offense were
the most likely to offend again, either generally or sexually.
"As we predicted, and as would be expected based on generalist
theories of crime, there was a significant difference in later
offending between child pornography offenders classified into
groups according to the extent of their other criminal
behavior.
"Child pornography offenders who had ever committed a contact
sexual offense were the most likely to re-offend. These group
differences could be detected even though the overall rate of
sexual recidivism was low (4%.)
"Only one of the offenders with only child pornography offenses
committed a contact sexual offense in the follow-up period.
More of this group of offenders might subsequently commit a
sexual offense as the duration of the follow-up period
increases, but our finding does contradict the assumption that
all child pornography offenders are at very high risk to
commit contact sexual offenses involving children.
"Three-quarters of our total follow-up sample did not have any
known history of contact sexual offending, which is consistent
with data from another Canadian sample of child pornography
offenders (Seto et. al., 2005) and American samples of child
pornography offenders (FBI press release, retrieved from
http://www.fbi.gov/pressrel/pressrel02/
cm031802.htm , July 30, 2003.
"One limitation of our study is that we had access to only
official records, so we did not have data on psychological
variables that would be relevant to understanding child
pornography offenders. Of particular interest are variables
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that reflect anti-sociality (e.g.., anti-social attitudes and
beliefs, anti-social personality traits, childhood and
adolescent history of conduct problems) and atypical sexual
interests (e.g., self-reported interests, sexual history,
phallometric testing.)
"Another limitation is that we were only able to study
individuals who had been charged and convicted of child
pornography offenses. We did not have data from child
pornography users who had not come into contact with the
criminal justice system. Research on child pornography users
that takes advantage of methods to increase participant
recruitment and honest disclosure (e.g., anonymous Internet
surveys, certificates of confidentiality) could be very
illuminating. The ideal study design would recruit
non-criminal, non-clinical pedophiles from the community.
"Studying men who possess child pornography would allow us to
study pedophilia in a group that is less criminal, on average,
than correctional samples of sex offenders and perhaps less
clinically impaired than individuals who are assessed in
clinical settings. We would be able to determine what factors
distinguish men who have pedophilic sexual interests and do
not act on them and those who do act upon them by initiating
sexual contacts with children.
"Current theories of sexual offending would suggest that men who
go on to have sexual contacts with children will be higher on
indicators of anti-sociality (early conduct problems,
anti-social personality traits, criminal history, etc.,) than
those who do not."
10)Legislation Premised Upon Anecdotal Evidence : An article
published by the American Bar Foundation Journal of Law and
Social Inquiry questions the wisdom of Legislation enacted
without benefit of accurate information. In 27 Law & Soc.
Inquiry 529 (Summer 2002), the author states, "The speakers
relied on inaccurate actuarial / risk-based discourse to play
up the sex offender's dangerousness, their ultimate goal aimed
at constructing the sex offender as uniquely threatening even
in comparison to the run-of-the-mill felon. Thus, in each
debate, at least one speaker pointed to unspecified
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'scientific studies' which confirm that 'those who commit acts
of sexual violence against children have the highest rate of
recidivism among all criminals and crimes.' (Lampson, Cong.
Rec. 1997, H7630.)
"Congressman McCollum described the recidivism rate of
registerable sex offenders at '10 times greater than other
criminals' (Cong. Rec. 1996b, H11132) and Congresswoman
Jackson-Lee argued that 'it is a known fact that the
scientific community has concluded that most pedophiles cannot
control themselves.' (Cong. Rec. 1996b, H11134.)
"Senator Gramm cited the same 10-fold recidivism rate, here
compared to convicted robbers and again without indicating
where this figure originates, as he notes that 'sexual
predators have a recidivism rate that is higher than any other
known class of criminal activity.' (Cong. Rec. 1996c, S3423.)
The foregoing comments were made in the United States Congress
in a discussion of Megan's Law and according to the author are
illustrative of emotion-based lawmaking: "The policies
developed here are clearly not based on a careful assessment
of the most effective interventions to enhance children's
safety and well-being. . . . The level of emotional
response, coupled with the breadth and associated costs of the
enacted laws, suggest that the lawmakers are not only looking
for the easy vote, but also expressing a more deeply felt
discomfort about the pervasive threat of 'sex offenders'."
(21 Law & Soc. Inquiry 529, supra.)
Inasmuch as there is no documented body of scientific study
regarding the likelihood that people convicted of child
pornography offenses are a similar risk to the children in the
community as the most serious offenders already listed on the
new DOJ Internet Web site, does this bill fall within the
reasonable arguments of the above-cited journal that policies
should be based on a careful assessment of the most effective
interventions to enhance children's safety, rather than on a
purely emotional response?
Should additional scientific studies on this issue be researched
or conducted on the inter-relationship between child
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pornography and child sexual molestation before the scope of
the Internet Megan's Law Web site is further expanded?
11)Is This Bill Timely ? California only last year placed its
Megan's Law database on the Internet, making it more easily
accessible to members of the public. Penal Code Section
290.46(k) provides that the DOJ shall, on or before July 1,
2006 and every year thereafter, report to the Legislature
regarding the operation of the Megan's Law Internet
provisions. Since the law was only enacted last session,
there has been no report to the Legislature to date and none
is yet due.
Therefore, there is no documented evidence that the current
Internet database has problems so significant as to require a
piecemeal approach to expanding the new law. Moreover, there
is little if any evidence of even an anecdotal nature that the
current Megan's Law database is failing to accomplish the
goals of the law that implemented the Internet-based sex
offender registry.
The goal of the Megan's Law Internet Web site is to protect the
public. In view of the paucity of evidence that child
pornography offenders are likely to commit new and more
serious sex offenses against children, is there a legitimate
reason to add child pornography offenders to the Megan's Law
Internet Web site at this time? Notwithstanding the author's
assertion that child pornography offenses tend to be
indicators of future harmful behavior, the one scientific
study conducted on this issue clearly states that this is not
the case.
As stated in the Seto and Eke study, supra, there is no
published data on the future offending of child pornography
offenders. In fact, there have been only a few empirical
studies on the characteristics of individuals who are charged
with the possession, distribution, or production of child
pornography. The study concluded that the likelihood that
child pornography offenders will later commit a contact sexual
offense is unknown, while at the same time confirming the
relatively low recidivism rate; only 4% committed a new
contact sexual offense.
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a) Arguments in Support : The Children's Civil Rights Union
states, "Child pornography is never a victimless crime, and
a felony conviction for child pornography is clear evidence
that one remains a risk to children. There is no
compelling reason to include this under the "other"
category under Megan's Law, but there is compelling reason
to include this on the list available to the public. The
purpose of Megan's Law is to provide knowledge, and the
protection that knowledge can provide to potential victims
and those who protect them. Persons who make, distribute,
and use child pornography are a threat to the safety of
children, and do not deserve the special protection of the
"other" category - one afforded to juveniles and those
convicted of misdemeanors.
"I urge you to pass this bill and thus move to expand
protection for children. It is a simple change, one with
no fiscal impact, but one that will make a big difference
in the lives of California's children."
13)Arguments in Opposition :
a) The California Public Defenders Association states,
"This bill is poorly timed: Penal Code Section 290.46,
which implements AB 488 (Parra), Chapter 745, Statutes of
2004, provides in subdivision (k) that on or before July 1,
2006 and every year thereafter DOJ shall report to the
Legislature regarding the operation of Megan's Law Internet
provisions. Since the law was recently enacted, there has
been no report to date. There is no evidence to suggest
that Penal Code Section 290.46 is not accomplishing its
goals and needs to be expanded. Piecemeal and premature
legislation should therefore be avoided.
"This bill does not enhance public safety. This bill does
not coincide with the purpose of Megan's Law which is to
enhance public safety. Instead, the public listing of
individuals who have been convicted of offenses involving
Internet pornography has the effect of making them and
their families subject to community scorn.
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"The link between child pornography and the commission of sex
crimes against children is unknown. Which child
pornography offenders will go on to commit an act of
molestation is unknown as is the actual number of
pedophiles in the general population. (Newsweek, March 19,
2001.) A recent study (Michael C. Seto and Angela W. Eke,
"Sexual Abuse: A Journal of Research and Treatment",
Volume 17, 2005) found that some who look at child
pornography have no history of molesting and concluded that
the likelihood that child pornography offenders will later
commit a contact sexual offense is unknown.
"Finally, this bill's promise of exclusion is problematic:
Probation reports are not required to include information
regarding the age of the victims in child pornography
cases. Further, there are no procedures in place to ensure
that such information, if included, is accurate."
b) The California Attorneys for Criminal Justice (CACJ)
states that CACJ "objects to adding these additional
offenses to the list of crimes that puts a person on the
Megan's Law Web site. First, there is no definitive nexus
between a person who possesses child pornography at home
and public safety. A person who simply possesses a picture
of a person under 18 involved in some sort of sexual
conduct does not warrant a lifetime of having his/her
picture and identifying information on the Internet as a
sex offender. With the virtual unlimited ability to view
such pictures off the Internet coupled with the fact that
once a picture is viewed on a computer it is forever
retained there, the crime of simple possession of a single
picture is insufficient to warrant a listing on the Megan's
Law Web site.
"Additionally, CACJ objects to the strict limitation on the
exclusion allowed for these offenses. As proposed, a
person can only be excluded from the Megan's Law Web site
for a felony violation of the above-mentioned sections if
the person submits a certified copy of a probation report
filed in court that clearly states that [the depicted
person was at least 16 years of age at the time of the
depiction.] There are numerous problems with this
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provision.
"First, many cases of this sort will not have a full
probation report prepared in the matter, as these cases
typically resolve for a stipulated term in the county jail.
In older cases, probation reports no longer exist or are
otherwise impossible to obtain. In cases that are minor,
the court will not request a report.
"Even if there is a report, the probation office rarely, if
ever, will have viewed the pictures and certainly will not
have opined as to the age of the minors depicted. Since
the only age that is necessary is under 18, neither the
police nor the district attorney will have made an effort
to distinguish between a 15-year-old and a 16-year-old.
This burden will be shifted to probation officers who lack
the resources and ability to track down each young person
depicted in photographs, especially those which may have
been downloaded from the Internet and whose production
location is unknown. As a result, probation officers will
be placed in a position to speculate as to the age of a
person depicted, which is not within the gambit of their
training.
"Third, as the minors are normally unidentifiable, there is
no way to determine their actual age. Photographs can be
modified to make a person appear younger than their actual
age."
13)Related Legislation : SB 43 (Battin) would have added
specified child pornography offenses to the Megan's Law
Internet Web site. SB 43 failed passage in this Committee.
14)Prior Legislation :
a) AB 488 (Parra), Chapter 745, Statutes of 2004,
established the Megan's Law Web site.
b) SB 327 (Battin), of the 2003-04 Legislative Session, was
never heard by the Senate Public Safety Committee.
c) SB 422 (Florez), of the 2003-04 Legislative Session,
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failed passage in the Senate Appropriations Committee.
d) SB 1550 (Battin), of the 2003-04 Legislative Session,
failed passage in the Senate Public Safety Committee.
e) SB 1780 (Hollingsworth), of the 2003-04 Legislative
Session, failed passage in the Senate Public Safety
Committee.
f) SB 721 (Battin), of the 2001-02 Legislative Session, was
never heard by Senate Public Safety Committee.
g) AB 347 (Battin), of the 1999-2000 Legislative Session,
was never heard by the Assembly Appropriations Committee.
h) AB 166 (Battin), of the 1997-98 Legislative Session, was
held on the Assembly Appropriations Committee's Suspense
File.
i) AB 2471 (Battin), 1995-96 Legislative Session, failed
passage in the Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Attorney General of California
California District Attorneys Association
Children's Civil Rights Union
Sheriff, San Bernardino County
Peace Officers Research Association of California
Opposition
California Public Defenders Association
California Attorneys for Criminal Justice
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744