BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
2
0
3
SB 203 (Harman)
As Amended April 16, 2009
Hearing date: April 28, 2009
Penal Code
JM:mc
CHILD PORNOGRAPHY:
DEPICTIONS OF MULTIPLE PERSONS
HISTORY
Source: California District Attorneys Association
Prior Legislation: None
Support: San Bernardino County Sheriff's Department
Opposition:Taxpayers for Improving Public Safety
KEY ISSUES
FOR PURPOSES OF CHILD PORNOGRAPHY CRIMES, SHOULD "DISTRIBUTE" BE
DEFINED TO INCLUDE TRANSMISSION OVER THE INTERNET?
SHOULD THE LEGISLATURE EXPRESS APPROVAL OF A COURT DECISION
HOLDING THAT CHILD PORNOGRAPHY IS LIMITED TO VISUAL DEPICTIONS
OF MINORS ENGAGED IN SEXUAL CONDUCT, AS SPECIFIED?
(CONTINUED)
(More)
SB 203 (Harman)
PageB
SHOULD THE DEPICTION OF EACH INDIVIDUAL MINOR IN CHILD PORNOGRAPHY
MATERIAL, AS DEFINED, BE THE BASIS OF A SEPARATE CHILD PORNOGRAPHY
CHARGE AND CONVICTION?
SHOULD THE DEPICTION OF EACH INDIVIDUAL IN OBSCENE MATERIAL, AS
DEFINED, BE THE BASIS OF A SEPARATE CHARGE AND CONVICTION?
PURPOSE
The purposes of this bill are to 1) provide that each depiction
of a separate individual child engaged in sexual conduct
constitutes a separate child pornography crime; 2) provide that
each depiction of a separate person in obscene material
constitutes a separate crime; 3) state legislative approval of a
court decision holding that child pornography is limited to
"visual" depictions of minors engaged in sexual conduct, as
specified; and 4) provide that "distribution" of child
pornography includes transmission over the Internet.
Existing law provides that possessing or importing into
California any obscene matter for sale or distribution is guilty
of a misdemeanor for a first conviction. A second or subsequent
conviction is a felony, with increased fines. (Pen. Code
311.2, subd. (a) and 311.9.)
Existing law provides that every person who sends, brings,
possesses, prepares, publishes, produces, duplicates or prints
any obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct, with the intent to
distribute, exhibit, or exchange such material, is guilty of
either a misdemeanor or a felony, punishable by imprisonment in
the county jail up to one year or in the state prison for 16
months, 2 or 3 years and a fine not to exceed $10,000. (Pen.
Code 311.1.)
(More)
SB 203 (Harman)
PageC
Existing law specifies that every person who sends, brings,
possesses, prepares, publishes, produces, duplicates or prints
any obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct for commercial purposes
is guilty of a felony, punishable by imprisonment in the state
prison for two, three, or six years and a fine up to $100,000.
(Pen. Code 311.2, subd. (b).)
Existing law provides that 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 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. It is not necessary to prove commercial
consideration or that the matter is obscene. (Pen. Code
311.2, subd. (d).)
Existing law provides that any person who hires or uses a minor
to assist in the preparation or distribution of obscene matter
is guilty of a misdemeanor. If the person has a prior
conviction, he or she is guilty of a felony with imprisonment in
the state prison for 16 months, 2 or 3 years. (Pen. Code
311.4, subd. (a).)
Existing law provides that any person who hires or uses a minor
to assist in the possession, preparation or distribution of
obscene matter for commercial purposes is guilty of a felony,
punishable by imprisonment in the state prison for three, six,
or eight years. (Pen. Code 311.4, subd. (b).)
Existing law states that every person who writes, creates, or
solicits the publication or distribution of advertising or other
promotional material, or who in any manner promotes the sale,
distribution, or exhibition of matter represented or held out by
him or her to be obscene, is guilty of a misdemeanor. (Pen.
Code 311.5.)
Existing law provides that a person who violates Section 311.5
(promotional material involving obscenity) or Section 311.2
(More)
SB 203 (Harman)
PageD
(distribution or sale of obscene material or child pornography),
except subdivision (b) of Section 311.2 (commercial distribution
of obscene matter depicting minors), is a misdemeanor punishable
by a fine of not more than $1,000 plus $5 for each additional
unit of prohibited material, not to exceed $10,000, or by
imprisonment in the county jail for not more than six months
plus one day for each additional unit of prohibited material,
not to exceed 360 days in the county jail, or by both
such fine and imprisonment. If such person has previously been
convicted of any offense in this chapter, or of a violation of
Section 313.1, a violation of Section 311.2 or 311.5,
except subdivision (b) of Section 311.2, is punishable as a
felony. (Pen. Code 311.9, subd. (a).)
Existing law provides that a person who violates Section 311.7
(conditioning book, newspaper, et cetera, distribution or
franchise on acceptance of obscene material) is guilty of a
misdemeanor, punishable by a fine of not more than $1,000 or
imprisonment in the county jail for not more than 6 months, or
both. For a second and subsequent offense, the defendant shall
be punished by a fine of not more than $2,000, or by
imprisonment in the county jail for not more than one year, or
both. If such person has been twice convicted of a violation of
crimes involving illegal sexual material, a violation of Section
311.7 is punishable as a felony. (Pen. Code 311.9, subd.
(c).)
Existing law provides that possession of material that depicts a
person under 18 years of age engaged in actual or simulated
sexual conduct (sexual posing, masturbation, sex acts) is an
alternate felony-misdemeanor, punishable by imprisonment in
the county jail for up to 1 year, or by imprisonment in state
prison for 16 months, 2 years, or 3 years, or by a fine of up to
$2,500, or both (Pen. Code 311.11, subd. (a).)
Existing law provides that if a criminal defendant is convicted
of possession of material that depicts a person under 18 years
of age engaged in actual or simulated sexual conduct (sexual
posing, masturbation, sex acts), and the defendant has been
previously convicted of any crime for which the defendant must
(More)
SB 203 (Harman)
PageE
register as a sex offender, the defendant is guilty of a felony,
punishable by a term of 2, 4, or 6 years in prison and a fine of
up to $10,000. (Pen. Code 311.11, subd. (b).)
Existing law provides that crimes involving depictions of minors
engaged in actual or simulated sexual conduct) does not apply to
"drawings, figurines, statues, or any film rated by the Motion
Picture Association of America [MPAA]." (Pen. Code 311.11,
subd. (d).)
Existing law , as interpreted by relevant appellate decisions,
provides that Penal Code Section 311.11 "requires a real minor
and also requires knowledge of minority on the part of the
perpetrator." (People v. Kurey (2001) 88 Cal.App.4th 840, 847.)
Existing law provides that the state can prohibit non-obscene
matter that depicts a person under the age of 18 personally
engaging in or personally simulating sexual conduct. Such laws
are based on the compelling state interest in protecting
children from abuse. (New York v. Ferber (1982) 458 U.S. 747.)
Existing law includes the following definitions relevant to this
bill:
"Matter" is broadly defined, as "any book, magazine,
newspaper, or other printed or written material, or any
picture, drawing, photograph, motion picture, or other
pictorial representation, or any statue or other figure, or
any recording, transcription, or mechanical, chemical, or
electrical reproduction, or any other article, equipment,
machine, or material." Matter also includes "live or
recorded telephone messages if transmitted, disseminated,
or distributed as part of a commercial transaction." (Pen.
Code 311, subd. (b).)
Sexual conduct, actual or simulated, is defined as:
masturbation, sexual intercourse, oral copulation, anal
intercourse, bestiality, sexual sadism, lewd or lascivious
penetration of the vagina or rectum by any object,
exhibition of the genital, pubic or rectal areas for
purposes of sexual stimulation of the viewer, and lewdly
(More)
SB 203 (Harman)
PageF
performed excretory functions. (Pen. Code 311.4.)
Obscene matter is matter, taken as a whole, that to the
average person, applying contemporary statewide standards,
appeals to the prurient interest, that, taken as a
whole, depicts or describes sexual conduct in a patently
offensive way, and that, taken as a whole, lacks serious
literary, artistic, political, or scientific value. (Pen.
Code 311, subd. (a).)
"Distribute" is defined as to "transfer possession of,
whether with or without consideration." (Pen. Code 311,
subd. (d).)
This bill provides that to "distribute," obscenity or child
pornography laws includes making the material "available for
access or possession over the Internet."
This bill states legislative approval of the holding of People
v. Cantrell (1992) 7 Cal.App.4th 523 that "depict[ions of] a
person under the age of 18 years personally engaging in or
personally simulating sexual conduct" is limited to visual
works.
This bill provides that "depiction of each individual person" in
child pornography or obscene material "shall constitute a
distinct and separate offense." The bill specifies that the
intention of the provisions concerning convictions based on each
person depicted in child pornography or obscenity is to abrogate
two specified appellate decisions -- People v. Manfredi (2008)
169 Cal. App. 4th 622, and People v. Hertzig (2007) 156
Cal.App.4th 398.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
(More)
SB 203 (Harman)
PageG
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
(More)
SB 203 (Harman)
PageH
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .Under the PLRA, any prisoner release order that
we issue will be narrowly drawn, extend no further
than necessary to correct the violation of
constitutional rights, and be the least intrusive
means necessary to correct the violation of those
rights. For this reason, it is our present intention
to adopt an order requiring the State to develop a
plan to reduce the prison population to 120% or 145%
of the prison's design capacity (or somewhere in
between) within a period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
--------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
(More)
SB 203 (Harman)
PageI
The author states:
SB 203 seeks to amend Penal Code section 311.11.
Under current law, a person in possession of multiple
images of child pornography is subject to only one
conviction for possession, rather than multiple
counts. SB 203 would amend the code to specify that
the depiction of each individual person constitutes a
distinct and separate offense.
Also in current law, Penal Code Chapter 7.5 relative
to child pornography completely ignores peer-to-peer
file transfers which are an increasingly popular
method of file-sharing over the internet. Pedophiles
make downloaded images of child sexual exploitation
available for distribution to others by virtue of
enabling the "share" function in their peer-to-peer
program, which makes those images available to
millions of people over the internet.
SB 203 remedies this evidentiary problem by amending
the definition of "distribute," as used in Chapter
7.5, to include "making available for access or
possession over the Internet." This will allow
prosecutors to charge a felony punishable by up to six
years when a person makes child pornography available
via a peer-to-peer file program such as Limewire,
Kazaa, and Gnutella.
2. Where a Crime or Penalty Provision is Defined in Terms of the
Defendant Possessing "Any" Item, "Any" Generally Means One or
More, thus Allowing only a Single Conviction, Regardless of
the Number of Items Possessed by the Defendant
Courts have found the word "any" in a crime definition or
penalty provision to be ambiguous in that it can mean the
singular or the plural. An ambiguity in a criminal statute must
be interpreted in favor of the defendant. Thus, for example, a
defendant who possesses multiple items of child pornography is
(More)
SB 203 (Harman)
PageJ
guilty of only one crime if the governing statute forbids
possession of "any" such items. A person who manufactures
methamphetamine in the presence of "any" children receives a
single two-year enhancement, regardless of the number children
present during commission of the crime. (Health and Saf. Code
11379.7, subd. (a).)
A 2008 case applied the rule in a case involving child
pornography:
People v. Bowie, supra, 72 Cal.App.3d 143 was also
relied on in Hertzig. In Bowie the defendant was
found in the possession of 11 identical blank checks.
He was charged with and convicted of 11 counts of
possession of blank checks with intent to defraud. On
appeal he claimed he should have been convicted of
only one count because his possession of the 11
identical blank checks was a single act. The statute
(former 475) stated that "[e]very person who ? has
or keeps in his possession ? any blank or unfinished
check" with the requisite intent is guilty of a
violation of former section 475. (People v. Bowie,
supra, at p. 156.) Relying on People v. Puppilo,
supra, 100 Cal.App. 559, the appellate court found
that "[a]lthough the statute refers to 'any check,'
the singular includes the plural." (People v. Bowie,
supra, at p. 156.) The appellate court rejected the
respondent's argument that there were 11 potential
victims as the controlling factor because the crime
there was based on possession, as opposed to forgery.
The court held that the defendant properly could be
convicted of only one count based on the 11 checks.
(Id. at p. 157.) People v. Manfredi (2008) 169 Cal.
App. 4th 622, 631.
This bill essentially seeks to overturn the basis for the
decision in Manfredi and another recent decision cited by the
Manfredi court - People v. Hertzig (2007) 156 Cal.App.4th 398.
3. This Bill does not Distinguish Among Child Pornography Based
(More)
SB 203 (Harman)
PageK
on the Nature of the Material, but Rather on the Number of
Minors Depicted in the Material
Broad Definitions of Child Pornography - Consequences and
Issues Raised by this Bill
This bill would provide that each person depicted in child
pornography would constitute a separate offense. For example, a
person who possessed a DVD or magazine which contained sexually
posed images of 100 minors could be charged with and convicted
of 100 child pornography possession crimes. A person who
distributed or exchanged such material could be charged with and
convicted of 100 crimes involving commerce in child pornography.
The crime described in Section 311.11 is not defined as "child
pornography" per se. Rather, Section 311.11 criminalizes
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
----------------------------
<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).)
(More)
SB 203 (Harman)
PageL
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> Recent media reports have documented
prosecutions of minors for so-called "sexting."<5>
Under this bill, because of how broadly child pornography is
defined, the possession or exchange of numerous images depicting
tasteless teenage posing would be subject to much greater
penalties than a defendant who possesses truly explicit and
repugnant depictions of a young child.
Prosecutorial Leverage if Each Person Depicted Constitutes a
Separate Crime
The ability to charge a person with a separate crime based on
each person depicted in matter containing child pornography
would give prosecutors tremendous leverage in plea bargaining
child pornography charges. A defendant who faces literally
dozens of convictions, with corresponding sentences, would very
likely agree to plead guilty rather than risk the consequences
of losing at trial. Even defendants with good defenses to child
pornography charges might readily accept a plea bargain under
such circumstances.
BECAUSE OF HOW BROADLY CHILD PORNOGRAPHY IS DEFINED UNDER
CURRENT LAW, COULD A DEFENDANT WHO POSSESSES OR EXCHANGES CHILD
---------------------------
<4> The complexity of Section 311.11 is further illustrated by
exceptions to its application. The section does not apply to
"drawings, figurines, statues, or any film rated by the Motion
Picture Association of America [MPAA]." Possession of
depictions of conduct that perhaps would be routine or
unremarkable in rated films or in material that might be
accepted as "art," constitutes a crime under Section 311.11 if
the depictions do not appear in such contexts. For example, an
unrated documentary or other accurate depiction of relatively
common behavior of high school students likely would be criminal
under a broad interpretation of Section 311.11.
<5> See, e.g., Sexting' Shockingly Common Among Teens, (CBS
News), http://www.cbsnews.com/stories/
2009/01/15/national/main4723161.shtml.
(More)
SB 203 (Harman)
PageM
PORNOGRAPHY INVOLVING SEXUALLY-POSING TEENS BE SUBJECT TO MUCH
GREATER PENALTIES THAN A PERSON WHO POSSESSES GRAPHIC AND
DISTURBING IMAGES OF SERIOUS ABUSE OF A SINGLE YOUNG CHILD?
WOULD THIS BILL GIVE PROSECUTORS TOO MUCH LEVERAGE IN PLEA
BARGAINING CHILD PORNOGRAPHY CHARGES?
(More)
4. Obscenity Crimes and Convictions Based on Each Person Depicted
in the Material
This bill - in defining each image in illegal sexual material as
a separate crime - applies to obscene matter as well as child
pornography. Material is obscene if, according to community
standards, it has no redeeming value and appeals purely to
prurient interests. The community from which community
standards are drawn and measured is the entire state. Obscene
material need not be visual and the subject need not be an
actual person. Arguably, some of the most famous obscenity
trials and court rulings in recent times have involved books
(Henry Miller's Tropic of Cancer - trial and appeal 1961-1964)
and audio recordings (2 Live Crew's As Nasty as They Wanna Be,
obscenity trial in 1990).
Arguably, a crime definition under which each separate image in
illegal material constitutes a separate crime does not apply to
obscenity, while it might relatively easily be applied to 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. 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.
Defining each "obscene" image of a separate person would treat
visual forms of obscene material very differently than written
or oral forms of obscenity. Further, the number of crimes
committed would depend on whether or not the material depicts an
actual person. Defendants charged with multiple counts of
obscenity because the material at issue involved images of
people would likely argue that they were denied equal protection
of the law as compared with a person charged with a single count
(More)
SB 203 (Harman)
PageO
of obscenity as to a written work.
The author may intend to apply this bill to obscene matter that
depicts minors engaged in sexual conduct. The bill does not
make that clear. Perhaps the bill should be amended to clarify
this point.
This issue may be unimportant in practice. Proving that a
matter is obscene is a very different and much more difficult
task than proving that certain material is child pornography.
Simply put, obscenity prosecutions virtually never occur.
Although material depicting very young children being sexually
abused would likely be found to be obscene, it is much simpler
and more direct to use the child pornography statutes.
WOULD THE PROVISIONS IN THIS BILL STATING THAT EACH IMAGE OF A
PERSON DEPICTED IN AN ITEM OF OBSCENE MATERIAL SELDOM BE USED
BECAUSE OF THE DIFFICULTY IN BRINGING AN OBSCENITY PROSECUTION?
SHOULD THE LAW DEFINE OBSCENE VISUAL DEPICTIONS OF PERSONS
DIFFERENTLY THAN OTHER FORMS OF OBSCENE MATERIAL, AND WOULD SUCH
A DEFINITION VIOLATE EQUAL PROTECTION?
***************