BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 203|
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THIRD READING
Bill No: SB 203
Author: Harman (R), et al
Amended: 1/15/10
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE 7-0, 1/12/10
AYES: Leno, Cedillo, Hancock, Huff, Steinberg, Wright,
Cogdill
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Child pornography
SOURCE : Author
DIGEST : This bill expressly states in statute that the
distribution of child pornography includes making the
material available through the Internet. All other
provisions will be amended out of this bill.
ANALYSIS : 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 [1981]458 U.S. 747.)
Existing law includes the following definitions relevant to
this bill:
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1."Matter" is 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 statute 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."
(Penal Code Section 311, subd. (b).)
2.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 performed excretory functions. (Penal Code
Section 311.4.)
3.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. (Penal Code Section 311, subd. (a).)
4."Distribute" is defined as to "transfer possession of,
whether with or without consideration." (Penal Code
Section 311, subd. (d).)
This bill expressly states 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 (1991) 7 Cal.App.45h 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
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SUPPORT : (Verified 1/20/10)
California District Attorneys Association
California Peace Officers Association
California Police Chiefs' Association
California Probation, Parole and Correctional Association
California State Sheriffs' Association
Child Abuse Prevention Council of Contra Costa County
PawPac
San Bernardino County Sheriff
Tulare County District Attorney
ARGUMENTS IN SUPPORT : According to the author's office,
"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 program such as
Limewire, Kazaa, and Gnutella."
RJG:cm 1/20/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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