BILL ANALYSIS Ó
AB 321
Page 1
Date of Hearing: April 5, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 321 (Hernandez) - As Amended: March 30, 2011
SUMMARY : Requires a court to order counseling and community
service in addition to any other fine, sentence, or as a
condition of probation, for any minor adjudicated a ward of the
court because of a Penal Code Section 311.11 violation related
to the possession or control of matter depicting sexual conduct
involving a minor. Specifically, this bill :
1)Allows schools to offer classes, instruction, or programs
regarding the potential risks and consequences of creating and
sharing sexually suggestive or explicit materials through
cellular telephones, social networking Web sites, computer
networks, and other digital media.
2)States that there are 285.6 million wireless subscribers in
the United States, and the average user sends 152.7 texts per
month.
3)Defines "sexting" as the sending or receiving of sexually
explicit pictures or video images via cellular phone or
similar electronic device.
4)States that sexting is a growing problem among minors, citing
a 2008 survey by the National Campaign to Prevent Teen and
Unplanned Pregnancy which found that 20% of teens between the
ages of 13 and 19 have been sent or posted nude or semi-nude
pictures or videos of themselves.
5)States that teens generally send these images to an intended
recipient, but 38% of teens report that they have received
sexts that were meant for another person, but shared with
them.
6)States that the potential for these images to reach a wide and
unknown audience can cause the person ridicule and greatly
compromise his or her future educational and career
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opportunities.
7)States that United States Senator Robert Menendez, has
introduced the SAFE Internet Act (S. 1047), which would
allocate $175 million to fund the program and authorize the
Director of the Bureau of Justice Assistance to make grants
available to schools, state agencies, and nonprofit
organizations to assist in providing education programs for
children about the dangers of sexting.
8)States that in an incident of cyberbullying, photos of a
sexual encounter can be recorded on a cell phone camera and
posted on the Internet within an hour.
9)States that according to the Pew Research Center, sexting has
become a form of relationship currency that causes girls, in
particular, to feel pressure to send sexually explicit images.
10)States that sexting extends beyond being a source of
embarrassment, but can also prevent those pictures in the
images from obtaining certain types of employment and even
scholarships.
11)States that developments in technology and communications
have allowed for widespread dissemination of these damaging
images within moments, and that the nature of today's
technology is such that these images may never be recovered or
removed from the Internet.
12)States that counseling shall be at the expense of the minor's
parents, and that inability to pay for counseling does not
relieve the minor of his or her counseling requirement.
EXISTING LAW :
1)Prohibits the possession or control of any matter,
representation of information, data, or image, including, but
not limited to, any film, filmstrip, photograph, negative,
slide, photocopy, videotape, video laser disc, computer
hardware, computer software, computer floppy disc, data
storage media, CD-ROM, or computer-generated equipment or any
other computer-generated image that contains or incorporates
in any manner, any film or filmstrip, the production of which
involves the use of a person under the age of 18 years,
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knowing that the matter depicts a person under the age of 18
years personally engaging in or simulating sexual conduct, as
defined. Violation of this section is a felony and shall be
punished by imprisonment in the state prison, or a county jail
for up to one year, or by a fine not exceeding $2,500, or by
both the fine and imprisonment. (Penal Code Section 311.11.)
2)Defines "sexual conduct" 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 specified, 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. ÝPenal Code Section 311.4(d)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill
addresses the growing problem (among minors) that law
enforcement, the community, the media and opinion leaders
refer to as 'sexting.' 'Sexting' is an imprecise term that
refers to the sending of sexually explicit images via an
electronic device, most commonly a cell phone.
"Members, the world around us is transforming as a result of
rapidly changing methods of communication. According to the
CTIA Wireless Association, 152.7 billion texts are sent each
month (2009 figure). Children are no less affected by this
phenomenon, especially with the number of children who own
cell phones significantly increasing in recent years.
Approximately 40%-75% of middle school students own cell
phones, with even higher rates for high school students.
"With this trend, communities across the nation are finding that
more and more children are engaging in 'sexting.' According
to a 2008 survey (conducted by the National Campaign to
Prevent Teen and Unplanned Pregnancy), 20% of teens between
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the ages of 13 and 19 have sent nude images of themselves -
that's 1 out of every 5 children. One of the main concerns
with 'sexting' is that it has become a form of 'relationship
currency', where one person feels pressured to send these
images in order to get closer to the other person.
"We are well aware of the dangers of sexting as policy makers.
With a mere push of a button, these images can be disseminated
to a wide and unknown audience within seconds and is
impossible to undo. Ridicule, torment, teasing, and bullying
commonly follow after these images are widely distributed. In
some extremely unfortunate cases, teens (in Florida and Ohio)
have committed suicide because the trauma was too great for
them to deal with.
"AB 321 seeks to penalize individuals who maliciously
disseminate sexually explicit electronic images of a minor
without his or her consent. Specifically, it would require
those individuals to perform community service and undergo
counseling, in addition to anything the court deems is
appropriate. Realizing the importance of raising awareness
and educating our youth about the dangers of 'sexting', AB 321
would also allow school districts to provide instruction
relating to the consequences of 'sexting.'"
2)Protected Speech : This bill requires a juvenile court to
impose mandatory counseling and community service on a minor
who is adjudicated a ward of the court because of a Penal Code
Section 311.11 violation. The definitions of "sexual conduct"
found within that Penal Code Section 311.11 and Penal Code
Section 311.4 are narrowly drafted to avoid freedom of speech
concerns under the First Amendment of the United States
Constitution.
The hallmark of protection of free speech under the First
Amendment is to allow for the "free trade in ideas" - even
ideas that the overwhelming majority of people might find
distasteful or discomforting. ÝVirginia v. Black (2003) 538
U.S. 343; see also Texas v. Johnson (1989) 491 U.S. 397, 414
("If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable.").] Thus, the First
Amendment "ordinarily" denies states "the power to prohibit
Ýthe] dissemination of social, economic and political
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doctrines which a vast majority of its citizens believe to be
false and fraught with evil consequence." ÝWhitney v.
California (1927) 274 U.S. 357, 374 (Brandeis, J.,
dissenting).] Even "Internet speech that is merely critical,
annoying, offensive, or demeaning enjoys constitutional
protection." (Statement of the Anti-Defamation League on Hate
on the Internet before the Senate Committee on the Judiciary,
FDCH Pol. Transcripts, Sept. 14, 1999, available at 1999 WL
27594383.) The First Amendment also affords protection to
symbolic or expressive conduct as well as to actual speech.
ÝSee, e.g., R. A. V. v. City of St. Paul (1992) 505 U.S. 377,
382; United States v. O'Brien (1968) 391 U.S. 367; Tinker v.
Des Moines Independent Community School Dist. (1969) 393 U.S.
503, 505.]
However, the protections afforded by the First Amendment are not
absolute. It has long been recognized that the government may
regulate certain categories of expression consistent with the
Constitution. ÝSee, e.g., Chaplinsky v. New Hampshire (1942)
315 U.S. 568, 571-572 ("There are certain well-defined and
narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any
Constitutional problem").] The First Amendment permits
"restrictions upon the content of speech in a few limited
areas, which are 'of such slight social value as a step to
truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality'." ÝR. A. V. v. City of St. Paul, supra, at 382-383
(quoting Chaplinsky v. New Hampshire, supra, at 572).]
a) Sanctioning Speech to Protect Minors : When it comes to
restricting the display of sexually explicit images, there
is perhaps no better judicially or legislatively accepted
justification than protecting minors. ÝSee Reno v. ACLU
(1997) 521 U.S. 844, 875.] The Supreme Court has
recognized that a state may legitimately sanction
activities which amount to harmful conduct rather than
"pure speech," particularly when the conduct in question
involves the use of children to make sexual material for
pedophiles. ÝNew York v. Ferber (1982) 458 U.S. 747,
770-771.] The use of children as subjects of pornographic
materials is harmful to the physiological, emotional, and
mental health of the child. ÝGlobe Newspaper Co. v.
Superior Court (1982) 457 U.S. 596, 757; Osborne v. Ohio
(1990) 495 U.S. 103, 109.] The psychological effect of
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visually recording the sexual exploitation of a child is
devastating and its elimination is of surpassing
importance." (New York v. Ferber, supra, 458 U.S. 747,
757.) Since the child's image is permanently recorded, the
pornography may haunt the victim for a lifetime as the
child will be aware that the offensive photograph or film
is circulating through the masses. ÝId. at 759 n.10
(quoting Shouvlin, Preventing the Sexual Exploitation of
Children: A Model Act (1981) 17 Wake Forest L. Rev. 535,
545.] The crime is the affront to the dignity and privacy
of the child and the exploitation of the child's
vulnerability:
"Human dignity is offended by the pornographer. American law
does not protect all human dignity; legally, an adult can
consent to its diminishment. When a child is made the
target of the pornographer-photographer, the statute will
not suffer the insult to the human spirit, that the child
should be treated as a thing." ÝUnited States v. Wiegand
(9th Cir. 1987) 812 F.2d 1239, 1245 cert. den. (1987) 484
U.S. 856.]
b) The "Lascivious Exhibition" of Children is Not Protected
Speech : In United States v. Knox (3d Cir. 1994) 32 F.3d
733, the United States Court of Appeals for the Third
Circuit held that a lascivious exhibition of the genitals
or pubic area may constitute unprotected child pornography
under federal law "even when those areas are covered by an
article of clothing and are not discernible." (Id. at
754.) In Knox, all of the young children "wore bikini
bathing suits, leotards, underwear, or other abbreviated
attire while they were being filmed." (Id. at 737.)
Despite the absence of nudity, the images were held to be
child pornography in part because the "photographer would
zoom in on the children's pubic and genital area and
display a close-up view for an extended period of time."
(Id.)
The term "lascivious" is defined as "tending to excite lust;
lewd; indecent; obscene; sexual impurity; tending to
deprave the morals in respect to sexual relations;
licentious." ÝBlack's Law Dictionary (6th ed. 1990) p.
882.] "Lascivious" is not unconstitutionally vague since
it has same meaning as "lewd," a term which has been held
to be constitutional by United States Supreme Court;
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"lascivious exhibition of the genitals" is not limited to
depictions of minors presenting sexual activity or
willingness to engage in that activity, but includes all
depictions featuring children as sexual objects so
presented as to arouse or satisfy sexual cravings of
voyeur. ÝUnited States v. Wiegand (9th Cir. 1987) 812 F.2d
1239, cert. den. (1987) 484 U.S. 856 and criticized in
United States v. Amirault (1st Cir. 1999) 173 F.3d 28.]
c) Determining Lasciviousness : The Dost factors were
articulated in order to provide a test for determining
whether a visual depiction of a minor constitutes a
"lascivious exhibition of the genitals or pubic area."
ÝUnited States v. Dost (S.D. Cal. 1986) 636 F. Supp 828,
832.] The Dost factors are as follows:
"(1) Whether the genitals or pubic area are the focal point
of the image; (2) whether the setting of the image is
sexually suggestive (i.e., a location generally associated
with sexual activity); (3) whether the child is depicted in
an unnatural pose or inappropriate attire considering her
age; (4) whether the child is fully or partially clothed,
or nude; (5) whether the image suggests sexual coyness or
willingness to engage in sexual activity; and (6) whether
the image is intended or designed to elicit a sexual
response in the viewer." ÝUnited States v. Amirault,
supra, 173 F.3d 28, 31 (citing Dost, supra 636 F. Supp. at
832).]
The analysis is qualitative and no single factor is
dispositive. ÝUnited States v. Villard (3d Cir. 1989) 885
F.2d 117, 122.] Many federal courts have relied on the
Dost factors for determining lasciviousness, most notably
the Ninth Circuit. ÝSee United States v. Arvin (9th Cir.
1990) 900 F.2d 1385m 1390-92 & n.4, cert. den. (1991) 498
U.S. 1024; United States v. Wolf (10th Cir. 1989) 890 F.2d
241, 244-246; United States v. Rubio (5th Cir. 1987) 834
F.2d 442, 448 (discussing the six Dost factors without
citing to the Dost case); United States v. Nolan (1st Cir.
1987) 818 F.2d 1015, 1019 n.5; United States v. Mr. A.
(E.D. Mich. 1991) 756 F.Supp. 326, 328-29.]
Further, in United States v. Wiegand, supra, 812 F.2d 1239,
1244-45, the Ninth Circuit Court of Appeals stated that the
child subject need not to have actually engaged in sexually
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explicit conduct with a lascivious intent. "Lascivious
exhibition of the genitals or pubic area" of a minor
necessarily requires only that the material depict some
"sexually explicit conduct" by the minor which appeals to
the lascivious interest of the intended audience. The harm
Congress attempted to eradicate by enacting child
pornography laws is present when a photographer unnaturally
focuses on a minor child's clothed genital area with the
obvious intent to produce an image sexually arousing to
pedophiles. (United States v. Knox, supra, 32 F.3d 733,
750.)
d) Punishing Guilty Thoughts and Overbreadth : In United
States v. Williams (2007) 444 F.3d 1286, a defendant
appealed the decision entered by the United States District
Court for the Southern District of Florida that convicted
him of promoting, or "pandering," material "in a manner
that reflects the belief, or that is intended to cause
another to believe," that the material contains illegal
child pornography under Title 18 United States Code section
2252A(a)(3)(B). "Pandering" is defined as the catering or
exploitation of the weaknesses of others, especially, "to
provide gratification for others' desires." ÝSee Merriam
Webster Online Dictionary (last visited March 14, 2008)
.]
The Williams court recognized that Congress has struggled to
draft legislation that captures the truly objectionable
child-exploitative materials while staying within the
boundaries of the Supreme Court's First Amendment
jurisprudence. (United States v. Williams, supra, 444 F.3d
1286, 1290.) The court stated, "Protection of our children
against sexual abuse and predatory pedophiles is of
extraordinary importance. We do not question that strong
federal laws are needed, but they must pass constitutional
muster. In other words, Congress may not 'burn the house
to roast the pig'." ÝId. (quoting Butler v. Michigan
(1957) 352 U.S. 383).]
The Williams court found it was particularly objectionable to
criminalize speech that "reflects the belief" those
materials constitute obscene child pornography because no
regard is given to the actual nature or even the existence
of the underlying material. (United States v. Williams,
supra, 444 F.3d 1286, 1290, 1298.) Liability can be
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established based purely on promotional or solicitous
speech reflecting that an individual finds certain
depictions of children lascivious. (Id. at 1299.) The
court reasoned that Title 18 United States Code section
2252A(a)(3)(B):
" . . . does not seek to attach liability to the materials,
but to the ideas and images communicated to the viewer by
those materials. This shifts the focus from a community
standard to the perverted but privately held belief that
materials are lascivious. Through this lens, virtually all
depictions of children, whom to pedophiles are highly
eroticized sexual objects, are likely to draw a deviant
response. Many pedophiles collect and are sexually
stimulated by nonpornographic depictions of children such
as commercially produced images of children in clothing
catalogs, television, cinema, newspapers, and magazines -
otherwise innocent pictures that are not traditionally seen
as child pornography and which non-pedophiles consider
innocuous." ÝId. at §§ 1299-1230 see, e.g. Adler, The
Perverse Law of Child Pornography (2001) 101 Colum. L.Rev.
209, 259-260. The highly eroticized use of children in
fashion, television, and advertising is now the "soft porn"
of child pornography. Members of the North American Man
Boy Love Association reportedly find erotic stimulation by
watching children on network television, the Disney
channel, and mainstream films.]
Freedom of the mind is a highly protected position in
America's constitutional heritage. (Id.) Even when an
individual's ideas concern immoral thoughts about images of
children, the Supreme Court has steadfastly maintained the
right to think freely. As the court stated in Ashcroft v.
Free Speech Coalition (2002) 535 U.S. 234, 243, "First
Amendment freedoms are most in danger when the government
seeks to control thought or justify its laws for that
impermissible end. The right to think is the beginning of
freedom, and speech must be protected from the government
because speech is the beginning of thought." The court
reiterated that the concern with child pornography is
"physiological, emotional, and mental health" of children,
and thus regulation is permissible only when targeted at
the evils of the production process itself, and not the
effect of the material on its eventual viewers. (Id.)
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e) No Expansion of the Definition of "Sexual Conduct ": This
bill does not expand the Penal Code's definition of sexual
conduct and therefore does not implicate First Amendment
concerns.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs' Association
Opposition
California Public Defenders Association
Youth Law Center
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744