BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 1255|
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THIRD READING
Bill No: SB 1255
Author: Cannella (R), et al.
Amended: 5/6/14
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 4/29/14
AYES: Hancock, Anderson, Knight, Liu, Mitchell, Steinberg
NO VOTE RECORDED: De Le�n
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Disorderly conduct: unlawful distribution of image
SOURCE : Author
DIGEST : This bill provides that distribution without consent
of an image of an intimate body part or sexual act of another
identifiable person is a misdemeanor; and provides statutes
involving search warrants, forfeiture and determination of the
place of trial for a crime committed in multiple jurisdictions
be applied to unauthorized distribution of an intimate image.
ANALYSIS :
Existing law:
1.Provides that every person who, with intent to annoy,
telephones or makes contact by means of an electronic
communication device with another and addresses to or about
the other person any obscene language, or addresses to the
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other person any threat to inflict injury to the person or
property of the person addressed or any member of his/her
family is guilty of a misdemeanor. The statute does not apply
to communication made in good faith.
2.Defines the term "electronic communication device" to include,
but not be limited to telephones, cellular phones, computers,
Internet Web pages or sites, Internet phones, hybrid
cellular/Internet/wireless devices, personal digital
assistants, video recorders, fax machines, or pagers.
3.Provides that a person who has "suffered harassment" may seek
a temporary restraining order and an injunction to prevent
such harassment.
4.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, two or three years and a fine not to exceed
$10,000.
5.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.
6.Authorizes issuance of a search warrant in specified
circumstances, usually involving evidence of a felony.
This bill:
1.States that any person who intentionally distributes the image
without consent of the intimate body part of another
identifiable person, or the image of the person engaged in an
act of sexual intercourse or masturbation, is guilty of a
misdemeanor, punishable by imprisonment in a county jail for
up to six months, a fine of up to $1,000, or both, if the
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image was agreed to remain in private, or if the person
distributing the image knows or should know that the
distribution of the image will cause serious emotional
distress.
2.Defines that a person "intentionally distributes an image"
when he/she personally distributes the image, or arranges,
specifically requests, or intentionally causes another person
to distribute that image.
3.Defines that "intimate body part" means any portion of the
genitals, the anus, and in the case of a female, also includes
any portion of the breasts below the top of the areola, that
is either uncovered or clearly visible through clothing.
4.States that when a person is granted probation for a
conviction, it shall be a condition of probation that the
person destroy any physical image and permanently delete any
digital image involved in the offense or that could be the
basis of a prosecution if distributed.
5.Allows a court to impose any reasonable condition of probation
limiting or restricting the person's use of any device for the
creation, storage, or distribution of digital images.
6.States the following conduct does not constitute commission of
this crime:
A. Distribution made in the course of reporting an unlawful
activity.
B. Distribution "made in compliance with a subpoena or
other court order for use in a legal proceeding."
C. Distribution of an image captured in a public or
commercial setting where the person depicted voluntarily
exposed his/her intimate body part or parts or voluntarily
engaged in a sexual act.
D. Distribution made in the course of a lawful public
proceeding.
1.Provides that the proper jurisdiction or venue - county of
trial - for prosecution of this offense includes the following
counties:
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A. The county "in which the offense occurred."
B. The county in which the victim resided "at the time the
offense was committed."
C. The county in which the "intimate image was used for an
illegal purpose."
1.Provides that where multiple offenses of unauthorized
distribution of an intimate image, involving the same
defendant or defendants and the same intimate image "belonging
to the one person," or involving the same defendant or
defendants in one scheme or "substantially similar activity"
occur in multiple jurisdictions, any of those jurisdictions is
a proper jurisdiction for all of the offenses.
2.Provides that where a charge of unauthorized distribution of
an intimate image occurring in multiple jurisdictions is filed
in one county, the court shall hold a hearing to determine in
which county the case should proceed, or where one or more
counts should be severed and tried in another jurisdiction.
The district attorney in the county of filing shall present
that the district attorney in each county where the case could
be tried has agreed that the case should proceed in the county
of filing.
3.Provides that where the action is filed in the county of the
victim's residence and there is no other basis for filing in
that jurisdiction, the court shall determine whether that
county, and not the county where the crime occurred or the
image was used for an illegal purpose, is the proper place for
trial. The court shall consider the rights of the parties,
the access of the parties to evidence, witness convenience and
the interests of justice.
4.Provides that an image distributed so as to violate the ban on
nonconsensual distribution of intimate body parts or sexual
activity shall be subject to court-ordered forfeiture and
destruction.
5.Provides that a computer or telecommunications device used in
the crime of nonconsensual distribution of an image of an
intimate body part or sexual conduct is subject to forfeiture.
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The property shall be given to the holder of a security
interest, to the victim for restitution and "compensatory
damages," to the prosecuting agency, specified governmental
entities or charitable organizations. The property may be
sold and the proceeds distributed in a manner similar or
equivalent to distribution of the actual property.
6.Authorizes issuance of a warrant for any item that tends to
show that non-consensual distribution of another person's
intimate body part or sexual activity has occurred or is
occurring.
NOTE: See the Senate Public Safety Committee analysis for a
detailed background of the bill.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 5/16/14)
California Partnership to End Domestic Violence
California Police Chiefs Association
California State Sheriffs' Association
Citizens for Law and Order
Crime Victims Action Alliance
Crime Victims United of California
OPPOSITION : (Verified 5/16/14)
American Civil Liberties Union
ARGUMENTS IN SUPPORT : The Citizen's for Law and Order states:
"SB 1255 is an important tool in supporting public safety as it
provides that a person who intentionally distributes an image of
an intimate body part or parts of another identifiable person or
an image of the person depicted engaging in specified sexual
acts, under circumstances in which the persons agree or
understand that the image remain private, the person
distributing the image knows or should know that distribution of
the image will cause serious emotional distress, and the person
depicted suffers that distress, is guilty of disorderly conduct.
It has been highly publicized the emotional pain and suffering
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as well as the potential for physical harm when a person
exploits another by distributing images not meant for public
display."
ARGUMENTS IN OPPOSITION : The American Civil Liberties Union
of California states:
"This bill greatly expands the new crime enacted just last year
and in effect for only four months regarding distribution of
nude images. That statute balanced the legitimate privacy
interest and free speech rights implicated in these cases.
Existing law includes the four key elements necessary to
criminalize this activity; it requires that the defendant had
malicious intent, that his/her action caused actual harm; that
he/she acted knowingly without consent; and that the victim had
an expectation of privacy."
JG:e 5/19/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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