Chapter 04-612

2004 -- S 3215 SUBSTITUTE A

Enacted 08/11/04

A N A C T

RELATING TO CRIMINAL OFFENSES -- CHILDREN

Introduced By: Senators Polisena, Damiani, Raptakis, and Tassoni

Date Introduced: June 22, 2004

It is enacted by the General Assembly as follows:

 SECTION 1. Chapter 11-37 of the General Laws entitled "Sexual Assault" is hereby

amended by adding thereto the following sections:

11-37-8.8. Indecent solicitation of a child. – (a) A person is guilty of indecent

solicitation of a child if he or she knowingly solicits another person under eighteen (18) years of

age or one whom he or she believes is a person under eighteen (18) years of age for the purpose

of engaging in an act of prostitution or in any act in violation of chapter 9, 34, or 37 of title 11.

(b) As used in this section, the word “solicit” or “solicitation” means to command,

authorize, urge, incite, request, or advise another to perform an act by any means including, but

not limited to, in person, over the phone, in writing, by computer, through the Internet, or by

advertisement of any kind.

11-37-8.9. Penalty for indecent solicitation of a child. – Every person who shall

commit indecent solicitation of a child shall be imprisoned for not less than five (5) years.

     SECTION 2. Sections 11-9-1.3 and 11-9-9 of the General Laws in Chapter 11-9 entitled

"Children" are hereby amended to read as follows:

11-9-1.3. Child pornography prohibited. -- (a) Violations. - It is a violation of this

section for any person to:

      (1) Knowingly produce any child pornography;

      (2) Knowingly mail, transport, deliver or transfer by any means, including by computer,

any child pornography;

      (3) Knowingly reproduce any child pornography by any means, including the computer;

or

      (4) Knowingly possess any book, magazine, periodical, film, videotape, computer disk,

computer file or any other material that contains an image of child pornography.

      (b) Penalties.

      (1) Whoever violates or attempts or conspires to violate subdivisions (a)(1), (a)(2) or

(a)(3) of this section shall be subject to a fine of not more than five thousand dollars ($5,000), or

imprisoned for not more than fifteen (15) years, or both.

      (2) Whoever violates or attempts or conspires to violate subdivision (a)(4) of this section

shall be subject to a fine of not more than five thousand dollars ($5,000), or imprisoned not more

than five (5) years, or both.

      (c) Definitions. - For purposes of this section:

      (1) "Child pornography" means any visual depiction including any photograph, film,

video, picture or computer or computer-generated image or picture, whether made or produced by

electronic, mechanical or other means of sexually explicit conduct where:

(i) The production of the visual depiction involves the use of a minor engaging in

sexually explicit conduct;

(ii) The visual depiction is, or appears to be, of a minor engaging in sexually explicit

conduct; or

(iii) The visual depiction is advertised, promoted, presented, described or distributed in

such a manner that conveys the impression that the material is or contains a visual depiction of a

minor engaging in sexually explicit conduct; means any visual depiction, including any

photograph, film, video, picture, or computer or computer-generated image or picture, whether

made or produced by electronic, mechanical, or other means, of sexually explicit conduct where:

(i)_The production of such visual depiction involves the use of a minor engaging in

sexually explicit conduct;

(ii)_ Such visual depiction is a digital image, computer image, or computer-generated

image of a minor engaging in sexually explicit conduct; or

(iii) Such visual depiction has been created, adapted, or modified to display an

identifiable minor engaging in sexually explicit conduct.

      (2) "Computer" has the meaning given to that term in section 11-52-1;

      (3) "Minor" means any person not having reached eighteen (18) years of age;

(4) “Identifiable minor.”

(A) means a person:

(i)(I) who was a minor at the time the visual depiction was created, adapted, or modified;

or

(II) whose image as a minor was used in creating, adapting, or modifying the visual

depiction; and

(ii) who is recognizable as an actual person by the person’s face, likeness, or other

distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

(B) shall not be construed to require proof of the actual identity of the identifiable minor.

(4)(5) "Producing" means producing, directing, manufacturing, issuing, publishing or

advertising;

(5)(6) "Sexually explicit conduct" means actual or simulated:

      (i) Sexual Graphic sexual intercourse, including genital-genital, oral-genital, anal-

genital, or oral-anal, whether between persons of the same or opposite sex or lascivious sexual

intercourse where the genitals, or pubic area of any person is exhibited;

      (ii) Bestiality;

      (iii) Masturbation;

      (iv) Sadistic or masochistic abuse; or

      (v) Lascivious Graphic or lascivious exhibition of the genitals or pubic area of any

person;

(6)(7) "Visual depiction" includes undeveloped film and videotape and data stored on a

computer disk or by electronic means, which is capable of conversion into a visual image.;

(8) “Graphic,” when used with respect to a depiction of sexually explicit conduct, means

that a viewer can observe any part of the genitals or pubic area of any depicted person or animal

during any part of the time that the sexually explicit conduct is being depicted.

      (d) Affirmative defenses.

      (1) It shall be an affirmative defense to a charge of violating subdivision (a)(1), (a)(2), or

(a)(3) of this section that:

      (i) The alleged child pornography was produced using an actual person or persons

engaging in sexually explicit conduct; and

      (ii) Each such person was an adult at the time the material was produced; and

      (iii) The defendant did not advertise, promote, present, describe or distribute the material

in such a manner as to convey the impression that it is or contains a visual depiction of a minor

engaging in sexually explicit conduct.

      (2) It shall be an affirmative defense to a charge of violating subdivision (a)(4) of this

section that the defendant:

      (i) Possessed less than three (3) images of child pornography; and

      (ii) Promptly and in good faith and without retaining or allowing any person, other than a

law enforcement agency, to access any image or copy of it:

      (A) Took reasonable steps to destroy each such image; or

      (B) Reported the matter to a law enforcement agency and afforded that agency access to

each such image.

      (e) Severability. - If any provision or provisions of this section, or the application of this

section to any person or circumstance is held invalid by a court of competent authority, that

invalidity does not affect other provisions or applications of this section which can be given effect

without that invalid provision or provisions or application of the provision or provisions, and to

this end the provisions of this section are declared to be separable and severable.

11-9-9. Powers of family court. -- Where in sections 11-9-1 -- 11-9-8 any authority is

vested in any court, the authority vested in the court or courts mentioned is transferred to the

family court. The family court shall have exclusive original jurisdiction over any and all

complaints and offenses set forth in sections 11-9-1 -- 11-9-8, 11-9-12, 11-9-14, and 11-9-15, and

shall have the authority to impose sentence as set forth in chapter 1 of title 14. Notwithstanding

the provisions of this section, jurisdiction for violations of sections 11-9-1, 11-9-1.1, 11-9-1.2 and

11-9-1.3 shall be vested in the superior court.

     SECTION 3. This act shall take effect upon passage.

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LC03730/SUB A

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