ESHB 2424 -
By Committee on Judiciary
ADOPTED AND ENGROSSED 03/04/2010
Strike everything after the enacting clause and insert the following:
"Sec. 1 RCW 9.68A.001 and 2007 c 368 s 1 are each amended to read
as follows:
The legislature finds that the prevention of sexual exploitation
and abuse of children constitutes a government objective of surpassing
importance. The care of children is a sacred trust and should not be
abused by those who seek commercial gain or personal gratification
based on the exploitation of children.
The legislature further finds that the protection of children from
sexual exploitation can be accomplished without infringing on a
constitutionally protected activity. The definition of "sexually
explicit conduct" and other operative definitions demarcate a line
between protected and prohibited conduct and should not inhibit
legitimate scientific, medical, or educational activities.
The legislature further finds that children engaged in sexual
conduct for financial compensation are frequently the victims of sexual
abuse. Approximately eighty to ninety percent of children engaged in
sexual activity for financial compensation have a history of sexual
abuse victimization. It is the intent of the legislature to encourage
these children to engage in prevention and intervention services and to
hold those who pay to engage in the sexual abuse of children
accountable for the trauma they inflict on children.
The legislature further finds that due to the changing nature of
technology, offenders are now able to access child pornography in
different ways and in increasing quantities. By amending current
statutes governing depictions of a minor engaged in sexually explicit
conduct, it is the intent of the legislature to ensure that intentional
viewing of and dealing in child pornography over the internet is
subject to a criminal penalty without limiting the scope of existing
prohibitions on the possession of or dealing in child pornography,
including the possession of electronic depictions of a minor engaged in
sexually explicit conduct. It is also the intent of the legislature to
clarify, in response to State v. Sutherby, 204 P.3d 916 (2009), the
unit of prosecution for the statutes governing possession of and
dealing in depictions of a minor engaged in sexually explicit conduct.
It is the intent of the legislature that the first degree offenses
under RCW 9.68A.050, 9.68A.060, and 9.68A.070 have a per depiction or
image unit of prosecution, while the second degree offenses under RCW
9.68A.050, 9.68A.060, and 9.68A.070 have a per incident unit of
prosecution as established in State v. Sutherby, 204 P.3d 916 (2009).
Furthermore, it is the intent of the legislature to set a different
unit of prosecution for the new offense of viewing of depictions of a
minor engaged in sexually explicit conduct such that each separate
session of intentionally viewing over the internet of visual depictions
or images of a minor engaged in sexually explicit conduct constitutes
a separate offense.
NEW SECTION. Sec. 2 A new section is added to chapter 9.68A RCW
to read as follows:
This chapter does not apply to lawful conduct between spouses.
Sec. 3 RCW 9.68A.011 and 2002 c 70 s 1 are each amended to read
as follows:
Unless the context clearly indicates otherwise, the definitions in
this section apply throughout this chapter.
(1) An "internet session" means a period of time during which an
internet user, using a specific internet protocol address, visits or is
logged into an internet site for an uninterrupted period of time.
(2) To "photograph" means to make a print, negative, slide, digital
image, motion picture, or videotape. A "photograph" means anything
tangible or intangible produced by photographing.
(((2))) (3) "Visual or printed matter" means any photograph or
other material that contains a reproduction of a photograph.
(((3))) (4) "Sexually explicit conduct" means actual or simulated:
(a) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals;
(b) Penetration of the vagina or rectum by any object;
(c) Masturbation;
(d) Sadomasochistic abuse ((for the purpose of sexual stimulation
of the viewer));
(e) ((Exhibition of the genitals or unclothed pubic or rectal areas
of any minor, or the unclothed breast of a female minor, for the
purpose of sexual stimulation of the viewer;)) Defecation or urination for the purpose of sexual stimulation
of the viewer;
(f)
(f) Depiction of the genitals or unclothed pubic or rectal areas of
any minor, or the unclothed breast of a female minor, for the purpose
of sexual stimulation of the viewer. For the purposes of this
subsection (4)(f), it is not necessary that the minor know that he or
she is participating in the described conduct, or any aspect of it; and
(g) Touching of a person's clothed or unclothed genitals, pubic
area, buttocks, or breast area for the purpose of sexual stimulation of
the viewer.
(((4))) (5) "Minor" means any person under eighteen years of age.
(((5))) (6) "Live performance" means any play, show, skit, dance,
or other exhibition performed or presented to or before an audience of
one or more, with or without consideration.
Sec. 4 RCW 9.68A.050 and 1989 c 32 s 3 are each amended to read
as follows:
((A person who:))
(1)(a) A person commits the crime of dealing in depictions of a
minor engaged in sexually explicit conduct in the first degree when he
or she:
(i) Knowingly develops, duplicates, publishes, prints,
disseminates, exchanges, finances, attempts to finance, or sells
((any)) a visual or printed matter that depicts a minor engaged in an
act of sexually explicit conduct as defined in RCW 9.68A.011(4) (a)
through (e); or
(((2))) (ii) Possesses with intent to develop, duplicate, publish,
print, disseminate, exchange, or sell any visual or printed matter that
depicts a minor engaged in an act of sexually explicit conduct as
defined in RCW 9.68A.011(4) (a) through (e).
(b) Dealing in depictions of a minor engaged in sexually explicit
conduct in the first degree is ((guilty of)) a class ((C)) B felony
punishable under chapter 9A.20 RCW.
(c) For the purposes of determining the unit of prosecution under
this subsection, each depiction or image of visual or printed matter
constitutes a separate offense.
(2)(a) A person commits the crime of dealing in depictions of a
minor engaged in sexually explicit conduct in the second degree when he
or she:
(i) Knowingly develops, duplicates, publishes, prints,
disseminates, exchanges, finances, attempts to finance, or sells any
visual or printed matter that depicts a minor engaged in an act of
sexually explicit conduct as defined in RCW 9.68A.011(4) (f) or (g); or
(ii) Possesses with intent to develop, duplicate, publish, print,
disseminate, exchange, or sell any visual or printed matter that
depicts a minor engaged in an act of sexually explicit conduct as
defined in RCW 9.68A.011(4) (f) or (g).
(b) Dealing in depictions of a minor engaged in sexually explicit
conduct in the second degree is a class C felony punishable under
chapter 9A.20 RCW.
(c) For the purposes of determining the unit of prosecution under
this subsection, each incident of dealing in one or more depictions or
images of visual or printed matter constitutes a separate offense.
Sec. 5 RCW 9.68A.060 and 1989 c 32 s 4 are each amended to read
as follows:
(1)(a) A person ((who)) commits the crime of sending or bringing
into the state depictions of a minor engaged in sexually explicit
conduct in the first degree when he or she knowingly sends or causes to
be sent, or brings or causes to be brought, into this state for sale or
distribution, ((any)) a visual or printed matter that depicts a minor
engaged in sexually explicit conduct as defined in RCW 9.68A.011(4) (a)
through (e).
(b) Sending or bringing into the state depictions of a minor
engaged in sexually explicit conduct in the first degree is ((guilty
of)) a class ((C)) B felony punishable under chapter 9A.20 RCW.
(c) For the purposes of determining the unit of prosecution under
this subsection, each depiction or image of visual or printed matter
constitutes a separate offense.
(2)(a) A person commits the crime of sending or bringing into the
state depictions of a minor engaged in sexually explicit conduct in the
second degree when he or she knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, any visual or printed matter that depicts a minor engaged
in sexually explicit conduct as defined in RCW 9.68A.011(4) (f) or (g).
(b) Sending or bringing into the state depictions of a minor
engaged in sexually explicit conduct in the second degree is a class C
felony punishable under chapter 9A.20 RCW.
(c) For the purposes of determining the unit of prosecution under
this subsection, each incident of sending or bringing into the state
one or more depictions or images of visual or printed matter
constitutes a separate offense.
Sec. 6 RCW 9.68A.070 and 2006 c 139 s 3 are each amended to read
as follows:
(1)(a) A person ((who)) commits the crime of possession of
depictions of a minor engaged in sexually explicit conduct in the first
degree when he or she knowingly possesses a visual or printed matter
depicting a minor engaged in sexually explicit conduct as defined in
RCW 9.68A.011(4) (a) through (e).
(b) Possession of depictions of a minor engaged in sexually
explicit conduct in the first degree is ((guilty of)) a class B felony
punishable under chapter 9A.20 RCW.
(c) For the purposes of determining the unit of prosecution under
this subsection, each depiction or image of visual or printed matter
constitutes a separate offense.
(2)(a) A person commits the crime of possession of depictions of a
minor engaged in sexually explicit conduct in the second degree when he
or she knowingly possesses any visual or printed matter depicting a
minor engaged in sexually explicit conduct as defined in RCW
9.68A.011(4) (f) or (g).
(b) Possession of depictions of a minor engaged in sexually
explicit conduct in the second degree is a class C felony punishable
under chapter 9A.20 RCW.
(c) For the purposes of determining the unit of prosecution under
this subsection, each incident of possession of one or more depictions
or images of visual or printed matter constitutes a separate offense.
NEW SECTION. Sec. 7 A new section is added to chapter 9.68A RCW
to read as follows:
(1) A person who intentionally views over the internet visual or
printed matter depicting a minor engaged in sexually explicit conduct
as defined in RCW 9.68A.011(4) (a) through (e) is guilty of viewing
depictions of a minor engaged in sexually explicit conduct in the first
degree, a class B felony punishable under chapter 9A.20 RCW.
(2) A person who intentionally views over the internet visual or
printed matter depicting a minor engaged in sexually explicit conduct
as defined in RCW 9.68A.011(4) (f) or (g) is guilty of viewing
depictions of a minor engaged in sexually explicit conduct in the
second degree, a class C felony punishable under chapter 9A.20 RCW.
(3) For the purposes of determining whether a person intentionally
viewed over the internet a visual or printed matter depicting a minor
engaged in sexually explicit conduct in subsection (1) or (2) of this
section, the trier of fact shall consider the title, text, and content
of the visual or printed matter, as well as the internet history,
search terms, thumbnail images, downloading activity, expert computer
forensic testimony, number of visual or printed matter depicting minors
engaged in sexually explicit conduct, defendant's access to and control
over the electronic device and its contents upon which the visual or
printed matter was found, or any other relevant evidence. The state
must prove beyond a reasonable doubt that the viewing was initiated by
the user of the computer where the viewing occurred.
(4) For the purposes of this section, each separate internet
session of intentionally viewing over the internet visual or printed
matter depicting a minor engaged in sexually explicit conduct
constitutes a separate offense.
Sec. 8 RCW 9.68A.110 and 2007 c 368 s 3 are each amended to read
as follows:
(1) In a prosecution under RCW 9.68A.040, it is not a defense that
the defendant was involved in activities of law enforcement and
prosecution agencies in the investigation and prosecution of criminal
offenses. Law enforcement and prosecution agencies shall not employ
minors to aid in the investigation of a violation of RCW 9.68A.090 or
9.68A.100. ((This chapter does not apply to lawful conduct between
spouses.))
(2) In a prosecution under RCW 9.68A.050, 9.68A.060, 9.68A.070, or
9.68A.080, it is not a defense that the defendant did not know the age
of the child depicted in the visual or printed matter: PROVIDED, That
it is a defense, which the defendant must prove by a preponderance of
the evidence, that at the time of the offense the defendant was not in
possession of any facts on the basis of which he or she should
reasonably have known that the person depicted was a minor.
(3) In a prosecution under RCW 9.68A.040, 9.68A.090, 9.68A.101, or
9.68A.102, it is not a defense that the defendant did not know the
alleged victim's age: PROVIDED, That it is a defense, which the
defendant must prove by a preponderance of the evidence, that at the
time of the offense, the defendant made a reasonable bona fide attempt
to ascertain the true age of the minor by requiring production of a
driver's license, marriage license, birth certificate, or other
governmental or educational identification card or paper and did not
rely solely on the oral allegations or apparent age of the minor.
(4) In a prosecution under RCW 9.68A.050, 9.68A.060, ((or))
9.68A.070, or section 7 of this act, it shall be an affirmative defense
that the defendant was a law enforcement officer or a person
specifically authorized, in writing, to assist a law enforcement
officer and acting at the direction of a law enforcement officer in the
process of conducting an official investigation of a sex-related crime
against a minor, or that the defendant was providing individual case
treatment as a recognized medical facility or as a psychiatrist or
psychologist licensed under Title 18 RCW. Nothing in this act is
intended to in any way affect or diminish the immunity afforded an
electronic communication service provider, remote computing service
provider, or domain name registrar acting in the performance of its
reporting or preservation responsibilities under 18 U.S.C. Secs. 2258a,
2258b, or 2258c.
(5) In a prosecution under RCW 9.68A.050, 9.68A.060, ((or))
9.68A.070, or section 7 of this act, the state is not required to
establish the identity of the alleged victim.
(6) In a prosecution under RCW 9.68A.070 or section 7 of this act,
it shall be an affirmative defense that:
(a) The defendant was employed at or conducting research in
partnership or in cooperation with any institution of higher education
as defined in RCW 28B.07.020 or 28B.10.016, and:
(i) He or she was engaged in a research activity;
(ii) The research activity was specifically approved prior to the
possession or viewing activity being conducted in writing by a person,
or other such entity vested with the authority to grant such approval
by the institution of higher learning; and
(iii) Viewing or possessing the visual or printed matter is an
essential component of the authorized research; or
(b) The defendant was an employee of the Washington state
legislature engaged in research at the request of a member of the
legislature and:
(i) The request for research is made prior to the possession or
viewing activity being conducted in writing by a member of the
legislature;
(ii) The research is directly related to a legislative activity;
and
(iii) Viewing or possessing the visual or printed matter is an
essential component of the requested research and legislative activity.
(c) Nothing in this section authorizes otherwise unlawful viewing
or possession of visual or printed matter depicting a minor engaged in
sexually explicit conduct.
Sec. 9 RCW 9.94A.515 and 2008 c 108 s 23 and 2008 c 38 s 1 are
each reenacted and amended to read as follows:
| TABLE 2 | ||
| CRIMES INCLUDED WITHIN EACH SERIOUSNESS LEVEL | ||
| XVI | ||
| XV | ||
| XIV | ||
| XIII | ||
| XII | ||
| XI | ||
| X | ||
| Criminal Mistreatment 1 (RCW 9A.42.020) | ||
| IX | ||
| VIII | ||
| VII | ||
| VI | ||
| V | ||
| IV | ||
| III | ||
| Escape 2 (RCW 9A.76.120) | ||
| II | ||
| I | ||
Sec. 10 RCW 9.94A.535 and 2008 c 276 s 303 and 2008 c 233 s 9 are
each reenacted and amended to read as follows:
The court may impose a sentence outside the standard sentence range
for an offense if it finds, considering the purpose of this chapter,
that there are substantial and compelling reasons justifying an
exceptional sentence. Facts supporting aggravated sentences, other
than the fact of a prior conviction, shall be determined pursuant to
the provisions of RCW 9.94A.537.
Whenever a sentence outside the standard sentence range is imposed,
the court shall set forth the reasons for its decision in written
findings of fact and conclusions of law. A sentence outside the
standard sentence range shall be a determinate sentence.
If the sentencing court finds that an exceptional sentence outside
the standard sentence range should be imposed, the sentence is subject
to review only as provided for in RCW 9.94A.585(4).
A departure from the standards in RCW 9.94A.589 (1) and (2)
governing whether sentences are to be served consecutively or
concurrently is an exceptional sentence subject to the limitations in
this section, and may be appealed by the offender or the state as set
forth in RCW 9.94A.585 (2) through (6).
(1) Mitigating Circumstances - Court to Consider
The court may impose an exceptional sentence below the standard
range if it finds that mitigating circumstances are established by a
preponderance of the evidence. The following are illustrative only and
are not intended to be exclusive reasons for exceptional sentences.
(a) To a significant degree, the victim was an initiator, willing
participant, aggressor, or provoker of the incident.
(b) Before detection, the defendant compensated, or made a good
faith effort to compensate, the victim of the criminal conduct for any
damage or injury sustained.
(c) The defendant committed the crime under duress, coercion,
threat, or compulsion insufficient to constitute a complete defense but
which significantly affected his or her conduct.
(d) The defendant, with no apparent predisposition to do so, was
induced by others to participate in the crime.
(e) The defendant's capacity to appreciate the wrongfulness of his
or her conduct, or to conform his or her conduct to the requirements of
the law, was significantly impaired. Voluntary use of drugs or alcohol
is excluded.
(f) The offense was principally accomplished by another person and
the defendant manifested extreme caution or sincere concern for the
safety or well-being of the victim.
(g) The operation of the multiple offense policy of RCW 9.94A.589
results in a presumptive sentence that is clearly excessive in light of
the purpose of this chapter, as expressed in RCW 9.94A.010.
(h) The defendant or the defendant's children suffered a continuing
pattern of physical or sexual abuse by the victim of the offense and
the offense is a response to that abuse.
(2) Aggravating Circumstances - Considered and Imposed by the Court
The trial court may impose an aggravated exceptional sentence
without a finding of fact by a jury under the following circumstances:
(a) The defendant and the state both stipulate that justice is best
served by the imposition of an exceptional sentence outside the
standard range, and the court finds the exceptional sentence to be
consistent with and in furtherance of the interests of justice and the
purposes of the sentencing reform act.
(b) The defendant's prior unscored misdemeanor or prior unscored
foreign criminal history results in a presumptive sentence that is
clearly too lenient in light of the purpose of this chapter, as
expressed in RCW 9.94A.010.
(c) The defendant has committed multiple current offenses and the
defendant's high offender score results in some of the current offenses
going unpunished.
(d) The failure to consider the defendant's prior criminal history
which was omitted from the offender score calculation pursuant to RCW
9.94A.525 results in a presumptive sentence that is clearly too
lenient.
(3) Aggravating Circumstances - Considered by a Jury -Imposed by
the Court
Except for circumstances listed in subsection (2) of this section,
the following circumstances are an exclusive list of factors that can
support a sentence above the standard range. Such facts should be
determined by procedures specified in RCW 9.94A.537.
(a) The defendant's conduct during the commission of the current
offense manifested deliberate cruelty to the victim.
(b) The defendant knew or should have known that the victim of the
current offense was particularly vulnerable or incapable of resistance.
(c) The current offense was a violent offense, and the defendant
knew that the victim of the current offense was pregnant.
(d) The current offense was a major economic offense or series of
offenses, so identified by a consideration of any of the following
factors:
(i) The current offense involved multiple victims or multiple
incidents per victim;
(ii) The current offense involved attempted or actual monetary loss
substantially greater than typical for the offense;
(iii) The current offense involved a high degree of sophistication
or planning or occurred over a lengthy period of time; or
(iv) The defendant used his or her position of trust, confidence,
or fiduciary responsibility to facilitate the commission of the current
offense.
(e) The current offense was a major violation of the Uniform
Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to
trafficking in controlled substances, which was more onerous than the
typical offense of its statutory definition: The presence of ANY of
the following may identify a current offense as a major VUCSA:
(i) The current offense involved at least three separate
transactions in which controlled substances were sold, transferred, or
possessed with intent to do so;
(ii) The current offense involved an attempted or actual sale or
transfer of controlled substances in quantities substantially larger
than for personal use;
(iii) The current offense involved the manufacture of controlled
substances for use by other parties;
(iv) The circumstances of the current offense reveal the offender
to have occupied a high position in the drug distribution hierarchy;
(v) The current offense involved a high degree of sophistication or
planning, occurred over a lengthy period of time, or involved a broad
geographic area of disbursement; or
(vi) The offender used his or her position or status to facilitate
the commission of the current offense, including positions of trust,
confidence or fiduciary responsibility (e.g., pharmacist, physician, or
other medical professional).
(f) The current offense included a finding of sexual motivation
pursuant to RCW 9.94A.835.
(g) The offense was part of an ongoing pattern of sexual abuse of
the same victim under the age of eighteen years manifested by multiple
incidents over a prolonged period of time.
(h) The current offense involved domestic violence, as defined in
RCW 10.99.020, and one or more of the following was present:
(i) The offense was part of an ongoing pattern of psychological,
physical, or sexual abuse of the victim manifested by multiple
incidents over a prolonged period of time;
(ii) The offense occurred within sight or sound of the victim's or
the offender's minor children under the age of eighteen years; or
(iii) The offender's conduct during the commission of the current
offense manifested deliberate cruelty or intimidation of the victim.
(i) The offense resulted in the pregnancy of a child victim of
rape.
(j) The defendant knew that the victim of the current offense was
a youth who was not residing with a legal custodian and the defendant
established or promoted the relationship for the primary purpose of
victimization.
(k) The offense was committed with the intent to obstruct or impair
human or animal health care or agricultural or forestry research or
commercial production.
(l) The current offense is trafficking in the first degree or
trafficking in the second degree and any victim was a minor at the time
of the offense.
(m) The offense involved a high degree of sophistication or
planning.
(n) The defendant used his or her position of trust, confidence, or
fiduciary responsibility to facilitate the commission of the current
offense.
(o) The defendant committed a current sex offense, has a history of
sex offenses, and is not amenable to treatment.
(p) The offense involved an invasion of the victim's privacy.
(q) The defendant demonstrated or displayed an egregious lack of
remorse.
(r) The offense involved a destructive and foreseeable impact on
persons other than the victim.
(s) The defendant committed the offense to obtain or maintain his
or her membership or to advance his or her position in the hierarchy of
an organization, association, or identifiable group.
(t) The defendant committed the current offense shortly after being
released from incarceration.
(u) The current offense is a burglary and the victim of the
burglary was present in the building or residence when the crime was
committed.
(v) The offense was committed against a law enforcement officer who
was performing his or her official duties at the time of the offense,
the offender knew that the victim was a law enforcement officer, and
the victim's status as a law enforcement officer is not an element of
the offense.
(w) The defendant committed the offense against a victim who was
acting as a good samaritan.
(x) The defendant committed the offense against a public official
or officer of the court in retaliation of the public official's
performance of his or her duty to the criminal justice system.
(y) The victim's injuries substantially exceed the level of bodily
harm necessary to satisfy the elements of the offense. This aggravator
is not an exception to RCW 9.94A.530(2).
(z)(i)(A) The current offense is theft in the first degree, theft
in the second degree, possession of stolen property in the first
degree, or possession of stolen property in the second degree; (B) the
stolen property involved is metal property; and (C) the property damage
to the victim caused in the course of the theft of metal property is
more than three times the value of the stolen metal property, or the
theft of the metal property creates a public hazard.
(ii) For purposes of this subsection, "metal property" means
commercial metal property, private metal property, or nonferrous metal
property, as defined in RCW 19.290.010.
(aa) The defendant committed the offense with the intent to
directly or indirectly cause any benefit, aggrandizement, gain, profit,
or other advantage to or for a criminal street gang as defined in RCW
9.94A.030, its reputation, influence, or membership.
(bb) The current offense involved paying to view, over the internet
in violation of section 7 of this act, depictions of a minor engaged in
an act of sexually explicit conduct as defined in RCW 9.68A.011(4) (a)
through (g)."
ESHB 2424 -
By Committee on Judiciary
ADOPTED AND ENGROSSED 03/04/2010
On page 1, line 2 of the title, after "abuse;" strike the remainder of the title and insert "amending RCW 9.68A.001, 9.68A.011, 9.68A.050, 9.68A.060, 9.68A.070, and 9.68A.110; reenacting and amending RCW 9.94A.515 and 9.94A.535; adding new sections to chapter 9.68A RCW; and prescribing penalties."