SENATE BILL REPORT

SB 5183

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Background: A person is guilty of possession of depictions of a minor engaged in sexually explicit conduct if that person knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct. Possession of depictions of a minor engaged in sexually explicit conduct is a class B felony with a seriousness level of VI.In a prosecution for possession of depictions of a minor engaged in sexually explicit conduct, the state is not required to prove the identity of the victim. It is not a defense that the defendant did not know the age of the minor depicted in the visual or printed matter. The following affirmative defenses, however, are available to a defendant:

At the time of the offense, the defendant was not in possession of any facts on the basis of which that defendant should reasonably have known that the person depicted was a minor.
That the defendant was a law enforcement officer in the process of conducting an official investigation of a sex-related crime against a minor.
That the defendant was providing individual case treatment as a recognized medical facility or as a psychiatrist or psychologist.

Summary of Bill: The crime of possession of depictions of a minor engaged in sexually explicit conduct is expanded to include a second degree. A person commits this offense in the second degree if that person intentionally views over the internet any visual depiction or copy thereof of a minor engaged in sexually explicit conduct. Possession of depictions of a minor engaged in sexually explicit conduct in the second degree is an unranked class C felony.In a prosecution for viewing depictions of a minor engaged in sexually explicit conduct, the trier of fact must find a pattern of viewing the material. This is established by consideration of:

the title, text, and content of the visual depiction;

the internet history, search terms, thumbnail images, and downloading activity of the accused;

expert computer forensic testimony;

the number of depictions of minors engaged in sexually explicit conduct;

the defendant's access to and control over the electronic device and its contents upon which the depictions were found; and

any other relevant evidence.

An affirmative defense is added to include a person specifically authorized to assist a law enforcement officer in conducting an official investigation of a sex-related crime against a minor.