BILL REQ. #:  Z-0949.1 

Prefiled 12/07/09. Read first time 01/11/10.   Referred to Committee on Public Safety & Emergency Preparedness.

     AN ACT Relating to protecting children from sexual exploitation and abuse; amending RCW 9.68A.110, 9.68A.011, 9.68A.050, 9.68A.060, and 9.68A.070; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   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 trading 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. 2d 916 (2009), and other recent case law, that each individual item of "visual or printed matter" constitutes a separate violation for purposes of determining the unit of prosecution under the statutes governing possession of and trading in depictions of a minor engaged in sexually explicit conduct.

Sec. 2   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, 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.
     (5) In a prosecution under RCW 9.68A.050, 9.68A.060, or 9.68A.070, the state is not required to establish the identity of the alleged victim.

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) 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) "Possession" and "possesses," in addition to their usual meanings, also mean intentionally viewing over the internet a visual depiction or a copy thereof of a depiction of a minor engaged in sexually explicit conduct. "Intentionally viewing" requires a pattern of viewing visual depictions of a minor engaged in sexually explicit conduct. For purposes of determining whether a person engaged in a pattern of conduct of intentionally viewing over the internet visual depictions or copies thereof of a minor engaged in sexually explicit conduct, the trier of fact shall consider the title, text, and content of the visual depiction, as well as the internet history, search terms, thumbnail images, downloading activity, expert computer forensic testimony, number of depictions of minors engaged in sexually explicit conduct, defendant's access to and control over the electronic device and its contents upon which the depictions were found, or any other relevant evidence.
     (3) "Visual or printed matter" means ((any)) a 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)) 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 purposes of this subsection (4)(e), it is not necessary that the minor know that he or she is participating in the described conduct, or any aspect of it;
     (f) Defecation or urination for the purpose of sexual stimulation of the viewer; 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) 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; or
     (2) Possesses with intent to develop, duplicate, publish, print, disseminate, exchange, or sell ((any)) a visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct
is guilty of a class C felony punishable under chapter 9A.20 RCW.

Sec. 5   RCW 9.68A.060 and 1989 c 32 s 4 are each amended to read as follows:
     A person who 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 is guilty of a class C felony punishable under chapter 9A.20 RCW.

Sec. 6   RCW 9.68A.070 and 2006 c 139 s 3 are each amended to read as follows:
     A person who knowingly possesses a visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class B felony.