BILL REQ. #: S-4697.1
| State of Washington | 61st Legislature | 2010 Regular Session |
READ FIRST TIME 02/05/10.
AN ACT Relating to viewing sexually explicit depictions of minors on the internet; amending RCW 9.68.001, 9.68A.110, 9.68A.011, 9.68A.050, 9.68A.060, and 9.68A.070; reenacting and amending RCW 9.94A.515; adding a new section to chapter 9.68A RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
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 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.3d 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.
Furthermore, it is the intent of the legislature to set a different
unit of prosecution for the new crime 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.
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.
(6) In a prosecution under RCW 9.68A.070 and section 7 of this act,
it shall be an affirmative defense that:
(a) The defendant was employed or enrolled 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. 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 a sequential and 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)) 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 the 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.
(3) For the purposes of this section, each depiction or image 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 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.
(2) For the purposes of this section, each depiction or image 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 person who knowingly possesses a visual or printed matter
depicting a minor engaged in sexually explicit conduct is guilty of a
class B felony.
(2) For the purposes of this section, each depiction or image 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
is guilty of a class B felony. 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, 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.
(2) 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 9.94A.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 | ||