BILL REQ. #:  Z-0812.1 

Prefiled 01/09/08. Read first time 01/14/08.   Referred to Committee on Public Safety & Emergency Preparedness.

     AN ACT Relating to creating the crime of viewing depictions of minors engaged in sexually explicit conduct; amending RCW 9.68A.110; adding a new section to chapter 9.68A RCW; and prescribing penalties.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 9.68A RCW to read as follows:
     (1) A person who knowingly views over the internet any visual depiction or copy thereof of a minor engaged in sexually explicit conduct is guilty of a class C felony.
     (2) In a prosecution under this section, 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, 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, in determining whether a person knowingly viewed the material.
     (3) It shall be an affirmative defense to a charge under this section that the defendant promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof, reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

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, or section 1 of this act, 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 1 of this act, it shall be an affirmative defense that the defendant was 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, or section 1 of this act, the state is not required to establish the identity of the alleged victim.