BILL REQ. #:  S-3196.1 

Read first time 12/09/11.   Referred to Committee on Judiciary.

     AN ACT Relating to restricting access to evidence in prosecutions of sexual exploitation of children; amending RCW 9.68A.001; adding a new section to chapter 9.68A RCW; and declaring an emergency.

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

Sec. 1   RCW 9.68A.001 and 2010 c 227 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.
     In response to State v. Boyd, 158 P.3d 54 (2007) it is further the intent of the legislature to place reasonable limitations on the possession and viewing of evidence by a pro se defendant or the defense in a case prosecuted under this chapter consistent with the United States Constitution and the Washington state Constitution to avoid dissemination of such material and potential revictimization of the children exploited in these crimes.

NEW SECTION.  Sec. 2   A new section is added to chapter 9.68A RCW to read as follows:
     (1) In any criminal proceeding, any property or material that constitutes visual or printed matter that depicts a minor engaged in sexually explicit conduct shall remain in the care, custody, and control of either the law enforcement agency seizing the material or the court.
     (2)(a) Notwithstanding superior court criminal rule (CrR) 4.7, a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes visual or printed matter that depicts a minor engaged in sexually explicit conduct, so long as the law enforcement agency seizing the material makes the property or material reasonably available to the defendant.
     (b) For the purposes of (a) of this subsection, property or material shall be deemed to be reasonably available to the defendant if the government provides ample opportunity for inspection, viewing, and examination at a law enforcement agency facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.

NEW SECTION.  Sec. 3   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.