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AB 295 Pornography.

BILL NUMBER: AB 295 AMENDED 04/17/95

     AMENDED IN ASSEMBLY APRIL 17, 1995
     AMENDED IN ASSEMBLY MARCH 16, 1995

INTRODUCED BY Assembly Member Baldwin

FEBRUARY 7, 1995

An act to amend Sections 311, 311.3, 311.4, 311.11, 312.3, and 11166 of the
Penal Code, relating to pornography.

LEGISLATIVE COUNSEL'S DIGEST

AB 295, as amended, Baldwin. Pornography.

(1) Existing law defines the term "matter" for purposes of provisions
governing obscene matter and child pornography. A violation of these
provisions is a crime.

This bill would expand the definition of the term "matter" to include, among
other things, various types of film and computer media. Because the bill
would incorporate this expanded definition into these criminal provisions,
it would change the definitions of various crimes, thereby imposing a
state-mandated local program.

(2) The Child Abuse and Neglect Reporting Act requires a commercial film and
photographic print processor who has knowledge of or observes a film,
photograph, videotape, negative, or slide depicting a child under the age of
14 years engaged in an act of sexual conduct to report the instance of
suspected child abuse to a law enforcement agency. A violation of this
provision is a misdemeanor.

This bill would require a commercial film and photographic print processor
who has knowledge of or observes such a depiction of a child under the age
of 18 years engaged in an act of sexual conduct to make the required report.
By expanding the scope of a crime, the bill would impose a state-mandated
local program.

(3) The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a
specified reason.

(4) The bill would provide that it shall become operative only if AB 1881 of
the 1995-96 Regular Session is chaptered and becomes effective on or before
January 1, 1996.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated
local program: yes.

SECTION 1. Section 311 of the Penal Code is amended to read:

311. As used in this chapter, the following definitions apply:

(a) "Obscene matter" means matter, taken as a whole, that to the average
person, applying contemporary statewide standards, appeals to the prurient
interest, that, taken as a whole, depicts or describes sexual conduct in a
patently offensive way, and that, taken as a whole, lacks serious literary,
artistic, political, or scientific value.

(1) If it appears from the nature of the matter or the circumstances of its
dissemination, distribution, or exhibition that it is designed for clearly
defined deviant sexual groups, the appeal of the matter shall be judged with
reference to its intended recipient group.

(2) In prosecutions under this chapter, if circumstances of production,
presentation, sale, dissemination, distribution, or publicity indicate that
matter is being commercially exploited by the defendant for the sake of its
prurient appeal, this evidence is probative with respect to the nature of
the matter and may justify the conclusion that the matter lacks serious
literary, artistic, political, or scientific value.

(3) In determining whether the matter taken as a whole lacks serious
literary, artistic, political, or scientific value in description or
representation of those matters, the fact that the defendant knew that the
matter depicts persons under the age of 16 years engaged in sexual conduct,
as defined in subdivision (c) of Section 311.4, is a factor that may be
considered in making that determination.

(b) "Matter" means any book, magazine, newspaper, or other printed or
written material, or any picture, drawing, photograph, motion picture, or
other pictorial representation, or any statue or other figure, or any
recording, transcription, or mechanical, chemical, or electrical
reproduction, or any other article, equipment, machine, or material.
"Matter" also means live or recorded telephone messages if transmitted,
disseminated, or distributed as part of a commercial transaction. "Matter"
also means any representation of information, data, or image, including, but
not limited to, any film, filmstrip, photograph, negative, slide, photocopy,
videotape, video laser disc, computer hardware, computer software, computer
floppy disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image or audio representation that contains or
incorporates in any manner, any film, filmstrip, photograph, negative,
slide, photocopy, videotape, or video laser disc.

(c) "Person" means any individual, partnership, firm, association,
corporation, limited liability company, or other legal entity.

(d) "Distribute" means transfer possession of, whether with or without
consideration.

(e) "Knowingly" means being aware of the character of the matter or live
conduct.

(f) "Exhibit" means show.

(g) "Obscene live conduct" means any physical human body activity, whether
performed or engaged in alone or with other persons, including but not
limited to singing, speaking, dancing, acting, simulating, or pantomiming,
taken as a whole, that to the average person, applying contemporary
statewide standards appeals to the prurient interest and is conduct that,
taken as a whole, depicts or describes sexual conduct in a patently
offensive way and that, taken as a whole, lacks serious literary, artistic,
political, or scientific value.

(1) If it appears from the nature of the conduct or the circumstances of its
production, presentation, or exhibition that it is designed for clearly
defined deviant sexual groups, the appeal of the conduct shall be judged
with reference to its intended recipient group.

(2) In prosecutions under this chapter, if circumstances of production,
presentation, advertising, or exhibition indicate that live conduct is being
commercially exploited by the defendant for the sake of its prurient appeal,
that evidence is probative with respect to the nature of the conduct and may
justify the conclusion that the conduct lacks serious literary, artistic,
political, or scientific value.

(3) In determining whether the live conduct taken as a whole lacks serious
literary, artistic, political, or scientific value in description or
representation of those matters, the fact that the defendant knew that the
live conduct depicts persons under the age of 16 years engaged in sexual
conduct, as defined in subdivision (c) of Section 311.4, is a factor that
may be considered in making that determination.

SEC. 2. Section 311.3 of the Penal Code is amended to read:

311.3. (a) A person is guilty of sexual exploitation of a child if he or she
knowingly develops, duplicates, prints, or exchanges any matter, as defined
in subdivision (b) of Section 311, that depicts a person under the age of 18
years engaged in an act of sexual conduct.

(b) As used in this section, "sexual conduct" means any of the following:

(1) 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.

(2) Penetration of the vagina or rectum by any object.

(3) Masturbation, for the purpose of sexual stimulation of the viewer.

(4) Sadomasochistic abuse for the purpose of sexual stimulation of the
viewer.

(5) Exhibition of the genitals or pubic or rectal areas of any person for
the purpose of sexual stimulation of the viewer.

(6) Defecation or urination for the purpose of sexual stimulation of the
viewer.

(c) Subdivision (a) does not apply to the activities of law enforcement and
prosecution agencies in the investigation and prosecution of criminal
offenses or to legitimate medical, scientific, or educational activities, or
to lawful conduct between spouses.

(d) Every person who violates subdivision (a) shall be punished by a fine of
not more than two thousand dollars ($2,000) or by imprisonment in the county
jail for not more than one year, or by both that fine and imprisonment. If
the person has been previously convicted of a violation of subdivision (a)
or any section of this chapter, he or she shall be punished by imprisonment
in the state prison.

(e) The provisions of this section do not apply to an employee of a
commercial film developer who is acting within the scope of his or her
employment and in accordance with the instructions of his or her employer,
provided that the employee has no financial interest in the commercial
developer by which he or she is employed.

SEC. 3. Section 311.4 of the Penal Code is amended to read:

311.4. (a) Every person who, with knowledge that a person is a minor, or
who, while in possession of any facts on the basis of which he or she should
reasonably know that the person is a minor, hires, employs, or uses the
minor to do or assist in doing any of the acts described in Section 311.2,
is, for a first offense, guilty of a misdemeanor. If the person has
previously been convicted of any violation of this section, the court may,
in addition to the punishment authorized in Section 311.9, impose a fine not
exceeding fifty thousand dollars ($50,000).

(b) Every person who, with knowledge that a person is a minor under the age
of 18 years, or who, while in possession of any facts on the basis of which
he or she should reasonably know that the person is a minor under the age of
18 years, knowingly promotes, employs, uses, persuades, induces, or coerces
a minor under the age of 18 years, or any parent or guardian of a minor
under the age of 18 years under his or her control who knowingly permits the
minor, to engage in or assist others to engage in either posing or modeling
alone or with others for purposes of preparing any matter, as defined in
subdivision (b) of Section 311, depicting, or a live performance involving,
sexual conduct by a minor under the age of 18 years alone or with other
persons or animals, for commercial purposes, is guilty of a felony and shall
be punished by imprisonment in the state prison for three, six, or eight
years.

(c) Every person who, with knowledge that a person is a minor under the age
of 18 years, or who, while in possession of any facts on the basis of which
he or she should reasonably know that the person is a minor under the age of
18 years, knowingly promotes, employs, uses, persuades, induces, or coerces
a minor under the age of 18 years, or any parent or guardian of a minor
under the age of 18 years under his or her control who knowingly permits the
minor, to engage in or assist others to engage in either posing or modeling
alone or with others for purposes of preparing any matter, as defined in
subdivision (b) of Section 311, depicting, or a live performance involving,
sexual conduct by a minor under the age of 18 years alone or with other
persons or animals, is guilty of a felony. It is not necessary to prove
commercial purposes in order to establish a violation of this subdivision.

(d) (1) As used in subdivisions (b) and (c), "sexual conduct" means any of
the following, whether actual or simulated: sexual intercourse, oral
copulation, anal intercourse, anal oral copulation, masturbation,
bestiality, sexual sadism, sexual masochism, penetration of the vagina or
rectum by any object in a lewd or lascivious manner, exhibition of the
genitals or pubic or rectal area for the purpose of sexual stimulation of
the viewer, any lewd or lascivious sexual act as defined in Section 288, or
excretory functions performed in a lewd or lascivious manner, whether or not
any of the above conduct is performed alone or between members of the same
or opposite sex or between humans and animals. An act is simulated when it
gives the appearance of being sexual conduct.

(2) As used in subdivisions (b) and (c), "matter" means any film, filmstrip,
photograph, negative, slide, photocopy, videotape, video laser disc,
computer hardware, computer software, computer floppy disc, or any other
computer-related equipment or computer-generated image that contains or
incorporates in any manner, any film, filmstrip, photograph, negative,
slide, photocopy, videotape, or video laser disc.

(e) This section does not apply to a legally emancipated minor or to lawful
conduct between spouses if one or both are under the age of 18.

(f) In every prosecution under this section involving a minor under the age
of 14 years at the time of the offense, the age of the victim shall be pled
and proven for the purpose of the enhanced penalty provided in Section 647a.
Failure to plead and prove that the victim was under the age of 14 years at
the time of the offense is not a bar to prosecution under this section if it
is proven that the victim was under the age of 18 years at the time of the
offense.

SEC. 4. Section 311.11 of the Penal Code is amended to read:

311.11. (a) Every person who knowingly possesses or controls any matter, the
production of which involves the use of a person under the age of 18 years,
knowing that the matter depicts a person under the age of 18 years
personally engaging in or simulating sexual conduct, as defined in
subdivision (d) of Section 311.4, is guilty of a public offense and shall be
punished by imprisonment in the county jail for up to one year, or by a fine
not exceeding two thousand five hundred dollars ($2,500), or by both the
fine and imprisonment.

(b) If a person has been previously convicted of a violation of this
section, he or she is guilty of a felony and shall be punished by
imprisonment for two, four, or six years.

(c) It is not necessary to prove that the matter is obscene in order to
establish a violation of this section.

(d) This section does not apply to drawings, figurines, statues, or any film
rated by the Motion Picture Association of America, nor does it apply to
live or recorded telephone messages when transmitted, disseminated, or
distributed as part of a commercial transaction.

SEC. 5. Section 312.3 of the Penal Code is amended to read:

312.3. (a) Matter that depicts a person under the age of 18 years personally
engaging in or personally simulating sexual conduct as defined in Section
311.4 and that is in the possession of any city, county, city and county, or
state official or agency is subject to forfeiture pursuant to this section.

(b) An action to forfeit matter described in subdivision (a) may be brought
by the Attorney General, the district attorney, county counsel, or the city
attorney. Proceedings shall be initiated by a petition of forfeiture filed
in the superior court of the county in which the matter is located.

(c) The prosecuting agency shall make service of process of a notice
regarding that petition upon every individual who may have a property
interest in the alleged proceeds. The notice shall state that any interested
party may file a verified claim with the superior court stating the amount
of their claimed interest and an affirmation or denial of the prosecuting
agency' s allegation. If the notice cannot be given by registered mail or
personal delivery, the notice shall be published for at least three
successive weeks in a newspaper of general circulation in the county where
the property is located. All notices shall set forth the time within which a
claim of interest in the property seized is required to be filed.

(d) (1) Any person claiming an interest in the property or proceeds may, at
any time within 30 days from the date of the first publication of the notice
of seizure, or within 30 days after receipt of actual notice, file with the
superior court of the county in which the action is pending a verified claim
stating his or her interest in the property or proceeds. A verified copy of
the claim shall be given by the claimant to the Attorney General or district
attorney, county counsel, or city attorney, as appropriate.

(2) If, at the end of the time set forth in paragraph (1), an interested
person has not filed a claim, the court, upon motion, shall declare that the
person has defaulted upon his or her alleged interest, and it shall be
subject to forfeiture upon proof of compliance with subdivision (c).

(e) The burden is on the petitioner to prove beyond a reasonable doubt that
matter is subject to forfeiture pursuant to this section.

(f) It is not necessary to seek or obtain a criminal conviction prior to the
entry of an order for the destruction of matter pursuant to this section.
Any matter described in subdivision (a) that is in the possession of any
city, county, city and county, or state official or agency, including found
property, or property obtained as the result of a case in which no trial was
had or that has been disposed of by way of dismissal or otherwise than by
way of conviction may be ordered destroyed.

(g) A court order for destruction of matter described in subdivision (a) may
be carried out by a police or sheriff's department or by the Department of
Justice. The court order shall specify the agency responsible for the
destruction.

(h) As used in this section, "matter" means any book, magazine, newspaper,
or other printed or written material or any picture, drawing, photograph,
motion picture, or other pictorial representation, or any statue or other
figure, or any recording, transcription or mechanical, chemical or
electrical reproduction, or any other articles, equipment, machines, or
materials. "Matter" also means any film, filmstrip, photograph, negative,
slide, photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disc, or any other computer-related equipment or
computer-generated image that contains or incorporates in any manner, any
film, filmstrip, photograph, negative, slide, photocopy, videotape, or video
laser disc.

(i) This section does not apply to a depiction of a legally emancipated
minor or to lawful conduct between spouses if one or both are under the age
of 18.

(j) It is a defense in any forfeiture proceeding that the matter seized was
lawfully possessed in aid of legitimate scientific or educational purposes.

SEC. 6. Section 11166 of the Penal Code is amended to read:

11166. (a) Except as provided in subdivision (b), any child care custodian,
health practitioner, employee of a child protective agency, child visitation
monitor, firefighter, animal control officer, or humane society officer who
has knowledge of or observes a child, in his or her professional capacity or
within the scope of his or her employment, whom he or she knows or
reasonably suspects has been the victim of child abuse, shall report the
known or suspected instance of child abuse to a child protective agency
immediately or as soon as practically possible by telephone and shall
prepare and send a written report thereof within 36 hours of receiving the
information concerning the incident. A child protective agency shall be
notified and a report shall be prepared and sent even if the child has
expired, regardless of whether or not the possible abuse was a factor
contributing to the death, and even if suspected child abuse was discovered
during an autopsy. For the purposes of this article, "reasonable suspicion"
means that it is objectively reasonable for a person to entertain a
suspicion, based upon facts that could cause a reasonable person in a like
position, drawing when appropriate , when appropriate, on his or her
training and experience, to suspect child abuse. For the purpose of this
article, the pregnancy of a minor does not, in and of itself, constitute a
basis of reasonable suspicion of sexual abuse.

(b) Any child care custodian, health practitioner, employee of a child
protective agency, child visitation monitor, firefighter, animal control
officer, or humane society officer who has knowledge of or who reasonably
suspects that mental suffering has been inflicted upon a child or that his
or her emotional well-being is endangered in any other way, may report the
known or suspected instance of child abuse to a child protective agency.

(c) Any commercial film and photographic print processor who has knowledge
of or observes, within the scope of his or her professional capacity or
employment, any film, photograph, videotape, negative, or slide depicting a
child under the age of 18 years engaged in an act of sexual conduct, shall
report the instance of suspected child abuse to the law enforcement agency
having jurisdiction over the case immediately, or as soon as practically
possible, by telephone, and shall prepare and send a written report of it
with a copy of the film, photograph, videotape, negative, or slide attached
within 36 hours of receiving the information concerning the incident. As
used in this subdivision, "sexual conduct" means any of the following:

(1) 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.

(2) Penetration of the vagina or rectum by any object.

(3) Masturbation for the purpose of sexual stimulation of the viewer.

(4) Sadomasochistic abuse for the purpose of sexual stimulation of the
viewer.

(5) Exhibition of the genitals, pubic, or rectal areas of any person for the
purpose of sexual stimulation of the viewer.

(d) Any other person who has knowledge of or observes a child whom he or she
knows or reasonably suspects has been a victim of child abuse may report the
known or suspected instance of child abuse to a child protective agency.

(e) When two or more persons who are required to report are present and
jointly have knowledge of a known or suspected instance of child abuse, and
when there is agreement among them, the telephone report may be made by a
member of the team selected by mutual agreement and a single report may be
made and signed by the selected member of the reporting team. Any member who
has knowledge that the member designated to report has failed to do so shall
thereafter make the report.

(f) The reporting duties under this section are individual, and no
supervisor or administrator may impede or inhibit the reporting duties, and
no person making a report shall be subject to any sanction for making the
report. However, internal procedures to facilitate reporting and apprise
supervisors and administrators of reports may be established provided that
they are not inconsistent with this article.

The internal procedures shall not require any employee required to make
reports pursuant to this article to disclose his or her identity to the
employer.

(g) A county probation or welfare department shall immediately, or as soon
as practically possible, report by telephone to the law enforcement agency
having jurisdiction over the case, to the agency given the responsibility
for investigation of cases under Section 300 of the Welfare and Institutions
Code, and to the district attorney's office every known or suspected
instance of child abuse, as defined in Section 11165.6, except acts or
omissions coming within subdivision (b) of Section 11165.2, or reports made
pursuant to Section 11165.13 based on risk to a child which relates solely
to the inability of the parent to provide the child with regular care due to
the parent's substance abuse, which shall be reported only to the county
welfare department. A county probation or welfare department also shall send
a written report thereof within 36 hours of receiving the information
concerning the incident to any agency to which it is required to make a
telephone report under this subdivision.

A law enforcement agency shall immediately, or as soon as practically
possible, report by telephone to the agency given responsibility for
investigation of cases under Section 300 of the Welfare and Institutions
Code and to the district attorney's office every known or suspected instance
of child abuse reported to it, except acts or omissions coming within
subdivision (b) of Section 11165.2, which shall be reported only to the
county welfare department. A law enforcement agency shall report to the
county welfare department every known or suspected instance of child abuse
reported to it which is alleged to have occurred as a result of the action
of a person responsible for the child's welfare, or as the result of the
failure of a person responsible for the child's welfare to adequately
protect the minor from abuse when the person responsible for the child's
welfare knew or reasonably should have known that the minor was in danger of
abuse. A law enforcement agency also shall send a written report thereof
within 36 hours of receiving the information concerning the incident to any
agency to which it is required to make a telephone report under this
subdivision.

SEC. 7. No reimbursement is required by this act pursuant to Section 6 of
Article XIIIB of the California Constitution because the only costs that may
be incurred by a local agency or school district will be incurred because
this act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within the
meaning of Section 17556 of the Government Code, or changes the definition
of a crime within the meaning of Section 6 of Article XIIIB of the
California Constitution.

Notwithstanding Section 17580 of the Government Code, unless otherwise
specified, the provisions of this act shall become operative on the same
date that the act takes effect pursuant to the California Constitution.

SEC. 8. This bill shall become operative only if Assembly Bill 1881 of the
1995-96 Regular Session is chaptered and becomes effective on or before
January 1, 1996.
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