House Bill hb0203e1
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CS/HB 203, First Engrossed
1 A bill to be entitled
2 An act relating to child pornography and images
3 harmful to minors; amending s. 827.071, F.S.;
4 revising the definition of "sexual conduct";
5 amending s. 847.001, F.S.; revising and adding
6 definitions; amending s. 847.0135, F.S.;
7 revising the "Computer Pornography and Child
8 Exploitation Act of 1986" to clarify certain
9 penalties; creating s. 847.0137, F.S.;
10 prohibiting transmissions of child pornography
11 and any image, information, or data harmful to
12 minors; providing penalties; creating s.
13 847.0138, F.S.; prohibiting transmission of
14 material harmful to minors by electronic device
15 or equipment; providing definitions; providing
16 penalties; creating s. 847.0139, F.S.;
17 providing immunity from civil liability for
18 reporting child pornography, transmission of
19 child pornography, or unlawful transmission of
20 any image, information, or data harmful to
21 minors; amending s. 905.34, F.S.; providing
22 jurisdiction of the statewide grand jury over
23 offenses relating to computer pornography,
24 child exploitation, or violations of s.
25 847.0135, F.S.; providing severability;
26 requiring public libraries to install and
27 maintain computer software or equivalent
28 technology that prohibits access to obscene
29 materials by minors; providing that the
30 installation of software or technology in a
31 library having only one public-access computer
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CS/HB 203, First Engrossed
1 is within the library's discretion; providing a
2 finding of important state interest; providing
3 effective dates.
4
5 WHEREAS, The Florida Information Service Technology
6 Development Task Force found and recommended that, while the
7 development of information technology is a rapidly expanding
8 enterprise and the issue of transmission of adult and child
9 pornography is difficult to resolve, legislation should be
10 enacted to address the following situations: where a person
11 in or outside of the State of Florida knowingly transmits any
12 type of pornography to a minor in Florida, a crime has
13 occurred and the State of Florida has jurisdiction; where a
14 person in the State of Florida transmits child pornography to
15 anyone in or outside the State of Florida a crime has occurred
16 and the State of Florida has jurisdiction; and where a person
17 outside the State of Florida knowingly transmits child
18 pornography to any person in the State of Florida, a crime has
19 occurred and the State of Florida has jurisdiction, and
20 WHEREAS, the task force also recommended that
21 legislation be enacted that, while not mandating that a person
22 report child pornography, the transmission of child
23 pornography, or the unlawful transmission of any image,
24 information, or data that is harmful to minors, would grant
25 civil immunity to any person who reports to any law
26 enforcement officer what he or she reasonably believes to be
27 evidence of child pornography, the transmission of child
28 pornography, or the unlawful transmission of any image,
29 information, or data harmful to any minor in this state, and
30 WHEREAS, the Legislature agrees with the foregoing
31 findings, conclusions, and recommendations of the task force,
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CS/HB 203, First Engrossed
1 and finds that legislation enacting the recommendations would
2 facilitate apprehension of persons who transmit child
3 pornography or improperly transmit images harmful to minors
4 while protecting persons from arrest based on unsubstantiated
5 or false accusations or statements or the submission of
6 falsified evidence by the person reporting the transmission,
7 and
8 WHEREAS, the Legislature further finds that the use of
9 minors in pornographic images is harmful to the physiological,
10 emotional, mental, and social well-being of minors and that
11 the dissemination of such images results in subjecting the
12 minors who are the subject of such images to continuing
13 irreparable injury by creating a perpetual record of their
14 participation in pornographic acts, and
15 WHEREAS, the Legislature further finds that child
16 pornography and images, information, and data that are harmful
17 to minors are frequently used to entice minors to engage in
18 improper sexual activity, and the use of such means to entice
19 minors in Florida to engage in such sexual activity
20 irreparably harms their physiological, emotional, mental, and
21 social well-being, and
22 WHEREAS, the Legislature further finds that the advent
23 and growing use of the Internet and other electronic devices
24 has greatly facilitated transmission of child pornography and
25 images, information, and data that are harmful to minors, thus
26 subjecting minors in Florida to an ever-increasing likelihood
27 of being victimized by the purveyors of such, and
28 WHEREAS, the Legislature further finds that
29 criminalizing the transmission of child pornography and the
30 unlawful transmission of images, information, and data that
31 are harmful to minors is an appropriate means of serving the
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CS/HB 203, First Engrossed
1 state's compelling interest in protecting minors in Florida
2 from suffering the irreparable harm they can experience from
3 being subjected to participating in creating the images that
4 are included in such transmissions and from being subjected to
5 receiving the images that are included in such transmissions,
6 and
7 WHEREAS, the Legislature further finds that the First
8 Amendment would not be violated by legislation prohibiting the
9 transmission of child pornography or the transmission of
10 images harmful to minors to a minor in this state, and
11 WHEREAS, the Legislature further finds that deterring
12 and punishing the transmission of child pornography and images
13 harmful to minors can and should be accomplished by amending
14 the laws of this state, and
15 WHEREAS, the Legislature further finds that the laws of
16 this state may be amended to address jurisdictional concerns
17 regarding transmission of child pornography and transmission
18 of images, information, and data harmful to minors to a minor
19 in this state, as those concerns have already been addressed
20 by the Legislature regarding computer-solicitation offenses
21 against minors, and
22 WHEREAS, the Legislature further finds that the laws of
23 this state may be amended to grant civil immunity to any
24 person who reports to any law enforcement officer what he or
25 she reasonably believes to be child pornography, the
26 transmission of child pornography, or the transmission of
27 images, information, and data that are harmful to minors to a
28 minor in this state, NOW, THEREFORE,
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30 Be It Enacted by the Legislature of the State of Florida:
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1 Section 1. Paragraph (g) of subsection (1) of section
2 827.071, Florida Statutes, is amended to read:
3 827.071 Sexual performance by a child; penalties.--
4 (1) As used in this section, the following definitions
5 shall apply:
6 (g) "Sexual conduct" means actual or simulated sexual
7 intercourse, deviate sexual intercourse, sexual bestiality,
8 masturbation, or sadomasochistic abuse; actual lewd exhibition
9 of the genitals; actual physical contact with a person's
10 clothed or unclothed genitals, pubic area, buttocks, or, if
11 such person is a female, breast, with the intent to arouse or
12 gratify the sexual desire of either party; or any act or
13 conduct which constitutes sexual battery or simulates that
14 sexual battery is being or will be committed. A mother's
15 breastfeeding of her baby does not under any circumstance
16 constitute "sexual conduct."
17 Section 2. Section 847.001, Florida Statutes, is
18 amended to read:
19 847.001 Definitions.--As When used in this chapter,
20 the term:
21 (1) "Child pornography" means any image depicting a
22 minor engaged in sexual conduct.
23 (2)(1) "Computer" means an electronic, magnetic,
24 optical, electrochemical, or other high-speed data processing
25 device performing logical, arithmetic, or storage functions
26 and includes any data storage facility or communications
27 facility directly related to or operating in conjunction with
28 such device. The term also includes: any on-line service,
29 Internet service, or local bulletin board; any electronic
30 storage device, including a floppy disk or other magnetic
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1 storage device; or any compact disc that has read-only memory
2 and the capacity to store audio, video, or written materials.
3 (3)(2) "Deviate sexual intercourse" means sexual
4 conduct between persons not married to each other consisting
5 of contact between the penis and the anus, the mouth and the
6 penis, or the mouth and the vulva.
7 (4)(3) "Harmful to minors" means that quality of any
8 reproduction, imitation, characterization, description,
9 exhibition, presentation, or representation, of in whatever
10 kind or form, depicting of nudity, sexual conduct, or sexual
11 excitement when it:
12 (a) Predominantly appeals to the prurient, shameful,
13 or morbid interest of minors;
14 (b) Is patently offensive to prevailing standards in
15 the adult community as a whole with respect to what is
16 suitable material for minors; and
17 (c) Taken as a whole, is without serious literary,
18 artistic, political, or scientific value for minors.
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20 A mother's breastfeeding of her baby is not under any
21 circumstance "harmful to minors."
22 (5)(4) "Minor" means any person under the age of 18
23 years.
24 (6)(5) "Nudity" means the showing of the human male or
25 female genitals, pubic area, or buttocks with less than a
26 fully opaque covering; or the showing of the female breast
27 with less than a fully opaque covering of any portion thereof
28 below the top of the nipple; or the depiction of covered male
29 genitals in a discernibly turgid state. A mother's
30 breastfeeding of her baby does not under any circumstance
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CS/HB 203, First Engrossed
1 constitute "nudity," irrespective of whether or not the nipple
2 is covered during or incidental to feeding.
3 (7)(6) "Person" includes individuals, children, firms,
4 associations, joint ventures, partnerships, estates, trusts,
5 business trusts, syndicates, fiduciaries, corporations, and
6 all other groups or and combinations.
7 (8)(7) "Obscene" means the status of material which:
8 (a) The average person, applying contemporary
9 community standards, would find, taken as a whole, appeals to
10 the prurient interest;
11 (b) Depicts or describes, in a patently offensive way,
12 sexual conduct as specifically defined herein; and
13 (c) Taken as a whole, lacks serious literary,
14 artistic, political, or scientific value.
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16 A mother's breastfeeding of her baby is not under any
17 circumstance "obscene."
18 (9)(8) "Sadomasochistic abuse" means flagellation or
19 torture by or upon a person or animal, or the condition of
20 being fettered, bound, or otherwise physically restrained, for
21 the purpose of deriving sexual satisfaction, or satisfaction
22 brought about as a result of sadistic violence, from
23 inflicting harm on another or receiving such harm oneself.
24 (10)(9) "Sexual battery" means oral, anal, or vaginal
25 penetration by, or union with, the sexual organ of another or
26 the anal or vaginal penetration of another by any other
27 object; however, "sexual battery" does not include an act done
28 for a bona fide medical purpose.
29 (11)(10) "Sexual bestiality" means any sexual act
30 between a person and an animal involving the sex organ of the
31 one and the mouth, anus, or vagina of the other.
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CS/HB 203, First Engrossed
1 (12)(11) "Sexual conduct" means actual or simulated
2 sexual intercourse, deviate sexual intercourse, sexual
3 bestiality, masturbation, or sadomasochistic abuse; actual
4 lewd exhibition of the genitals; actual physical contact with
5 a person's clothed or unclothed genitals, pubic area,
6 buttocks, or, if such person is a female, breast with the
7 intent to arouse or gratify the sexual desire of either party;
8 or any act or conduct which constitutes sexual battery or
9 simulates that sexual battery is being or will be committed.
10 A mother's breastfeeding of her baby does not under any
11 circumstance constitute "sexual conduct."
12 (13)(12) "Sexual excitement" means the condition of
13 the human male or female genitals when in a state of sexual
14 stimulation or arousal.
15 (14)(13) "Simulated" means the explicit depiction of
16 conduct described in subsection (12) (11) which creates the
17 appearance of such conduct and which exhibits any uncovered
18 portion of the breasts, genitals, or buttocks.
19 Section 3. Subsection (2) of section 847.0135, Florida
20 Statutes, is amended to read:
21 847.0135 Computer pornography; penalties.--
22 (2) COMPUTER PORNOGRAPHY.--A person who:
23 (a) Knowingly compiles, enters into, or transmits by
24 use means of computer;
25 (b) Makes, prints, publishes, or reproduces by other
26 computerized means;
27 (c) Knowingly causes or allows to be entered into or
28 transmitted by use means of computer; or
29 (d) Buys, sells, receives, exchanges, or disseminates,
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1 any notice, statement, or advertisement of, or any minor's
2 name, telephone number, place of residence, physical
3 characteristics, or other descriptive or identifying
4 information, for purposes of facilitating, encouraging,
5 offering, or soliciting sexual conduct of or with any minor,
6 or the visual depiction of such conduct, commits a felony of
7 the third degree, punishable as provided in s. 775.082, s.
8 775.083, or s. 775.984. The fact that an undercover operative
9 or law enforcement officer was involved in the detection and
10 investigation of an offense under this section shall not
11 constitute a defense to a prosecution under this section. Any
12 person who violates the provisions of this subsection commits
13 a felony of the third degree, punishable as provided for in s.
14 775.082, s. 775.083, or s. 775.084.
15 Section 4. Section 847.0137, Florida Statutes, is
16 created to read:
17 847.0137 Transmission of pornography by electronic
18 device or equipment prohibited; penalties.--
19 (1) For purposes of this section:
20 (a) "Minor" means any person less than 18 years of
21 age.
22 (b) "Transmit" means the act of sending and causing to
23 be delivered any image, information, or data from one or more
24 persons or places to one or more other persons or places over
25 or through any medium, including the Internet, by use of any
26 electronic equipment or device.
27 (2) Notwithstanding ss. 847.012 and 847.0133, any
28 person in this state who knew or reasonably should have known
29 that he or she was transmitting child pornography, as defined
30 in s. 847.001, to another person in this state or in another
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1 jurisdiction commits a felony of the third degree, punishable
2 as provided in s. 775.082, s. 775.083, or s. 775.084.
3 (3) Notwithstanding ss. 847.012 and 847.0133, any
4 person in any jurisdiction other than this state who knew or
5 reasonably should have known that he or she was transmitting
6 child pornography, as defined in s. 847.001, to any person in
7 this state commits a felony of the third degree, punishable as
8 provided in s. 775.082, s. 775.083, or s. 775.084.
9 (4) This section shall not be construed to prohibit
10 prosecution of a person in this state or another jurisdiction
11 for a violation of any law of this state, including a law
12 providing for greater penalties than prescribed in this
13 section, for the transmission of child pornography, as defined
14 in s. 847.001, to any person in this state.
15 (5) A person is subject to prosecution in this state
16 pursuant to chapter 910 for any act or conduct proscribed by
17 this section, including a person in a jurisdiction other than
18 this state, if the act or conduct violates subsection (3).
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20 The provisions of this section do not apply to
21 subscription-based transmissions such as list servers.
22 Section 5. Section 847.0138, Florida Statutes, is
23 created to read:
24 847.0138 Transmission of material harmful to minors to
25 a minor by electronic device or equipment prohibited;
26 penalties.--
27 (1) For purposes of this section:
28 (a) "Known by the defendant to be a minor" means that
29 the defendant had actual knowledge or had reason to believe
30 that the recipient of the communication was a minor.
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1 (b) "Transmit" means to send to a specific individual
2 known by the defendant to be a minor via electronic mail.
3 (2) Notwithstanding ss. 847.012 and 847.0133, any
4 person in this state who knew or reasonably should have known
5 that he or she was transmitting an image, information, or data
6 that is harmful to minors, as defined in s. 847.001, to a
7 specific individual known by the defendant to be a minor in
8 this state commits a felony of the third degree, punishable as
9 provided in s. 775.082, s. 775.083, or s. 775.084.
10 (3) Notwithstanding ss. 847.012 and 847.0133, any
11 person in any jurisdiction other than this state who knew or
12 reasonably should have known that he or she was transmitting
13 an image, information, or data that is harmful to minors, as
14 defined in s. 847.001, to a specific individual known by the
15 defendant to be a minor in this state commits a felony of the
16 third degree, punishable as provided in s. 775.082, s.
17 775.083, or s. 775.084.
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19 The provisions of this section do not apply to
20 subscription-based transmissions such as list servers.
21 Section 6. Section 847.0139, Florida Statutes, is
22 created to read:
23 847.0139 Immunity from civil liability for reporting
24 child pornography, transmission of child pornography, or any
25 image, information, or data harmful to minors to a minor in
26 this state.--Any person who reports to a law enforcement
27 officer what the person reasonably believes to be child
28 pornography, transmission of child pornography, or any image,
29 information, or data that is harmful to minors to a minor in
30 this state may not be held civilly liable for such
31 reporting. For purposes of this section, such reporting may
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1 include furnishing the law enforcement officer with any image,
2 information, or data that the person reasonably believes to be
3 evidence of child pornography, transmission of child
4 pornography, or an image, information, or data that is harmful
5 to minors to a minor in this state.
6 Section 7. Subsection (7) is added to section 905.34,
7 Florida Statutes, to read:
8 905.34 Powers and duties; law applicable.--The
9 jurisdiction of a statewide grand jury impaneled under this
10 chapter shall extend throughout the state. The subject matter
11 jurisdiction of the statewide grand jury shall be limited to
12 the offenses of:
13 (7) Any violation of s. 847.0135, s. 847.0137, or s.
14 847.0138 relating to computer pornography and child
15 exploitation prevention, or any offense related to a violation
16 of s. 847.0135, s. 847.0137, or s. 847.0138;
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18 or any attempt, solicitation, or conspiracy to commit any
19 violation of the crimes specifically enumerated above, when
20 any such offense is occurring, or has occurred, in two or more
21 judicial circuits as part of a related transaction or when any
22 such offense is connected with an organized criminal
23 conspiracy affecting two or more judicial circuits. The
24 statewide grand jury may return indictments and presentments
25 irrespective of the county or judicial circuit where the
26 offense is committed or triable. If an indictment is
27 returned, it shall be certified and transferred for trial to
28 the county where the offense was committed. The powers and
29 duties of, and law applicable to, county grand juries shall
30 apply to a statewide grand jury except when such powers,
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1 duties, and law are inconsistent with the provisions of ss.
2 905.31-905.40.
3 Section 8. If a court of competent jurisdiction rules
4 that any part of this act is unconstitutional or otherwise
5 ineffective, such ruling shall not affect the other parts of
6 this act and such other parts shall remain effective as though
7 no such ruling has occurred.
8 Section 9. This section shall take effect October 1,
9 2001.
10 Each county or municipal public library that makes
11 available for public use computer on-line service, Internet
12 service, or local bulletin-board service shall install and
13 maintain computer software or equivalent technology on any
14 computer that is made available to persons under 18 years of
15 age which prohibits access to materials that contain obscene
16 descriptions, photographs, or depictions. If the library has
17 only one computer available for public use, the installation
18 of such software or technology shall be within the discretion
19 of the library.
20 Section 10. In accordance with section 18, Article VII
21 of the State Constitution, the Legislature finds that the
22 installation and maintenance by public libraries of computer
23 software or equivalent technology that prohibits access by
24 persons under 18 years of age to obscene materials fulfills an
25 important state interest.
26 Section 11. Except as otherwise provided, this act
27 shall take effect July 1, 2001.
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