HB-5660, As Passed Senate, December 4, 2018

SUBSTITUTE FOR

HOUSE BILL NO. 5660

     A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

by amending section 145c (MCL 750.145c), as amended by 2012 PA 583.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 145c. (1) As used in this section:

     (a) "Access" means to intentionally cause to be viewed by or

transmitted to a person.

     (b) "Appears to include a child" means that the depiction

appears to include, or conveys the impression that it includes, a

person who is less than 18 years of age, and the depiction meets

either of the following conditions:

     (i) It was created using a depiction of any part of an actual

person under the age of 18.

     (ii) It was not created using a depiction of any part of an

actual person under the age of 18, but all of the following apply

to that depiction:

     (A) The average individual, applying contemporary community

standards, would find the depiction, taken as a whole, appeals to

the prurient interest.

     (B) The reasonable person would find the depiction, taken as a

whole, lacks serious literary, artistic, political, or scientific

value.

     (C) The depiction depicts or describes a listed sexual act in

a patently offensive way.

     (c) "Child" means a person who is less than 18 years of age,

subject to the affirmative defense created in subsection (6) (7)

regarding persons emancipated by operation of law.

     (d) "Commercial film or photographic print processor" means a

person or his or her employee who, for compensation, develops

exposed photographic film into movie films, negatives, slides, or

prints; makes prints from negatives or slides; or duplicates movie

films or videotapes.

     (e) "Computer technician" means a person who installs,

maintains, troubleshoots, upgrades, or repairs computer hardware,

software, personal computer networks, or peripheral equipment.

     (f) "Contemporary community standards" means the customary

limits of candor and decency in this state at or near the time of

the alleged violation of this section.

     (g) "Erotic fondling" means touching a person's clothed or

unclothed genitals, pubic area, buttocks, or, if the person is

female, breasts, or if the person is a child, the developing or

undeveloped breast area, for the purpose of real or simulated overt

sexual gratification or stimulation of 1 or more of the persons

involved. Erotic fondling does not include physical contact, even

if affectionate, that is not for the purpose of real or simulated

overt sexual gratification or stimulation of 1 or more of the

persons involved.

     (h) "Erotic nudity" means the lascivious exhibition of the

genital, pubic, or rectal area of any person. As used in this

subdivision, "lascivious" means wanton, lewd, and lustful and

tending to produce voluptuous or lewd emotions.

     (i) "Listed sexual act" means sexual intercourse, erotic

fondling, sadomasochistic abuse, masturbation, passive sexual

involvement, sexual excitement, or erotic nudity.

     (j) "Make" means to bring into existence by copying, shaping,

changing, or combining material, and specifically includes, but is

not limited to, intentionally creating a reproduction, copy, or

print of child sexually abusive material, in whole or part. Make

does not include the creation of an identical reproduction or copy

of child sexually abusive material within the same digital storage

device or the same piece of digital storage media.

     (k) "Masturbation" means the real or simulated touching,

rubbing, or otherwise stimulating of a person's own clothed or

unclothed genitals, pubic area, buttocks, or, if the person is

female, breasts, or if the person is a child, the developing or

undeveloped breast area, either by manual manipulation or self-

induced or with an artificial instrument, for the purpose of real

or simulated overt sexual gratification or arousal of the person.

     (l) "Passive sexual involvement" means an act, real or

simulated, that exposes another person to or draws another person's

attention to an act of sexual intercourse, erotic fondling,

sadomasochistic abuse, masturbation, sexual excitement, or erotic

nudity because of viewing any of these acts or because of the

proximity of the act to that person, for the purpose of real or

simulated overt sexual gratification or stimulation of 1 or more of

the persons involved.

     (m) "Prurient interest" means a shameful or morbid interest in

nudity, sex, or excretion.

     (n) "Child sexually abusive activity" means a child engaging

in a listed sexual act.

     (o) "Child sexually abusive material" means any depiction,

whether made or produced by electronic, mechanical, or other means,

including a developed or undeveloped photograph, picture, film,

slide, video, electronic visual image, computer diskette, computer

or computer-generated image, or picture, or sound recording which

is of a child or appears to include a child engaging in a listed

sexual act; a book, magazine, computer, computer storage device, or

other visual or print or printable medium containing such a

photograph, picture, film, slide, video, electronic visual image,

computer, or computer-generated image, or picture, or sound

recording; or any reproduction, copy, or print of such a

photograph, picture, film, slide, video, electronic visual image,

book, magazine, computer, or computer-generated image, or picture,

other visual or print or printable medium, or sound recording.

     (p) "Sadomasochistic abuse" means either of the following:

     (i) Flagellation or torture, real or simulated, for the

purpose of real or simulated sexual stimulation or gratification,

by or upon a person.

     (ii) The condition, real or simulated, of being fettered,

bound, or otherwise physically restrained for sexual stimulation or

gratification of a person.

     (q) "Sexual excitement" means the condition, real or

simulated, of human male or female genitals in a state of real or

simulated overt sexual stimulation or arousal.

     (r) "Sexual intercourse" means intercourse, real or simulated,

whether genital-genital, oral-genital, anal-genital, or oral-anal,

whether between persons of the same or opposite sex or between a

human and an animal, or with an artificial genital.

     (2) A person who persuades, induces, entices, coerces, causes,

or knowingly allows a child to engage in a child sexually abusive

activity for the purpose of producing any child sexually abusive

material, or a person who arranges for, produces, makes, copies,

reproduces, or finances, or a person who attempts or prepares or

conspires to arrange for, produce, make, copy, reproduce, or

finance any child sexually abusive activity or child sexually

abusive material for personal, distributional, or other purposes is

guilty of a felony, punishable by imprisonment for not more than 20

years, or a fine of not more than $100,000.00, or both, if that

person knows, has reason to know, or should reasonably be expected

to know that the child is a child or that the child sexually

abusive material includes a child or that the depiction

constituting the child sexually abusive material appears to include

a child, or that person has not taken reasonable precautions to

determine the age of the child .is guilty of a crime as follows:

     (a) Except as provided in subdivision (b), the person is

guilty of a felony punishable by imprisonment for not more than 20

years or a fine of not more than $100,000.00, or both.

     (b) If the child sexually abusive activity or child sexually

abusive material involves a prepubescent child, sadomasochistic

abuse or bestiality, or includes a video or more than 100 images of

child sexually abusive material, the person is guilty of a felony

punishable by imprisonment for not more than 25 years or a fine of

not more than $125,000.00, or both.

     (3) A Except as provided in subsection (14), a person who

distributes or promotes, or finances the distribution or promotion

of, or receives for the purpose of distributing or promoting, or

conspires, attempts, or prepares to distribute, receive, finance,

or promote any child sexually abusive material or child sexually

abusive activity is guilty of a felony, punishable by imprisonment

for not more than 7 years, or a fine of not more than $50,000.00,

or both, if that person knows, has reason to know, or should

reasonably be expected to know that the child is a child or that

the child sexually abusive material includes a child or that the

depiction constituting the child sexually abusive material appears

to include a child, or that person has not taken reasonable

precautions to determine the age of the child . This subsection

does not apply to the persons described in section 7 of 1984 PA

343, MCL 752.367.is guilty of a crime as follows:

     (a) Except as provided in subdivision (b), the person is

guilty of a felony punishable by imprisonment for not more than 7

years or a fine of not more than $50,000.00, or both.

     (b) If the child sexually abusive activity or child sexually

abusive material involves a prepubescent child, sadomasochistic

abuse or bestiality, or includes a video or more than 100 images of

child sexually abusive material, the person is guilty of a felony

punishable by imprisonment for not more than 15 years or a fine of

not more than $75,000.00, or both.

     (4) A person who knowingly possesses or knowingly seeks and

accesses any child sexually abusive material is guilty of a felony

punishable by imprisonment for not more than 4 years or a fine of

not more than $10,000.00, or both, if that person knows, has reason

to know, or should reasonably be expected to know the child is a

child or that the child sexually abusive material includes a child

or that the depiction constituting the child sexually abusive

material appears to include a child, or that person has not taken

reasonable precautions to determine the age of the child . This

subsectionis guilty of a crime as follows:

     (a) Except as provided in subdivision (b) and section 145g,

the person is guilty of a felony punishable by imprisonment for not

more than 4 years or a fine of not more than $10,000.00, or both.

     (b) If the child sexually abusive activity or child sexually

abusive material involves a prepubescent child, sadomasochistic

abuse or bestiality, or includes a video or more than 100 images of

child sexually abusive material, the person is guilty of a felony

punishable by imprisonment for not more than 10 years or a fine of

not more than $50,000.00, or both.

     (5) Subsection (4) does not apply to any of the following:

     (a) A person described in section 7 of 1984 PA 343, MCL

752.367, a commercial film or photographic print processor acting

under subsection (8), (9), or a computer technician acting under

subsection (9).(10).

     (b) A police officer acting within the scope of his or her

duties as a police officer.

     (c) An employee or contract agent of the department of social

health and human services acting within the scope of his or her

duties as an employee or contract agent.

     (d) A judicial officer or judicial employee acting within the

scope of his or her duties as a judicial officer or judicial

employee.

     (e) A party or witness in a criminal or civil proceeding

acting within the scope of that criminal or civil proceeding.

     (f) A physician, psychologist, limited license psychologist,

professional counselor, or registered nurse licensed under the

public health code, 1978 PA 368, MCL 333.1101 to 333.25211, acting

within the scope of practice for which he or she is licensed.

     (g) A social worker registered in this state under article 15

of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838,

acting within the scope of practice for which he or she is

registered.

(6) (5) Expert testimony as to the age of the child used in a

child sexually abusive material or a child sexually abusive

activity is admissible as evidence in court and may be a legitimate

basis for determining age, if age is not otherwise proven.

(7) (6) It is an affirmative defense to a prosecution under

this section that the alleged child is a person who is emancipated

by operation of law under section 4(2) of 1968 PA 293, MCL 722.4,

as proven by a preponderance of the evidence.

(8) (7) If a defendant in a prosecution under this section

proposes to offer in his or her defense evidence to establish that

a depiction that appears to include a child was not, in fact,

created using a depiction of any part of an actual person under the

age of 18, the defendant shall at the time of the arraignment on

the information or within 15 days after arraignment but not less

than 10 days before the trial of the case, or at such other time as

the court directs, file and serve upon the prosecuting attorney of

record a notice in writing of his or her intention to offer that

defense. The notice shall must contain, as particularly as is known

to the defendant or the defendant's attorney, the names of

witnesses to be called in on behalf of the defendant to establish

that defense. The defendant's notice shall must include specific

information as to the facts that establish that the depiction was

not, in fact, created using a depiction of any part of an actual

person under the age of 18. Failure to file a timely notice in

conformance with this subsection precludes a defendant from

offering this defense.

(9) (8) If a commercial film or photographic print processor

reports to a law enforcement agency having jurisdiction his or her

knowledge or observation, within the scope of his or her

professional capacity or employment, of a film, photograph, movie

film, videotape, negative, or slide depicting a person that the

processor has reason to know or reason to believe is a child

engaged in a listed sexual act; furnishes a copy of the film,

photograph, movie film, videotape, negative, or slide to a law

enforcement agency having jurisdiction; or keeps the film,

photograph, movie film, videotape, negative, or slide according to

the law enforcement agency's instructions, both of the following

shall apply:

     (a) The identity of the processor shall must be confidential,

subject to disclosure only with his or her consent or by judicial

process.

     (b) If the processor acted in good faith, he or she shall be

is immune from civil liability that might otherwise be incurred by

his or her actions. This immunity extends only to acts described in

this subsection.

(10) (9) If a computer technician reports to a law enforcement

agency having jurisdiction his or her knowledge or observation,

within the scope of his or her professional capacity or employment,

of an electronic visual image, computer-generated image or picture

or sound recording depicting a person that the computer technician

has reason to know or reason to believe is a child engaged in a

listed sexual act; furnishes a copy of that image, picture, or

sound recording to the law enforcement agency; or keeps the image,

picture, or sound recording according to the law enforcement

agency's instructions, both of the following apply:

     (a) The identity of the computer technician shall must be

confidential, subject to disclosure only with his or her consent or

by judicial process.

     (b) If the computer technician acted in good faith, he or she

is immune from civil liability that might otherwise be incurred by

his or her actions. This immunity extends only to acts described in

this subsection.

(11) (10) In any criminal proceeding regarding an alleged

violation or attempted violation of this section, the court shall

deny any request by the defendant to copy, photograph, duplicate,

or otherwise reproduce any photographic or other pictorial evidence

of a child engaging in a listed sexual act if the prosecuting

attorney makes that evidence reasonably available to the defendant.

Evidence is considered to be reasonably available to the defendant

under this subsection if the prosecuting attorney provides an

opportunity to the defendant and his or her attorney, and any

person the defendant may seek to qualify as an expert witness at

trial, to inspect, view, and examine that evidence at a facility

approved by the prosecuting attorney.

(12) (11) This section applies uniformly throughout the state

and all political subdivisions and municipalities in the state.

(13) (12) A local municipality or political subdivision shall

not enact any ordinance or enforce any existing ordinance, rule, or

regulation governing child sexually abusive activity or child

sexually abusive material. as defined by this section.

     (14) Subsection (3) does not apply to the persons described in

section 7 of 1984 PA 343, MCL 752.367.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

     Enacting section 2. This amendatory act does not take effect

unless House Bill No. 5794 of the 99th Legislature is enacted into

law.