Maryland 2024 Regular Session

Maryland Senate Bill SB65 Compare Versions

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33 EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
44 [Brackets] indicate matter deleted from existing law.
5- Underlining indicates amendments to bill.
6- Strike out indicates matter stricken from the bill by amendment or deleted from the law by
7-amendment.
85 *sb0065*
96
107 SENATE BILL 65
118 E1 4lr1438
129 (PRE–FILED)
13-By: Senator James Senators James, Smith, Waldstreicher, Carter, McKay, Kelly,
14-Charles, Sydnor, West, Muse, and Folden
10+By: Senator James
1511 Requested: November 1, 2023
1612 Introduced and read first time: January 10, 2024
1713 Assigned to: Judicial Proceedings
18-Committee Report: Favorable with amendments
19-Senate action: Adopted
20-Read second time: February 12, 2024
2114
22-CHAPTER ______
15+A BILL ENTITLED
2316
2417 AN ACT concerning 1
2518
2619 Criminal Law – Child Pornography – Prohibitions and Penalties 2
2720
2821 FOR the purpose of prohibiting a person from possessing certain child pornography under 3
2922 certain circumstances; and generally relating to child pornography prohibitions and 4
3023 penalties. 5
3124
3225 BY repealing and reenacting, without amendments, 6
3326 Article – Criminal Law 7
3427 Section 11–207 and 11–208 8
3528 Annotated Code of Maryland 9
3629 (2021 Replacement Volume and 2023 Supplement) 10
3730
3831 BY adding to 11
3932 Article – Criminal Law 12
4033 Section 11–208.2 13
4134 Annotated Code of Maryland 14
4235 (2021 Replacement Volume and 2023 Supplement) 15
4336
4437 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 16
4538 That the Laws of Maryland read as follows: 17
4639
4740 Article – Criminal Law 18
48- 2 SENATE BILL 65
4941
42+11–207. 19
5043
51-11–207. 1
44+ (a) A person may not: 20
5245
53- (a) A person may not: 2
54-
55- (1) cause, induce, solicit, or knowingly allow a minor to engage as a subject 3
56-in the production of obscene matter or a visual representation or performance that depicts 4
57-a minor engaged as a subject in sadomasochistic abuse or sexual conduct; 5
58-
59- (2) photograph or film a minor engaging in an obscene act, sadomasochistic 6
60-abuse, or sexual conduct; 7
61-
62- (3) use a computer to depict or describe a minor engaging in an obscene act, 8
63-sadomasochistic abuse, or sexual conduct; 9
64-
65- (4) knowingly promote, advertise, solicit, distribute, or possess with the 10
66-intent to distribute any matter, visual representation, or performance: 11
67-
68- (i) that depicts a minor engaged as a subject in sadomasochistic 12
69-abuse or sexual conduct; or 13
70-
71- (ii) in a manner that reflects the belief, or that is intended to cause 14
72-another to believe, that the matter, visual representation, or performance depicts a minor 15
73-engaged as a subject of sadomasochistic abuse or sexual conduct; or 16
74-
75- (5) use a computer to knowingly compile, enter, transmit, make, print, 17
76-publish, reproduce, cause, allow, buy, sell, receive, exchange, or disseminate any notice, 18
77-statement, advertisement, or minor’s name, telephone number, place of residence, physical 19
78-characteristics, or other descriptive or identifying information for the purpose of engaging 20
79-in, facilitating, encouraging, offering, or soliciting unlawful sadomasochistic abuse or 21
80-sexual conduct of or with a minor. 22
81-
82- (b) A person who violates this section is guilty of a felony and on conviction is 23
83-subject to: 24
84-
85- (1) for a first violation, imprisonment not exceeding 10 years or a fine not 25
86-exceeding $25,000 or both; and 26
87-
88- (2) for each subsequent violation, imprisonment not exceeding 20 years or 27
89-a fine not exceeding $50,000 or both. 28
90-
91- (c) (1) (i) This paragraph applies only if the minor’s identity is unknown 29
92-or the minor is outside the jurisdiction of the State. 30
93-
94- (ii) In an action brought under this section, the State is not required 31
95-to identify or produce testimony from the minor who is depicted in the obscene matter or in 32
96-any visual representation or performance that depicts the minor engaged as a subject in 33
97-sadomasochistic abuse or sexual conduct. 34 SENATE BILL 65 3
46+ (1) cause, induce, solicit, or knowingly allow a minor to engage as a subject 21
47+in the production of obscene matter or a visual representation or performance that depicts 22
48+a minor engaged as a subject in sadomasochistic abuse or sexual conduct; 23 2 SENATE BILL 65
9849
9950
10051
101- (2) The trier of fact may determine whether an individual who is depicted 1
102-in an obscene matter, or any visual representation or performance as the subject in 2
103-sadomasochistic abuse or sexual conduct, was a minor by: 3
52+ (2) photograph or film a minor engaging in an obscene act, sadomasochistic 1
53+abuse, or sexual conduct; 2
10454
105- (i) observation of the matter depicting the individual; 4
55+ (3) use a computer to depict or describe a minor engaging in an obscene act, 3
56+sadomasochistic abuse, or sexual conduct; 4
10657
107- (ii) oral testimony by a witness to the production of the matter, 5
108-representation, or performance; 6
58+ (4) knowingly promote, advertise, solicit, distribute, or possess with the 5
59+intent to distribute any matter, visual representation, or performance: 6
10960
110- (iii) expert medical testimony; or 7
61+ (i) that depicts a minor engaged as a subject in sadomasochistic 7
62+abuse or sexual conduct; or 8
11163
112- (iv) any other method authorized by an applicable provision of law or 8
113-rule of evidence. 9
64+ (ii) in a manner that reflects the belief, or that is intended to cause 9
65+another to believe, that the matter, visual representation, or performance depicts a minor 10
66+engaged as a subject of sadomasochistic abuse or sexual conduct; or 11
11467
115-11–208. 10
68+ (5) use a computer to knowingly compile, enter, transmit, make, print, 12
69+publish, reproduce, cause, allow, buy, sell, receive, exchange, or disseminate any notice, 13
70+statement, advertisement, or minor’s name, telephone number, place of residence, physical 14
71+characteristics, or other descriptive or identifying information for the purpose of engaging 15
72+in, facilitating, encouraging, offering, or soliciting unlawful sadomasochistic abuse or 16
73+sexual conduct of or with a minor. 17
11674
117- (a) (1) In this section, “indistinguishable from an actual and identifiable child” 11
118-means an ordinary person would conclude that the image is of an actual and identifiable 12
119-minor. 13
75+ (b) A person who violates this section is guilty of a felony and on conviction is 18
76+subject to: 19
12077
121- (2) “Indistinguishable from an actual and identifiable child” includes a 14
122-computer–generated image that has been created, adapted, or modified to appear as an 15
123-actual and identifiable child. 16
78+ (1) for a first violation, imprisonment not exceeding 10 years or a fine not 20
79+exceeding $25,000 or both; and 21
12480
125- (3) “Indistinguishable from an actual and identifiable child” does not 17
126-include images or items depicting minors that are: 18
81+ (2) for each subsequent violation, imprisonment not exceeding 20 years or 22
82+a fine not exceeding $50,000 or both. 23
12783
128- (i) drawings; 19
84+ (c) (1) (i) This paragraph applies only if the minor’s identity is unknown 24
85+or the minor is outside the jurisdiction of the State. 25
12986
130- (ii) cartoons; 20
87+ (ii) In an action brought under this section, the State is not required 26
88+to identify or produce testimony from the minor who is depicted in the obscene matter or in 27
89+any visual representation or performance that depicts the minor engaged as a subject in 28
90+sadomasochistic abuse or sexual conduct. 29
13191
132- (iii) sculptures; or 21
92+ (2) The trier of fact may determine whether an individual who is depicted 30
93+in an obscene matter, or any visual representation or performance as the subject in 31
94+sadomasochistic abuse or sexual conduct, was a minor by: 32
13395
134- (iv) paintings. 22
96+ (i) observation of the matter depicting the individual; 33
97+ SENATE BILL 65 3
13598
136- (b) (1) A person may not knowingly possess and intentionally retain a film, 23
137-videotape, photograph, or other visual representation showing an actual child or a 24
138-computer–generated image that is indistinguishable from an actual and identifiable child 25
139-under the age of 16 years: 26
14099
141- (i) engaged as a subject of sadomasochistic abuse; 27
100+ (ii) oral testimony by a witness to the production of the matter, 1
101+representation, or performance; 2
142102
143- (ii) engaged in sexual conduct; or 28
103+ (iii) expert medical testimony; or 3
144104
145- (iii) in a state of sexual excitement. 29
105+ (iv) any other method authorized by an applicable provision of law or 4
106+rule of evidence. 5
107+
108+11–208. 6
109+
110+ (a) (1) In this section, “indistinguishable from an actual and identifiable child” 7
111+means an ordinary person would conclude that the image is of an actual and identifiable 8
112+minor. 9
113+
114+ (2) “Indistinguishable from an actual and identifiable child” includes a 10
115+computer–generated image that has been created, adapted, or modified to appear as an 11
116+actual and identifiable child. 12
117+
118+ (3) “Indistinguishable from an actual and identifiable child” does not 13
119+include images or items depicting minors that are: 14
120+
121+ (i) drawings; 15
122+
123+ (ii) cartoons; 16
124+
125+ (iii) sculptures; or 17
126+
127+ (iv) paintings. 18
128+
129+ (b) (1) A person may not knowingly possess and intentionally retain a film, 19
130+videotape, photograph, or other visual representation showing an actual child or a 20
131+computer–generated image that is indistinguishable from an actual and identifiable child 21
132+under the age of 16 years: 22
133+
134+ (i) engaged as a subject of sadomasochistic abuse; 23
135+
136+ (ii) engaged in sexual conduct; or 24
137+
138+ (iii) in a state of sexual excitement. 25
139+
140+ (2) A person may not knowingly or intentionally access and intentionally 26
141+view a film, videotape, photograph, or other visual representation showing an actual child 27
142+or a computer–generated image that is indistinguishable from an actual and identifiable 28
143+child under the age of 16 years: 29
144+
145+ (i) engaged as a subject of sadomasochistic abuse; 30
146146 4 SENATE BILL 65
147147
148148
149- (2) A person may not knowingly or intentionally access and intentionally 1
150-view a film, videotape, photograph, or other visual representation showing an actual child 2
151-or a computer–generated image that is indistinguishable from an actual and identifiable 3
152-child under the age of 16 years: 4
149+ (ii) engaged in sexual conduct; or 1
153150
154- (i) engaged as a subject of sadomasochistic abuse; 5
151+ (iii) in a state of sexual excitement. 2
155152
156- (ii) engaged in sexual conduct; or 6
153+ (c) (1) Except as provided in paragraph (2) of this subsection, a person who 3
154+violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment 4
155+not exceeding 5 years or a fine not exceeding $2,500 or both. 5
157156
158- (iii) in a state of sexual excitement. 7
157+ (2) A person who violates this section, having previously been convicted 6
158+under this section, is guilty of a felony and on conviction is subject to imprisonment not 7
159+exceeding 10 years or a fine not exceeding $10,000 or both. 8
159160
160- (c) (1) Except as provided in paragraph (2) of this subsection, a person who 8
161-violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment 9
162-not exceeding 5 years or a fine not exceeding $2,500 or both. 10
161+ (d) Nothing in this section may be construed to prohibit a parent from possessing 9
162+visual representations of the parent’s own child in the nude unless the visual 10
163+representations show the child engaged: 11
163164
164- (2) A person who violates this section, having previously been convicted 11
165-under this section, is guilty of a felony and on conviction is subject to imprisonment not 12
166-exceeding 10 years or a fine not exceeding $10,000 or both. 13
165+ (1) as a subject of sadomasochistic abuse; or 12
167166
168- (d) Nothing in this section may be construed to prohibit a parent from possessing 14
169-visual representations of the parent’s own child in the nude unless the visual 15
170-representations show the child engaged: 16
167+ (2) in sexual conduct and in a state of sexual excitement. 13
171168
172- (1) as a subject of sadomasochistic abuse; or 17
169+ (e) It is an affirmative defense to a charge of violating this section that the person 14
170+promptly and in good faith: 15
173171
174- (2) in sexual conduct and in a state of sexual excitement. 18
172+ (1) took reasonable steps to destroy each visual representation; or 16
175173
176- (e) It is an affirmative defense to a charge of violating this section that the person 19
177-promptly and in good faith: 20
174+ (2) reported the matter to a law enforcement agency. 17
178175
179- (1) took reasonable steps to destroy each visual representation; or 21
176+11–208.2. 18
180177
181- (2) reported the matter to a law enforcement agency. 22
178+ (A) (1) IN THIS SECTION , “IMAGE” MEANS ANY MATTER , VISUAL 19
179+REPRESENTATION , OR PERFORMA NCE, INCLUDING PHOTOGRAPH S, PICTURES, 20
180+ELECTRONIC PHOTOGRAP HS, COMPUTER GENERATED I MAGES, VIDEOS, 21
181+ELECTRONIC VIDEOS , FILM, VIDEOTAPES, OR SIMILAR VISUAL RE PRESENTATIONS 22
182+OR VIDEO DEPICTIONS . 23
182183
183-11–208.2. 23
184+ (2) FOR THE PURPOSES OF D ETERMINING THE NUMBE R OF IMAGES 24
185+IN POSSESSION OF AN IND IVIDUAL IN VIOLATION OF THIS SECTION: 25
184186
185- (A) (1) IN THIS SECTION , “IMAGE” MEANS ANY MATTER , VISUAL 24
186-REPRESENTATION , OR PERFORMANCE , INCLUDING PHOTOGRAPH S, PICTURES, 25
187-ELECTRONIC PHOTOGRAP HS, COMPUTER GENERATED I MAGES, VIDEOS, 26
188-ELECTRONIC VIDEOS , FILM, VIDEOTAPES, OR SIMILAR VISUAL RE PRESENTATIONS 27
189-OR VIDEO DEPICTIONS. 28
187+ (I) EACH PHOTOGRAPH , PICTURE, ELECTRONIC PHOTOGRAP H, 26
188+COMPUTER GENERATED I MAGE, OR SIMILAR VISUAL RE PRESENTATION SHALL B E 27
189+DEEMED TO BE ONE IMAGE; AND 28
190190
191- (2) FOR THE PURPOSES OF D ETERMINING THE NUMBE R OF IMAGES 29
192-IN POSSESSION OF AN INDIVIDUAL IN VIOLAT ION OF THIS SECTION : 30
191+ (II) EACH VIDEO, ELECTRONIC VIDEO , FILM, VIDEOTAPE, OR 29
192+SIMILAR VIDEO DEPICT ION SHALL BE DEEMED TO BE TWENTY IMAGES . 30
193193 SENATE BILL 65 5
194194
195195
196- (I) EACH PHOTOGRAPH , PICTURE, ELECTRONIC PHOTOGRAP H, 1
197-COMPUTER GENERATED I MAGE, OR SIMILAR VISUAL RE PRESENTATION SHALL B E 2
198-DEEMED TO BE ONE IMA GE; AND 3
196+ (B) (1) A PERSON MAY NOT VIOLA TE § 11–207(A)(4) OR § 11–208(B)(1) OF 1
197+THIS SUBTITLE WITH 100 OR MORE IMAGES . 2
199198
200- (II) EACH VIDEO, ELECTRONIC VIDEO , FILM, VIDEOTAPE, OR 4
201-SIMILAR VIDEO DEPICT ION SHALL BE DEEMED TO BE TWENTY IMAGES . 5
199+ (2) A PERSON WHO VIOLATES THIS SUBSECTION IS GUILTY OF A 3
200+FELONY AND ON CONVICTION IS SUBJECT TO IMPRIS ONMENT NOT EXCEEDING 10 4
201+YEARS. 5
202202
203- (B) (1) A PERSON MAY NOT VIOLA TE § 11–207(A)(4) OR § 11–208(B)(1) OF 6
204-THIS SUBTITLE WITH 100 OR MORE IMAGES . 7
203+ (3) A SENTENCE IMPOSED UND ER THIS SUBSECTION S HALL BE 6
204+SEPARATE FROM AND CO NSECUTIVE TO A SENTENCE IMPOSE D FOR ANY CRIME 7
205+BASED ON THE ACT EST ABLISHING A VIOLATION OF § 11–207 OR § 11–208 OF THIS 8
206+SUBTITLE. 9
205207
206- (2) A PERSON WHO VIOLATES THIS SUBSECTION IS G UILTY OF A 8
207-FELONY AND ON CONVIC TION IS SUBJECT TO I MPRISONMENT NOT EXCE EDING 10 9
208-YEARS. 10
208+ (C) (1) A PERSON MAY NOT VIOLA TE § 11–207(A)(4) OR § 11–208(B)(1) OF 10
209+THIS SUBTITLE WITH ANY IMAGE DEPICTING A MINOR OR AN INDIVIDUAL 11
210+INDISTINGUISHABLE FR OM AN ACTUAL MINOR Y OUNGER THAN 13 YEARS OF AGE. 12
209211
210- (3) A SENTENCE IMPOSED UND ER THIS SUBSECTION SHALL MAY BE 11
211-SEPARATE FROM AND CO NSECUTIVE TO OR CONCURRENT WITH A SENTENCE 12
212-IMPOSED FOR ANY OTHER CRIME BASED ON THE A CT ESTABLISHING A VI OLATION 13
213-OF § 11–207 OR § 11–208 OF THIS SUBTITLE. 14
212+ (2) A PERSON WHO VIOLATES THIS SUBSECTION IS G UILTY OF A 13
213+FELONY AND ON CONVIC TION IS SUBJECT TO IMPRIS ONMENT NOT EXCEEDING 10 14
214+YEARS. 15
214215
215- (C) (1) A PERSON MAY NOT VIOLA TE § 11–207(A)(4) OR § 11–208(B)(1) OF 15
216-THIS SUBTITLE WITH A NY IMAGE DEPICTING A MINOR OR AN INDIVIDUAL 16
217-INDISTINGUISHABLE FR OM AN ACTUAL MINOR Y OUNGER THAN 13 YEARS OF AGE. 17
216+ (3) A SENTENCE IMPOSED UND ER THIS SUBSECTION S HALL BE 16
217+SEPARATE FROM AND CO NSECUTIVE TO A SENTENCE IMPOSED F OR ANY CR IME 17
218+BASED ON THE ACTS ES TABLISHING A VIOLATI ON OF § 11–207 OR § 11–208 OF THIS 18
219+SUBTITLE. 19
218220
219- (2) A PERSON WHO VIOLATES THIS SUBSECTION IS G UILTY OF A 18
220-FELONY AND ON CONVIC TION IS SUBJECT TO I MPRISONMENT NOT EXCE EDING 10 19
221-YEARS. 20
222-
223- (3) A SENTENCE IMPOSED UND ER THIS SUBSECTION SHALL MAY BE 21
224-SEPARATE FROM AND CO NSECUTIVE TO OR CONCURRENT WITH A SENTENCE 22
225-IMPOSED FOR ANY OTHER CRIME BASED ON THE A CTS ESTABLISHING A V IOLATION 23
226-OF § 11–207 OR § 11–208 OF THIS SUBTITLE. 24
227-
228- SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 25
229-October 1, 2024. 26
230-
221+ SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 20
222+October 1, 2024. 21