Old | New | Differences | |
---|---|---|---|
1 | 1 | ||
2 | 2 | ||
3 | 3 | EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW. | |
4 | 4 | [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. | |
8 | 5 | *sb0065* | |
9 | 6 | ||
10 | 7 | SENATE BILL 65 | |
11 | 8 | E1 4lr1438 | |
12 | 9 | (PRE–FILED) | |
13 | - | By: Senator James Senators James, Smith, Waldstreicher, Carter, McKay, Kelly, | |
14 | - | Charles, Sydnor, West, Muse, and Folden | |
10 | + | By: Senator James | |
15 | 11 | Requested: November 1, 2023 | |
16 | 12 | Introduced and read first time: January 10, 2024 | |
17 | 13 | Assigned to: Judicial Proceedings | |
18 | - | Committee Report: Favorable with amendments | |
19 | - | Senate action: Adopted | |
20 | - | Read second time: February 12, 2024 | |
21 | 14 | ||
22 | - | ||
15 | + | A BILL ENTITLED | |
23 | 16 | ||
24 | 17 | AN ACT concerning 1 | |
25 | 18 | ||
26 | 19 | Criminal Law – Child Pornography – Prohibitions and Penalties 2 | |
27 | 20 | ||
28 | 21 | FOR the purpose of prohibiting a person from possessing certain child pornography under 3 | |
29 | 22 | certain circumstances; and generally relating to child pornography prohibitions and 4 | |
30 | 23 | penalties. 5 | |
31 | 24 | ||
32 | 25 | BY repealing and reenacting, without amendments, 6 | |
33 | 26 | Article – Criminal Law 7 | |
34 | 27 | Section 11–207 and 11–208 8 | |
35 | 28 | Annotated Code of Maryland 9 | |
36 | 29 | (2021 Replacement Volume and 2023 Supplement) 10 | |
37 | 30 | ||
38 | 31 | BY adding to 11 | |
39 | 32 | Article – Criminal Law 12 | |
40 | 33 | Section 11–208.2 13 | |
41 | 34 | Annotated Code of Maryland 14 | |
42 | 35 | (2021 Replacement Volume and 2023 Supplement) 15 | |
43 | 36 | ||
44 | 37 | SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 16 | |
45 | 38 | That the Laws of Maryland read as follows: 17 | |
46 | 39 | ||
47 | 40 | Article – Criminal Law 18 | |
48 | - | 2 SENATE BILL 65 | |
49 | 41 | ||
42 | + | 11–207. 19 | |
50 | 43 | ||
51 | - | ||
44 | + | (a) A person may not: 20 | |
52 | 45 | ||
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 | |
98 | 49 | ||
99 | 50 | ||
100 | 51 | ||
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 | |
104 | 54 | ||
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 | |
106 | 57 | ||
107 | - | ( | |
108 | - | representation, or performance | |
58 | + | (4) knowingly promote, advertise, solicit, distribute, or possess with the 5 | |
59 | + | intent to distribute any matter, visual representation, or performance: 6 | |
109 | 60 | ||
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 | |
111 | 63 | ||
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 | |
114 | 67 | ||
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 | |
116 | 74 | ||
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 | |
120 | 77 | ||
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 | |
124 | 80 | ||
125 | - | ( | |
126 | - | ||
81 | + | (2) for each subsequent violation, imprisonment not exceeding 20 years or 22 | |
82 | + | a fine not exceeding $50,000 or both. 23 | |
127 | 83 | ||
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 | |
129 | 86 | ||
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 | |
131 | 91 | ||
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 | |
133 | 95 | ||
134 | - | (iv) paintings. 22 | |
96 | + | (i) observation of the matter depicting the individual; 33 | |
97 | + | SENATE BILL 65 3 | |
135 | 98 | ||
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 | |
140 | 99 | ||
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 | |
142 | 102 | ||
143 | - | ( | |
103 | + | (iii) expert medical testimony; or 3 | |
144 | 104 | ||
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 | |
146 | 146 | 4 SENATE BILL 65 | |
147 | 147 | ||
148 | 148 | ||
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 | |
153 | 150 | ||
154 | - | ( | |
151 | + | (iii) in a state of sexual excitement. 2 | |
155 | 152 | ||
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 | |
157 | 156 | ||
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 | |
159 | 160 | ||
160 | - | ( | |
161 | - | ||
162 | - | ||
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 | |
163 | 164 | ||
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 | |
167 | 166 | ||
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 | |
171 | 168 | ||
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 | |
173 | 171 | ||
174 | - | ( | |
172 | + | (1) took reasonable steps to destroy each visual representation; or 16 | |
175 | 173 | ||
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 | |
178 | 175 | ||
179 | - | ||
176 | + | 11–208.2. 18 | |
180 | 177 | ||
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 | |
182 | 183 | ||
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 | |
184 | 186 | ||
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 | |
190 | 190 | ||
191 | - | ( | |
192 | - | ||
191 | + | (II) EACH VIDEO, ELECTRONIC VIDEO , FILM, VIDEOTAPE, OR 29 | |
192 | + | SIMILAR VIDEO DEPICT ION SHALL BE DEEMED TO BE TWENTY IMAGES . 30 | |
193 | 193 | SENATE BILL 65 5 | |
194 | 194 | ||
195 | 195 | ||
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 | |
199 | 198 | ||
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 | |
202 | 202 | ||
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 | |
205 | 207 | ||
206 | - | ( | |
207 | - | ||
208 | - | YEARS. | |
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 | |
209 | 211 | ||
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 | |
214 | 215 | ||
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 | |
218 | 220 | ||
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 |