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ACT NO. 122

(S.226)

Sexual Exploitation of Children

This act criminalizes the possession of child pornography. Under prior law, only the promotion or transmission of child pornography was illegal. The act makes it a criminal offense to possess any visual depiction of sexual conduct by a child or of a clearly lewd exhibition of a child’s genitals or anus. The statute does not apply to paintings, drawings or nonvisual or written descriptions of sexual conduct, or if the depiction was possessed for a bona fide medical, psychological, social work, legislative, judicial or law enforcement purpose, or was being used for the educational or intended purpose of a school, museum or library. It is the state’s burden to prove that none of these exceptions apply. There are also two affirmative defenses upon which the defendant has the burden of proof. Thus, a person accused of this crime can prevail by proving that (1) the person had a good faith, reasonable belief that the child was at least 16 years old when the visual depiction was made; or (2) the person took good faith, reasonable steps to destroy or eliminate the depiction (for example, by deleting an e-mail).

The act also makes it a crime to use an electronic communication (such as an e-mail or a message to a chat room on the world wide web) to lure a child under the age of 16 to engage in a sexual act or in lewd and lascivious conduct.

Finally, the act expands the range of sexual conduct by children that is covered by the statutes prohibiting the use of a child in a sexual performance and the possession, promotion or transmission of child pornography.

Effective Date: July 1, 2000