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NO. 41. AN ACT RELATING TO UNLAWFULLY SHELTERING AND AIDING A RUNAWAY CHILD.

(S.9)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. LEGISLATIVE INTENT

In sections 7 and 8 of this act, it is the intent of the general assembly to clarify Vermont law respecting the dissemination of indecent material to minors. The general assembly finds that the U.S. Constitution may impose certain requirements on the dissemination of indecent material to minors through electronic communication that do not apply when the dissemination occurs in the presence of a minor. Because Internet communication is often anonymous, a person may not be capable of accurately ascertaining the age of a person with whom they are communicating. Therefore, when dissemination of indecent material occurs outside the presence of a minor, section 8 of this act provides that a person cannot be charged with a crime without having actual knowledge that the recipient is a minor. Under section 7 of this act, no such knowledge is required when the dissemination occurs in the presence of a minor.

Sec. 2. 13 V.S.A. § 1311 is added to read:

§ 1311. unlawful SHELTERING; AIDING A RUNAWAY CHILD

(a) As used in this section:

(1) "Child’s residence" means:

(A) the residence of an unemancipated child’s parent, foster parent, guardian, legal custodian, parent lawfully exercising parent-child contact, or other person having legal or physical responsibility for the child;

(B) the residence where a child has been placed by the child’s parent, foster parent, guardian, legal custodian, parent lawfully exercising parent-child contact, or by the department of social and rehabilitation services or any other agency or department of the state; or

(C) any other lawfully authorized place of abode.

(2) "Runaway child" means an unemancipated child under 18 years of age, voluntarily absent from the child’s residence without the consent of his or her parent, foster parent, guardian, legal custodian, parent lawfully exercising parent-child contact, or other person having legal or physical responsibility for the child.

(3) "Shelter" means to provide a physical haven, home or lodging.

(b) A person commits the crime of unlawfully sheltering or aiding a runaway child if the person:

(1) knowingly shelters a runaway child;

(2) intentionally aids, helps or assists a child to become a runaway child; or

(3) knowingly takes, entices or harbors a runaway child, with the intent of committing a criminal act involving the child or with the intent of enticing or forcing the child to commit a criminal act.

(c) Exempt from the prohibitions of this section are:

(1) A shelter, or the directors, agents or employees of a shelter, designated by the commissioner of social and rehabilitation services pursuant to section 5512 of Title 33, provided that the requirements of section 5512(b) of Title 33 are satisfied.

(2) A person who has taken the child into custody pursuant to section 5510 of Title 33.

(d) It is a defense to a prosecution under this section that the defendant acted reasonably and in good faith to protect the child from imminent physical, mental or emotional harm.

(e) This section shall not apply unless the child’s parent, foster parent, guardian, legal custodian, parent lawfully exercising parent-child contact, or other person having legal or physical responsibility for the child has reported the child’s absence to a law enforcement agency.

(f) A law enforcement agency shall promptly notify the child’s parent, foster parent, guardian, legal custodian, parent lawfully exercising parent-child contact, or other person having legal or physical responsibility for the child when a runaway child has been located.

(g) A person who is convicted of a first violation of this section:

(1) with respect to sheltering a runaway child, shall, except as provided in subsection (h) of this section, be imprisoned not more than 30 days or fined not more than $500.00, or both;

(2) with respect to aiding, helping or assisting a child to become a runaway child, shall, except as provided in subsection (h) of this section, be imprisoned not more than one year or fined not more than $5,000.00, or both.

(h) A person who is convicted of a second or subsequent violation of this section, or who violates this section by transporting the child out of the state of Vermont, or who violates subdivision (b)(3) of this section, shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

Sec. 3. 20 V.S.A. § 1825 is amended to read:

§ 1825. MISSING PERSON COMPLAINTS REGARDING

UNEMANCIPATED MINORS

If a missing person complaint involves an unemancipated minor, including a runaway child as defined in section 1311 of Title 13, the law enforcement agency shall transmit the report, as soon as it is complete, to the department of public safety for inclusion in the national crime information center computer.

Sec. 4. 13 V.S.A. § 2406 is amended to read:

§ 2406. UNLAWFUL RESTRAINT IN THE SECOND DEGREE

(a) A person commits the crime of unlawful restraint in the second degree if the person:

(1) not being a relative of a person under the age of *[16]* 18, knowingly takes, entices, or harbors that person, without the consent of the person’s custodian, knowing that he or she has no right to do so; or

(2) knowingly takes or entices from lawful custody or harbors any mentally incompetent person, or other person entrusted by authority of law to the custody of another person or an institution, without the consent of the person or institution, knowing that he or she has no right to do so; or

(3) knowingly restrains another person.

(b) It is a defense to a prosecution under this section that the defendant acted reasonably and in good faith to protect the person from imminent physical *[danger]* or emotional danger.

(c) Unlawful restraint in the second degree is punishable by imprisonment for not more than five years or a fine of not more than $25,000.00, or both.

Sec. 5. 33 V.S.A. § 5510 is amended to read:

§ 5510. TAKING INTO CUSTODY

A child may be taken into custody:

(1) Pursuant to the laws of arrest of this state,

(2) Pursuant to an order of the juvenile court under the provisions of this chapter,

(3) By a law enforcement officer when *[he]* the officer has reasonable grounds to believe that the child is in immediate danger from his or her surroundings, and that *[his]* removal is necessary for *[his]* the child’s protection,

(4) By a law enforcement officer when *[he]* the officer has reasonable grounds to believe that the child has run away from his or her parents, foster parents, guardian, *[or]* legal custodian, parent lawfully exercising parent-child contact, or other person having legal or physical responsibility for the child.

Sec. 6. 33 V.S.A. § 5511 is amended to read:

§ 5511. RELEASE, SHELTER OR DELIVERY TO COURT

(a) The person taking a child alleged to be a delinquent child or a child in need of care or supervision into custody shall immediately and without first taking the child elsewhere:

(1) Release the child to his or her parents, guardian or custodian; or

(2) Deliver the child to the juvenile court and immediately file written notice thereof with the court, together with a statement of the reason for taking the child into custody*[; or]*.

*[

(3)]*(b) In the event that a law enforcement officer has reasonable grounds to believe that a child has run away from his or her parents, foster parents, guardian, *[or]* legal custodian, parent lawfully exercising parent-child contact, or other person having legal or physical responsibility for the child, the law enforcement officer *[may]* shall take and deliver the child to:

(1) his or her parents, foster parents, guardian, legal custodian, parent lawfully exercising parent-child contact, or person having legal or physical responsibility for the child; or

(2) any organization designated by the commissioner of social and rehabilitation services as qualified to assist children who have run away for the purpose of reuniting them with their parents, guardian or legal custodian.

Sec. 7. 13 V.S.A. § 2802 is amended to read:

§ 2802. DISSEMINATING INDECENT MATERIAL TO *[MINORS]* A MINOR IN THE PRESENCE OF THE MINOR

(a) No person may, with knowledge of its character and content, sell, lend, distribute or give away to a minor:

(1) Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image, including any such representation or image which is *[communicated, transmitted, or]* stored electronically, of a person or portion of the human body which depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors; or

(2) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in subdivision (1) of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse and which, taken as a whole, is harmful to minors.

(b) No person may, with knowledge of the character and content of a motion picture, show or other presentation which, in whole or in part, depicts nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors:

(1) Exhibit such a motion picture, show or other presentation to a minor; or

(2) Sell or give away to a minor an admission ticket or pass to premises whereon there is exhibited or to be exhibited such a motion picture, show or other presentation; or

(3) Admit a minor to premises whereon there is exhibited or to be exhibited such a motion picture, show or other presentation.

(c) This section shall apply only to acts occurring in the presence of the minor.

Sec. 8. 13 V.S.A. § 2802a is added to read:

§ 2802a. DISSEMINATING INDECENT MATERIAL TO A MINOR OUTSIDE THE PRESENCE OF THE MINOR

(a) No person may, with knowledge of its character and content, and with actual knowledge that the recipient is a minor, sell, lend, distribute or give away:

(1) any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image, including any such representation or image which is communicated, transmitted, or stored electronically, of a person or portion of the human body which depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors; or

(2) any book, pamphlet, magazine, printed matter, however reproduced, or sound recording which contains any matter enumerated in subdivision (1) of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse and which, taken as a whole, is harmful to minors.

(b) No person may, with actual knowledge that the recipient or viewer is a minor, and with knowledge of the character and content of a motion picture, show or other presentation, including any such motion picture, show or presentation which is communicated, transmitted, or stored electronically, which, in whole or in part, depicts nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors:

(1) exhibit such a motion picture, show or other presentation to a minor; or

(2) sell or give away to a minor an admission ticket or pass to premises whereon there is exhibited or to be exhibited such a motion picture, show or other presentation.

(c) This section shall only apply to acts occurring outside the presence of the minor.

Sec. 9. 13 V.S.A. § 2805 is amended to read:

§ 2805. PRESUMPTION AND DEFENSE

(a) A person who engages in conduct prohibited by sections 2802, 2802a, 2803, 2804, 2804a, or 2804b is presumed to do so with knowledge of the character and content of the material, or the motion picture, show or presentation exhibited or to be exhibited.

(b) In any prosecution arising under section 2802, 2802a, 2803 or 2804, it is an affirmative defense:

(1) That the minor as to whom the offense is alleged to have been committed exhibited to the accused a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that the minor was eighteen years of age or older; or

(2) That the defendant was in a parental or guardianship relationship with the minor; or that the minor was accompanied by a parent or legal guardian; or

(3) That the defendant was a bona fide school, museum or public library, or was a person acting in the course of his employment as an employee or official of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization;

* * *

Sec. 10. 13 V.S.A. § 2807 is amended to read:

§ 2807. PENALTY

A person who violates any provision of section 2802, 2802a, 2803, 2804, 2804a or 2804b shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

Approved: June 13, 2001