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H.5

Introduced by   Representative Koch of Barre Town

Referred to Committee on

Date:

Subject:  Crimes; sexual exploitation of children; possession of child pornography

Statement of purpose:  This bill proposes to define the term lewd exhibition, and to remove the exemptions and affirmative defenses for schools, museums, and public libraries to the crimes of possession of child pornography and promoting a recording of sexual conduct by a child.

AN ACT RELATING TO SEXUAL EXPLOITATION OF CHILDREN AND POSSESSION OF CHILD PORNOGRAPHY

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

Sec. 1.  13 V.S.A. § 2821 is amended to read:

§ 2821.  DEFINITIONS

As used in this chapter:

(1)  “Child” means any person under the age of 16 years.

(2)  “Lewd exhibition” means any of the following:

(A)  A child’s nude image that is intended to arouse, appeal to, or gratify the lust, passions, or sexual desire of any person;

(B)  An image of a child that is intended to arouse, appeal to, or gratify the lust, passions, or sexual desire of any person that focuses on a child’s pubic area or anus, whether clothed or unclothed, or the nude breast of a post-pubescent female;

(C)  A child’s nude image that is intentionally located where a person would seek sexual gratification, including pornographic websites; or

(D)  A child’s nude image that has been altered to include real, drawn, or electronically produced images intended to elicit a sexual response in the viewer.  

(2)(3)  “Sexual conduct” means any of the following:

(A)  any conduct involving contact between the penis and the vulva, the penis and the penis, the penis and the anus, the mouth and the penis, the mouth and the anus, the vulva and the vulva, or the mouth and the vulva;

(B)  any intrusion, however slight, by any part of a person’s body or any object into the genital or anal opening of another with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desire of any person;

(C)  any intentional touching, not through the clothing, of the genitals, anus, or breasts of another with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desire of any person;

(D)  masturbation;

(E)  bestiality; or

(F)  sadomasochistic abuse for sexual purposes.

(3)(4)  “Performance” means:

(A)  an event which is photographed, filmed, or visually recorded; or

(B)  a play, dance, or other visual presentation or exhibition before an audience.

(4)(5)  “Sexual performance” means any performance or any part of a performance, which includes sexual conduct by a child.

(5)(6)  “Promote” means to procure, issue, manufacture, publish, sell, give, provide, lend, mail, deliver, distribute, disseminate, circulate, present, exhibit, advertise, or offer to do the same, by any means, including electronic transmission.   

Sec. 2.  13 V.S.A. § 2824 is amended to read:

§ 2824.  PROMOTING A RECORDING OF SEXUAL CONDUCT

(a)  No person may, with knowledge of the character and content, promote any photograph, film, or visual recording of sexual conduct by a child, or of a lewd exhibition of a child’s genitals or anus.  This subsection does not apply to paintings, drawings, or to non-visual nonvisual or written descriptions of sexual conduct.

(b)  In any prosecution arising under this section, the defendant may raise any of the following affirmative defenses:

(1)  that the recording was promoted for a bona fide medical, psychological, social work, legislative, judicial or law enforcement purpose, by or to a physician, psychologist, social worker, legislator, judge, prosecutor, law enforcement officer, or other person having such a bona fide interest in the subject matter that the photograph, film, or visual recording was promoted:

(A)  by a medical professional or licensed clinical social worker for the purpose of conducting therapy with sexual offenders or persons charged with offenses under this chapter, provided the child’s face and other identifying features are not shown;

(B)  by a law enforcement officer, judge, court official, prosecutor, legislator, or department for children and families employee, or by an employee of such organization, in connection with the performance of the person’s official duties; or

(C)  by a defense attorney, or an employee of the attorney with a bona fide reason to be involved in the defense, in connection with the legal defense of a person charged with an offense under this chapter.

(2)  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 an organization or of a retail outlet affiliated with and serving the educational or intended purpose of that school, museum or library.

(3)  that the defendant in good faith had a reasonable basis to conclude that the child in fact had attained the age of 16 when the recording was made.

Sec. 3.  13 V.S.A. § 2827 is amended to read:

§ 2827.  POSSESSION OF CHILD PORNOGRAPHY

(a)  No person shall, with knowledge of the character and content, possess any photograph, film, or visual depiction, including any depiction which is stored electronically, of sexual conduct by a child or of a clearly lewd exhibition of a child’s genitals or anus.  This subsection does not apply to paintings, drawings, or nonvisual or written descriptions of sexual conduct.

(b)  This section does not apply:

(1)  if the depiction was possessed for a bona fide medical, psychological, social work, legislative, judicial or law enforcement purpose, by a physician, psychologist, social worker, legislator, judge, prosecutor, law enforcement officer, or other person having such a bona fide interest in the subject matter;

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

(3)  to paintings, drawings, or nonvisual or written descriptions of sexual conduct.

(c)  In any prosecution arising under this section, the defendant may raise any of the following affirmative defenses, which shall be proven by a preponderance of the evidence:

(1)  that the depiction was possessed:

(A)  by a medical professional or licensed clinical social worker for the purpose of conducting therapy with sexual offenders or persons charged with offenses under this chapter, provided the child’s face and other identifying features are not shown;

(B)  by a law enforcement officer, judge, court official, prosecutor, legislator, or department for children and families employee, or by an employee of such organization, in connection with the performance of the person’s official duties;

(C)  by a defense attorney, or an employee of the attorney with a bona fide reason to be involved in the defense, in connection with the legal defense of a person charged with an offense under this chapter; or

(D)  by a person engaged in the act of confiscating and transporting directly to a law enforcement officer material described in subsection (a) of this section;

(2)  that the defendant in good faith had a reasonable basis to conclude that the child in fact had attained the age of 16 when the depiction was made;

(2)(3)  that the defendant in good faith took reasonable steps, whether successful or not, to destroy or eliminate the depiction.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us