Report Title:

Electronic Enticement; Electronic Display; Children

 

Description:

Creates two new offenses involving sexual predation of minors; amends existing offenses to expand conduct covered and impose mandatory sentences.  Eff. 7/1/2050.  (SD1)


HOUSE OF REPRESENTATIVES

H.B. NO.

3040

TWENTY-FOURTH LEGISLATURE, 2008

H.D. 1

STATE OF HAWAII

S.D. 1

 

 

 

 

 

A BILL FOR AN ACT


 

 

RELATING TO PUBLIC SAFETY.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  This Act shall be known as the "Child and Adult Protection and Safety Act of 2008."

     SECTION 2.  Chapter 707, Hawaii Revised Statutes, is amended by adding to part VI two new sections to be appropriately designated and to read as follows:

     "§707-A  Electronic enticement of a child in the third degree.  (1)  Any person who knowingly uses a computer online service, internet service, or any other device capable of electronic data storage or transmission to solicit, lure, or entice, or attempt to solicit, lure, or entice:

    (a)   A minor known by the person to be under the age of eighteen years;

    (b)   Another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

    (c)   Another person who represents that person to be under the age of eighteen years,

to engage in sexual conduct with intent to promote or facilitate the commission of another covered offense, as defined in section 846E-1, and who agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years, is guilty of electronic enticement of a child in the third degree.

     (2)  Electronic enticement of a child in the third degree is a misdemeanor.

     (3)  Each separate use of a computer online service, internet service, or any other device capable of electronic data storage or transmission wherein an offense described in this section is committed may be charged as a separate offense.

     (4)  As used in this section, "sexual conduct" means acts of sexual penetration, sexual contact, or masturbation.

     §707-B  Indecent electronic display to a child.  (1)  Any person who intentionally masturbates or intentionally exposes the genitals in a lewd or lascivious manner live over a computer online service, internet service, or local bulletin board service and who knows or should know or has reason to believe that the transmission is viewed on a computer or other electronic device by:

    (a)   A minor known by the person to be under the age of eighteen years;

    (b)   Another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

    (c)   Another person who represents that person to be under the age of eighteen years,

is guilty of indecent electronic display to a child.

     (2)  Indecent electronic display to a child is a class C felony."

     SECTION 3.  Section 706-606.5, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

     "(1)  Notwithstanding section 706-669 and any other law to the contrary, any person convicted of murder in the second degree, any class A felony, any class B felony, or any of the following class C felonies:  section 188-23 relating to possession or use of explosives, electrofishing devices, and poisonous substances in state waters; section 386-98(d)(1) relating to fraud violations and penalties; section 431:10A‑131(b)(2) relating to insurance fraud; section 431:10C‑307.7(b)(2) relating to insurance fraud; section 432:1‑106(b)(2) relating to insurance fraud; section 432D‑18.5(b)(2) relating to insurance fraud; section 707-703 relating to negligent homicide in the second degree; section 707-711 relating to assault in the second degree; section 707‑713 relating to reckless endangering in the first degree; section 707-716 relating to terroristic threatening in the first degree; section 707-721 relating to unlawful imprisonment in the first degree; section 707-732 relating to sexual assault or rape in the third degree; section 707-752 relating to promoting child abuse in the third degree; section 707-757 relating to electronic enticement of a child in the second degree; section 707-B relating to indecent electronic display to a child; section 707-766 relating to extortion in the second degree; section 708-811 relating to burglary in the second degree; section 708-821 relating to criminal property damage in the second degree; section 708-831 relating to theft in the first degree as amended by Act 68, Session Laws of Hawaii 1981; section 708-831 relating to theft in the second degree; section 708-835.5 relating to theft of livestock; section 708-836 relating to unauthorized control of propelled vehicle; section 708-839.8 relating to identity theft in the third degree; section 708-839.55 relating to unauthorized possession of confidential personal information; section 708-852 relating to forgery in the second degree; section 708-854 relating to criminal possession of a forgery device; section 708-875 relating to trademark counterfeiting; section 710-1071 relating to intimidating a witness; section 711-1103 relating to riot; section 712-1203 relating to promoting prostitution in the second degree; section 712-1221 relating to gambling in the first degree; section 712-1224 relating to possession of gambling records in the first degree; section 712-1243 relating to promoting a dangerous drug in the third degree; section 712‑1247 relating to promoting a detrimental drug in the first degree; section 846E-9 relating to failure to comply with covered offender registration requirements; section 134-7 relating to ownership or possession of firearms or ammunition by persons convicted of certain crimes; section 134-8 relating to ownership, etc., of prohibited weapons; section 134-9 relating to permits to carry, or who is convicted of attempting to commit murder in the second degree, any class A felony, any class B felony, or any of the class C felony offenses enumerated above and who has a prior conviction or prior convictions for the following felonies, including an attempt to commit the same: murder, murder in the first or second degree, a class A felony, a class B felony, any of the class C felony offenses enumerated above, or any felony conviction of another jurisdiction, shall be sentenced to a mandatory minimum period of imprisonment without possibility of parole during such period as follows:

    (a)   One prior felony conviction:

         (i)  Where the instant conviction is for murder in the second degree or attempted murder in the second degree--ten years;

        (ii)  Where the instant conviction is for a class A felony--six years, eight months;

       (iii)  Where the instant conviction is for a class B felony--three years, four months;

        (iv)  Where the instant conviction is for a class C felony offense enumerated above--one year, eight months;

    (b)   Two prior felony convictions:

         (i)  Where the instant conviction is for murder in the second degree or attempted murder in the second degree--twenty years;

        (ii)  Where the instant conviction is for a class A felony--thirteen years, four months;

       (iii)  Where the instant conviction is for a class B felony--six years, eight months;

        (iv)  Where the instant conviction is for a class C felony offense enumerated above--three years, four months;

    (c)   Three or more prior felony convictions:

         (i)  Where the instant conviction is for murder in the second degree or attempted murder in the second degree--thirty years;

        (ii)  Where the instant conviction is for a class A felony--twenty years;

       (iii)  Where the instant conviction is for a class B felony--ten years;

        (iv)  Where the instant conviction is for a class C felony offense enumerated above--five years."

     SECTION 4.  Section 707-751, Hawaii Revised Statutes, is amended to read as follows:

     "§707-751  Promoting child abuse in the second degree.  (1)  A person commits the offense of promoting child abuse in the second degree if, knowing or having reason to know its character and content, the person:

    (a)   Disseminates child pornography;

    (b)   Reproduces child pornography with intent to disseminate;

    (c)   Disseminates any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography; [or]

    (d)   Disseminates any pornographic material [which] that employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct[.]; or

    (e)   Possesses ten or more images of any form of child pornography, and the content of at least one image contains one or more of the following:

         (i)  A minor who is younger than the age of twelve;

        (ii)  Sadomasochistic abuse of a minor;

       (iii)  Sexual penetration of a minor; or

        (iv)  Bestiality involving a minor.

     (2)  As used in this section:

     "Child pornography" means any pornographic visual representation, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexual conduct, if:

    (a)   The pornographic production of such visual representation involves the use of a minor engaging in sexual conduct; or

    (b)   The pornographic visual representation has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct.

     "Community standards" means the standards of the State.

     "Computer" shall have the same meaning as in section 708‑890.

     "Disseminate" means to publish, sell, distribute, transmit, exhibit, present material, mail, ship, or transport by any means, including by computer, or to offer or agree to do the same.

     "Lascivious" means tending to incite lust, to deprave the morals in respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards.

     "Material" means any printed matter, visual representation, or sound recording and includes, but is not limited to, books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, and tape or wire recordings.

     "Minor" means any person less than eighteen years old.

     "Pornographic" shall have the same meaning as in section 712-1210.

     "Sadomasochistic abuse" means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.

     "Sexual conduct" means acts of masturbation, homosexuality, lesbianism, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor.

     "Visual representation" refers to, but is not limited to, undeveloped film and videotape, and data stored on computer disk or by electronic means that are capable of conversion into a visual image.

     (3)  The fact that a person engaged in the conduct specified by this section is prima facie evidence that the person engaged in that conduct with knowledge of the character and content of the material.  The fact that the person who was employed, used, or otherwise contained in the pornographic material was at that time, a minor, is prima facie evidence that the defendant knew the person to be a minor.

     (4)  Promoting child abuse in the second degree is a class B felony.

     (5)  Notwithstanding any law to the contrary, a person convicted of promoting child abuse in the second degree shall be sentenced to an indeterminate term of imprisonment as provided by law with a mandatory minimum term of imprisonment of five years, unless a greater mandatory minimum term is authorized by law."

     SECTION 5.  Section 707-752, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§707-752[]]  Promoting child abuse in the third degree.  (1)  A person commits the offense of promoting child abuse in the third degree if, knowing or having reason to know its character and content, the person possesses:

    (a)   Child pornography;

    (b)   Any book, magazine, periodical, film, videotape, computer disk, electronically stored data, or any other material that contains an image of child pornography; or

    (c)   Any pornographic material that employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct.

     (2)  As used in this section:

     "Child pornography" means any pornographic visual representation, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexual conduct, if:

    (a)   The pornographic production of the visual representation involves the use of a minor engaging in sexual conduct; or

    (b)   The pornographic visual representation has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct.

     "Community standards" means the standards of the State.

     "Computer" shall have the same meaning as in section 708‑890.

     "Lascivious" means tending to incite lust, to deprave the morals with respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards.

     "Material" means any printed matter, visual representation, or sound recording and includes, but is not limited to, books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, and tape or wire recordings.

     "Minor" means any person less than eighteen years old.

     "Pornographic" shall have the same meaning as in section 712-1210.

     "Sadomasochistic abuse" means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.

     "Sexual conduct" means acts of masturbation, homosexuality, lesbianism, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor.

     "Visual representation" includes but is not limited to undeveloped film and videotape and data stored on computer disk or by electronic means that are capable of conversion into a visual image.

     (3)  The fact that a person engaged in the conduct specified by this section is prima facie evidence that the person engaged in that conduct with knowledge of the character and content of the material.  The fact that the person who was employed, used, or otherwise contained in the pornographic material was, at that time, a minor is prima facie evidence that the defendant knew the person to be a minor.

     (4)  Promoting child abuse in the third degree is a class C felony.

     (5)  Notwithstanding any law to the contrary, if a person convicted of promoting child abuse in the third degree is sentenced to probation rather than an indeterminate term of imprisonment, the terms and conditions of probation shall include, but not be limited to, a term of imprisonment of one year."

     SECTION 6.  Section 707-756, Hawaii Revised Statutes, is amended to read as follows:

     "§707-756  Electronic enticement of a child in the first degree.  (1)  Any person who, using a computer or any other electronic device:

    (a)   Intentionally or knowingly communicates:

         (i)  With a minor known by the person to be under the age of eighteen years;

        (ii)  With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

       (iii)  With another person who represents that person to be under the age of eighteen years; and

    (b)   With the intent to promote or facilitate the commission of a felony:

         (i)  That is a murder in the first or second degree;

        (ii)  That is a class A felony; or

       (iii)  That is [an] another covered offense as defined in section 846E-1[;],

          agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and

    (c)   Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time[;],

is guilty of electronic enticement of a child in the first degree.

     (2)  Electronic enticement of a child in the first degree is a class B felony.  Notwithstanding any law to the contrary, [if a person sentenced under this section is sentenced to probation rather than] a person convicted of electronic enticement of a child in the first degree shall be sentenced to an indeterminate term of imprisonment[, the terms and conditions of probation shall include, but not be limited to, a term of imprisonment of one year.] as provided by law."

     SECTION 7.  Section 707-757, Hawaii Revised Statutes, is amended to read as follows:

     "§707-757  Electronic enticement of a child in the second degree.  (1)  Any person who, using a computer or any other electronic device:

    (a)   Intentionally or knowingly communicates:

         (i)  With a minor known by the person to be under the age of eighteen years;

        (ii)  With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

       (iii)  With another person who represents that person to be under the age of eighteen years; and

    (b)   With the intent to promote or facilitate the commission of a felony[,] or another covered offense as defined in section 846E-1, agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and

    (c)   Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time;

is guilty of electronic enticement of a child in the second degree.

     (2)  Electronic enticement of a child in the second degree is a class C felony.  Notwithstanding any law to the contrary, if a person sentenced under this section is sentenced to probation rather than an indeterminate term of imprisonment, the terms and conditions of probation shall include, but not be limited to, a term of imprisonment of one year."

     SECTION 8.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 9.  In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 10.  If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 11.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 12.  This Act shall take effect on July 1, 2050.