HCS SS#2 SCS SB 757 & 602 -- PROTECTION OF CHILDREN
SPONSOR: Maxwell (Scheve)
COMMITTEE ACTION: Voted "do pass" by the Committee on Civil and
Administrative Law by a vote of 17 to 0.
This substitute makes many changes in the law governing the protection of
children. In its main provisions, the substitute:
(1) Requires elementary and secondary public schools that provide Internet
access to equip their computers with software that will filter materials
which are harmful to minors. School board members or school employees
willfully neglecting to perform these duties will be guilty of a class A
misdemeanor (Section 182.827.1, RSMo);
(2) Requires public libraries providing public access to computers and the
Internet to use filtering software or, by January 1, 2001, implement a
policy restricting minors' access to harmful material (Section 182.827.2);
(3) Adds the Jefferson County Child Assessment Center to the list of
assessment centers that are to be funded by the Department of Social
Services (Section 210.001);
(4) Clarifies that a telephone call to the child abuse hotline constitutes
a report that must be recorded in the central registry maintained by the
Division of Family Services (Section 210.109.3(7));
(5) Requires medical examiners and coroners to notify the division within
24 hours in child fatality cases where the child is not under the medical
supervision of the child's attending physician (Section 210.115.5);
(6) Adds possession of child pornography and the newly created crime of
furnishing child pornography to a minor to the list of offenses which
require immediate notification of law enforcement. Local law enforcement
must assist the local Division of Family Services office in an
investigation on such cases or submit a written explanation of why it is
unable to assist, within 24 hours (Section 210.145.3);
(7) Requires local law enforcement, in cases where the child is in danger
of serious physical harm, to take all necessary steps to facilitate direct
observation of the child (Section 210.145.4);
(8) Requires the appointment of a Chief Investigator for each local
Division of Family Services office and, on cases involving multiple
incidents with the same child, the chief investigator must directly observe
the child. If such a child attends a non-public school, the chief
investigator must notify the school principal of the investigation (Section
210.145.5);
(9) Requires the division to provide written notice to local law
enforcement before terminating an investigation (Section 210.145.10);
(10) Repeals the provision requiring the division to include within its
records all facts ascertained during an investigation, including any
evidence that does not support the division's determination (Section
210.145.13);
(11) Allows a person to request information from the division on any case
that the person was required to report. The director of the division will
have discretion on what information to release, based upon the reporter's
ability to assist the child or the possibility of harm to the child or
others. The division must make information about the final disposition of
the case available to the person within 5 days of the completion of the
investigation (Section 210.145.13);
(12) Increases, from 5 years to 10 years, the length of time investigation
reports must be maintained for unsubstantiated cases originated by a
mandated reporter. For unsubstantiated cases originating from other
sources, the length of time is shortened to 2 years (Section 210.152.1(2));
(13) Requires the local child fatality review panel to review all deaths
(not just "suspicious" deaths) of children under the age of 18 that meet
the guidelines set by the Department of Social Services. In addition, the
panel has discretion to review any child death reported to it by the
medical examiner or coroner (Section 210.192.3);
(14) Requires the state technical assistance team to submit findings and
recommendations at least once a year to the legislature, as well as
providing copies to any local juvenile officers and to the chairmen of the
local child fatality review panel (Section 210.195.3);
(15) Allows prior inconsistent statements of any witness testifying in any
criminal trial to be received as substantive evidence. Currently, this
provision is limited to prosecutions for offenses against the person,
sexual offenses, or offenses against the family (Section 491.074);
(16) Adds child abuse to the list of crimes for which a court may not grant
probation (Section 559.115);
(17) Increases the penalty for first degree child molestation from a class
C felony to a class B felony. The substitute also increases the penalty to
a class A felony when the defendant has a prior conviction of a sex offense
or displays a deadly weapon or when the offense is committed as part of a
ritual. In addition, the substitute increases the age of the victim (from
11 or younger to 13 or younger) as an element of the offense (Section
566.067);
(18) Raises (from 13 to 16) the age of the victim as an element of the
offense of child molestation in the second degree (Section 566.068);
(19) Revises the definition of "obscene" so as to include a "reasonable
person" standard in determining whether the material lacks serious
literary, artistic, political, or scientific value. In addition, the
substitute adds "reproducing" to the definition of "promote" as it relates
to child pornography (Section 573.010);
(20) Adds the act of distributing obscene material via a computer network
or the Internet to the crime of promoting obscenity in the first degree, if
the defendant made the material available to a specific person knowing that
the person is a minor (Section 573.020);
(21) Creates the crime of sexual exploitation of a minor. A defendant
commits the crime if he or she records or otherwise creates child
pornography or obscene material with a minor. The penalty is a class B
felony, unless the minor is 12 or younger, in which case it is a class A
felony (Section 573.024);
(22) Changes the crime of promoting child pornography in the first degree
so as to include possession with the intent to promote obscene material
that portrays "what appears to be a child under the age of 13" as a
participant or observer of sexual conduct. Further, if the defendant knows
the child is under the age of 18, the offense is a class B felony (Section
573.025). The substitute also changes the crime of promoting child
pornography in the second degree using the same elements, except the child
must be under the age of 18, rather than 13. When the defendant knows the
person is under 18, it becomes a class C felony (Section 573.035);
(23) Changes the crime of possession of child pornography so as to include
the possession of obscene material that has a person who "appears to be"
under the age of 18 as an observer or participant of sexual conduct
(Section 573.037);
(24) Creates the State Technical Assistance Team, which will assist in the
investigation of child abuse, child neglect, child sexual abuse, child
exploitation, or child fatality cases, upon the request of local law
enforcement. The team will prioritize cases for which more than one report
has been received. The Director of the Division of Family Services will be
held accountable for cases reported and filed with the division. Team
members must have training to be peace officers. If authorized by local law
enforcement, team members will have arrest powers. Reports of the team and
of local law enforcement, including arrest records, will be available in
the same manner as set forth in Sections 610.100 to 610.200 (Section
660.520); and
(25) Creates a pilot program to be known as the "Jackson County Child Abuse
and Neglect Response Team," which will conduct all child abuse and neglect
hotline evaluations, assessments, and investigations in Jackson County for
a 5-year trial period. The team will be composed of representatives from
the local office of the Division of Family Services, the Jackson County
Family Court, the Jackson County Prosecutor's Office, the Kansas City
Police Department, and several other child protection organizations. The
team will be housed in existing offices of the division, which will
coordinate the allocation of personnel that may be offered from the other
response team members' agencies and private organizations.
FISCAL NOTE: Estimated Cost to General Revenue Fund exceeds $379,425 in FY
2001, exceeds $427,028 in FY 2002, and exceeds $428,985 in FY 2003.
PROPONENTS: Supporters say that this bill will require school officials and
other mandated reporters to contact law enforcement when they merely
suspect child abuse or neglect. The existing law is unclear, which causes
these officials to be very slow in contacting law enforcement. The bill
will strengthen the partnership between law enforcement and the Division of
Family Services so that they are better prepared to prevent abusive
situations from escalating after they are first discovered. Law enforcement
will be required to say in writing, within 24 hours, why they are unable to
assist in any given incident. The goal is investigation of 100% of those
reports that show any evidence at all to substantiate the claim.
Lengthening the time that records are kept on those unsubstantiated reports
made by mandated reporters will allow the division to catch those repeat
offenders who have slipped through the cracks in the past.
Testifying for the bill were Senator Maxwell; and Division of Family
Services.
OPPONENTS: Those who oppose the bill say that the filtering systems for
computers available now do not perform properly, often blocking protected
speech and sometimes allowing in obscene material. The state can limit the
people's access to information only if it does so in the least restrictive,
most narrowly tailored fashion. Filtering systems currently available do
not meet that standard.
Testifying against the bill was American Civil Liberties Union.
Richard Smreker, Legislative Analyst