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