SECOND REGULAR SESSION
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES HARRIS (23) (Sponsor), GEORGE, WILDBERGER, SCHOEMEHL, PAGE, DARROUGH AND KRAUS (Co-sponsors).
Read 1st time March 6, 2008 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal section 566.151, RSMo, and to enact in lieu thereof five new sections relating to the child predation prevention act of 2008, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Section 566.151, RSMo, is repealed and five new sections enacted in lieu thereof, to be known as sections 27.150, 27.155, 170.325, 566.081, and 566.082, to read as follows:
27.150. This act shall be known and may be cited as the "Child Predation Prevention Act of 2008".
27.155. 1. The attorney general shall appoint a special counsel for child exploitation prevention and interdiction within the office of attorney general.
2. The special counsel shall have the following duties:
(1) Coordinating the policies and strategies of the executive branch related to the prevention and investigation of child exploitation cases;
(2) Pursuing memorandums of understanding and other interagency agreements related to the prevention, investigation, and apprehension of individuals exploiting children, including seeking cooperation and collaboration with other state and federal agencies;
(3) Developing, providing, and coordinating technical assistance and training for state and local law enforcement agencies related to the prevention, investigation, and prosecution of child exploitation crimes;
(4) Developing, providing, and coordinating training and technical assistance to state and local law enforcement related to forensic computer examination and analysis;
(5) Developing and overseeing research programs related to child exploitation prevention;
(6) Directing and overseeing programs for child exploitation prevention and education, including programs related to Internet safety;
(7) Maintaining liaison with the judicial branches of the federal and state governments on matters relating to child exploitation;
(8) Providing information to the governor, general assembly, judiciary, local governments, and the general public on matters relating to child exploitation;
(9) Serving, at the request of the attorney general, as the general's representative on task forces, boards, committees, or commissions addressing policies or issues relating to child exploitation; and
(10) Providing technical assistance, coordination, training, and support to:
(a) Other components of state and local governments in efforts to develop policies and to enforce state laws relating to child exploitation cases, including the litigation of civil and criminal actions relating to enforcing such laws;
(b) Other federal, state, and local agencies in efforts to develop policy, provide technical assistance, and improve coordination among agencies carrying out efforts to eliminate child exploitation; and
(c) Agencies and organizations that provide support and assistance to victims of such exploitation and their families.
3. The special counsel, consistent with budgetary limitations, may hire or appoint such staff as may be required to carry out the duties described in this section. Such staff may include any number of positions designated as "Prosecutor for Child Protection", "Investigator for Child Protection", and "Supervised Officer for Child Protection".
170.325. 1. The department of elementary and secondary education shall propose model curriculum for educating children regarding child online safety, taking into consideration the curriculum on this subject developed by other states, as well as any other curricular materials suggested by education experts, child psychologists, or technology companies who work on child online safety issues. Topics shall include, but not be limited to, safe online communications, privacy protection, cyber-bullying, viewing inappropriate material, file sharing, and the importance of open communication with responsible adults.
2. The department of elementary and secondary education shall provide to each school district educational materials for parents regarding child online safety.
566.081. 1. (1) A person commits the crime of Internet sexual exploitation of a child if a person who is at least four years older than a child who is less than fifteen years of age persuades, solicits, coaxes, entices, or lures the child through communication via a computer network or system to:
(a) Expose or touch the child's own or another person's intimate parts while communicating with the person via a computer network or system; or
(b) Observe the person's intimate parts while communicating with the person via a computer network or system.
(2) It shall not be an affirmative defense to a prosecution for a violation of this subsection that the other person was a law enforcement officer posing as a child less than fifteen years of age.
(3) Internet sexual exploitation of a child is a class C felony.
2. (1) A person commits the crime of Internet luring of a child if a person who is more than four years older than a child who is less than fifteen years of age communicates a statement over the computer or computer network describing explicit sexual conduct and, in connection with the communication, makes a statement persuading or inviting the child to meet the person for any purpose.
(2) It shall not be an affirmative defense to this subsection that:
(a) A meeting did not occur; or
(b) The other person was a law enforcement officer posing as a child less than fifteen years of age.
(3) For purposes of this subsection, "in connection with" means communications that further, advance, promote, or have a continuity of purpose and may occur before, during, or after the invitation to meet.
(4) Internet luring of a child is a class D felony; except that Internet luring of a child is a class C felony if committed with the intent to meet the child for the purpose of engaging in sexual exploitation or sexual contact.
3. (1) A person who knowingly views over the Internet any visual depiction or copy thereof of a minor engaged in sexually explicit conduct is guilty of a class D felony.
(2) In a prosecution under this subsection, the trier of fact shall consider the title, text, and content of the visual depiction, as well as the Internet history, search terms, thumbnail images, downloading activity, expert computer forensic testimony, number of depictions of minors engaged in sexually explicit conduct, the defendant's access to and control over the electronic device, and its content upon which the depictions were found, and any other relevant evidence, in determining whether a person knowingly viewed the material.
(3) It shall be an affirmative defense to a charge under this subsection that the defendant promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof, reported the matter to a law enforcement agency and afforded the agency access to each visual depiction.
566.082. 1. For purposes of this section, "sexual offense involving a minor" means any crime that involves the possession, production, distribution, publication, or making of child pornography, the solicitation of a minor to engage in sexual conduct, a crime involving luring or enticing a minor to engage in illegal sexual activity, any other crime that places a convicted defendant on the state's sexual offender registry for an offense involving a minor, or an attempt to commit any such crimes. For purposes of this section, "conviction" includes a conviction, an adjudication of delinquency, and a finding of not guilty by reason of insanity.
2. If a person is charged with a sexual offense involving a minor, such charge shall create a rebuttable presumption that the person's liberty will constitute an unreasonable danger to the public and to children in the community, and where the presumption is not successfully rebutted, the person may be detained pending trial.
3. (1) All audio and visual equipment, computer equipment, electronic equipment, devices, software, storage media, and other personal property owned by the defendant and used in connection with a sexual offense involving a minor shall be subject to lawful seizure, impoundment, and forfeiture.
(2) In the case of an arrest for and conviction of a sexual offense involving a minor, the seizure and impoundment may be effectuated by a law enforcement officer and the forfeiture shall be effectuated by order of the court in which a conviction is obtained.
(3) If during supervised release or probation a person convicted of a sexual offense involving a minor is subject to periodic inspections or monitoring authorized under this section, or is subject to any other lawful investigation of the person's computer or device with Internet capability, and if such inspection, monitoring, or investigation yields any evidence of crimes, potential crimes, probation, or supervisory violations, or other conduct manifesting an intent to commit a sexual offense, including but not limited to a sexual offense involving a minor, or to engage in unlawful acts, the supervisor of such release or probation may seize and impound the person's property used to commit the acts in question, and the court or board of probation and parole may order the property's forfeiture.
(4) The court or board ordering the forfeiture shall dispose of the property as it deems proper, including awarding the property to the agency seizing such property or to a state agency for lawful purposes. A forfeiture under this section shall not extinguish the rights of any person without knowledge of the illegal or violative use of the property who is the lawful owner or has a valid and perfected lien on the property.
4. In addition to any condition imposed upon the release or probation, the court may order a person convicted of a sexual offense involving a minor to pay an amount no less than fifty dollars per month and no more than ten percent of the person's monthly income to offset:
(1) The cost to the state of any online monitoring imposed under this section;
(2) The cost to the state for any other enhanced monitoring imposed as a condition of release; and
(3) The person's obligation to the crime victims' compensation fund, established in section 595.045, RSMo, for the duration of the person's supervision.
To secure payment, the attorney general, the probation officer, or other supervisory officer may petition the court for garnishment of the person's wages. Such fee may be reduced or waived in cases of indigence upon application by the chief probation or supervisory officer to the sentencing court.
5. In the case of a person who has been convicted of a sexual offense involving a minor, the court may, in addition to any other disposition, issue an order:
(1) Prohibiting the person from accessing the Internet or using a computer or any other device with an Internet connection in the person's place of residence for five years after the person's release from physical custody, or for half of the person's initial sentence, whichever is greater;
(2) Requiring the person to submit to in-person or remote monitoring of the person's use of the Internet or of a computer or any other device with an Internet connection in the person's place of residence for a period of time deemed necessary to protect public safety, including, at the court's discretion, monitoring for life;
(3) Requiring the person to submit to the installation on the person's computer or other device with Internet capability, at the person's expense, one or more hardware or software systems capable of blocking or monitoring the person's Internet usage, to detect any tampering with such systems, and to automatically deliver electronically to a destination selected by the state the system's blocking, monitoring, and tamper-detection information;
(4) Requiring the person to maintain and upgrade such blocking, monitoring, and tamper-detection hardware or software at the person's expense for the duration of the blocking or monitoring term;
(5) Requiring the person to submit to periodic unannounced examinations of the person's computer or any other device with Internet capability by a probation officer, supervisory officer, law enforcement officer, or assigned computer specialist, including the retrieval and copying of all data from the computer or device and any internal or external peripherals and removal of such information, equipment, or device to conduct a more thorough inspection; and
(6) At the court's discretion, instructing the person's probation or supervisory officer to advise the person's employer of the importance of supervising the person's computer activities and of reporting potentially unlawful behavior.
6. In the case of a person who has been convicted of a sexual offense against a minor, the court may, in addition to any other disposition, issue an order:
(1) Prohibiting the person from accessing the Internet or using a computer or any other device with Internet capability at any location other than the person's place of residence without the prior written approval of, and subject to conditions specified by, the person's probation or supervisory officer; and
(2) Requiring the person to submit to any other restrictions necessary to effectuate such prohibition or conditions.
7. A prohibition on Internet usage imposed under subsection 5 or 6 of this section may be reduced or waived if, upon application by the chief probation or supervisory officer to the sentencing court, the court finds that, on balance, the risk of the person's recidivism is outweighed by the likelihood of substantial harm to the person's employment prospects, to the person's family, or to others who reside with the person. In reducing or waiving such a prohibition, the court may require monitoring of the person's use of the Internet or of a computer or any other device with an Internet connection for a period of time deemed necessary to protect public safety, including, at the court's discretion, monitoring for life.
8. Nothing in this section shall be construed to alter the ability of a chief probation or supervisory officer, or board to impose without a court order under other law or regulation comparable terms, including stricter terms, of probation or release on any person in state custody.
9. All agencies of the state, unless otherwise prohibited by law, shall respect and abide by any probationary and supervisory conditions imposed in another jurisdiction upon a person who enters the state and registers with the state's sexual offender registry and who in such other jurisdiction was convicted of a sexual offense against a minor. Within five business days after receiving notice of such conditions, the appropriate state agency shall issue any legal compliance request or seek any court order necessary to effectuate another jurisdiction's conditions of release. The attorney general shall take appropriate steps to facilitate other jurisdictions' enforcement of probationary or supervisory conditions imposed by this state under this section.
10. (1) A joint committee is hereby established to assess the technical feasibility, reliability, cost-effectiveness, constitutionality, and other implementation factors associated with monitoring the whereabouts of persons convicted of sexual crimes against children by radio-location technologies, such as, but not limited to, the global positioning system and terrestrial triangulation.
(2) The committee shall study:
(a) The use of active monitoring compared to the use of passive monitoring and the costs associated with each;
(b) The types of crimes for which active and passive monitoring should be required;
(c) The use of active and passive monitoring in other states;
(d) The appropriate staffing levels to administer active or passive monitoring; and
(e) The role of a law enforcement agency in supervising active or passive monitoring.
(3) The committee shall consist of the following members:
(a) Two victims' advocates, one of whom is appointed by the president pro tem of the senate and one of whom is appointed by the speaker of the house of representatives;
(b) Two members of the senate who are appointed by the president pro tem and minority leader of the senate;
(c) Two members of the house who are appointed by the speaker and minority leader of the house of representatives;
(d) Two judges appointed by the chief justice of the Missouri supreme court, with one judge from a county with a population of more than four hundred thousand inhabitants and one from a county with a population of less than four hundred thousand inhabitants;
(e) The attorney general, or the attorney general's designee;
(f) The director of the department of corrections, or the director's designee;
(g) Two chiefs of police or county sheriffs, with one appointed by the president pro tem of the senate and one appointed by the speaker of the house of representatives;
(h) Two probation officers appointed by the board of probation and parole, with one from a county with a population of more than four hundred thousand inhabitants and one from a county with a population of less than four hundred thousand inhabitants;
(i) One representative of the court system who has experience with the provision of probation services to be appointed by the state courts administrator.
(4) The president pro tem of the senate and the speaker of the house of representatives shall each select a co-chair of the committee.
(5) The committee may solicit comments from citizens, government officials, academics, advocates, private enterprise, and other experts in developing its plan of action and recommendations.
(6) The committee shall submit a written report regarding the committee's activities and recommendations on or before December 1, 2008, to the governor, the president pro tem of the senate, and the speaker of the house of representatives, and provide a copy of the report to the secretary of state and the state archivist.
[566.151. 1. A person at least twenty-one years of age or older commits the crime of enticement of a child if that person persuades, solicits, coaxes, entices, or lures whether by words, actions or through communication via the Internet or any electronic communication, any person who is less than fifteen years of age for the purpose of engaging in sexual conduct.
2. It is not an affirmative defense to a prosecution for a violation of this section that the other person was a peace officer masquerading as a minor.
3. Enticement of a child or an attempt to commit enticement of a child is a felony for which the authorized term of imprisonment shall be not less than five years and not more than thirty years. No person convicted under this section shall be eligible for parole, probation, conditional release, or suspended imposition or execution of sentence for a period of five calendar years.]
•