HOUSE BILL No. 5730 April 2, 1998, Introduced by Reps. Schermesser, DeHart, Hale, Schauer, Kelly, Mans, Harder, Goschka, Scott, Parks and Raczkowski and referred to the Committee on Judiciary. A bill to amend 1931 PA 328, entitled "The Michigan penal code," by amending section 145c (MCL 750.145c), as amended by 1994 PA 444. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 145c. (1) As used in this section: 2 (a) "Child" meansa personAN INDIVIDUAL who is less than 3 18 years of age and is not emancipated by operation of law as 4 provided insection 4(2) of Act No. 293 of the Public Acts of51968, as amended, being section 722.4 of the Michigan Compiled6Laws1968 PA 293, MCL 722.1 TO 722.6. 7 (b) "Commercial filmor photographic printprocessor" 8 means a person orhis or herTHE PERSON'S employee who, for 9 compensation, develops exposed photographic film into movie 04853'97 TVD 2 1 films, negatives, slides, or prints; makes prints from negatives 2 or slides; or duplicates movie films or videotapes. 3 (c) "Erotic fondling" means touchinga person'sAN 4 INDIVIDUAL'S clothed or unclothed genitals, pubic area, buttocks, 5 or,if thepersonINDIVIDUAL is female, breasts, or if the 6personINDIVIDUAL is a child, the developing or undeveloped 7 breast area, for the purpose of real or simulated overt sexual 8 gratification or stimulation of 1 or more of thepersons9 INDIVIDUALS involved. Erotic fondling does not include physical 10 contact, even if affectionate, that is not for the purpose of 11 real or simulated overt sexual gratification or stimulation of 1 12 or more of thepersonsINDIVIDUALS involved. 13 (d) "Erotic nudity" means the lascivious exhibition of the 14 genital, pubic, or rectal area of anypersonINDIVIDUAL. As 15 used in this subdivision, "lascivious" means wanton, lewd, and 16 lustful and tending to produce voluptuous or lewd emotions. 17 (e) "Listed sexual act" means sexual intercourse, erotic 18 fondling, sadomasochistic abuse, masturbation, passive sexual 19 involvement, sexual excitement, or erotic nudity. 20 (f) "Masturbation" means the real or simulated touching, 21 rubbing, or otherwise stimulating ofa person'sAN INDIVIDUAL'S 22 own clothed or unclothed genitals, pubic area, buttocks, or,23 if thepersonINDIVIDUAL is female, breasts, or if theperson24 INDIVIDUAL is a child, the developing or undeveloped breast area, 25 either by manual manipulation or self-induced or with an artifi- 26 cial instrument, for the purpose of real or simulated overt 27 sexual gratification or arousal of the person. 04853'97 3 1 (g) "Passive sexual involvement" means an act, real or 2 simulated, that exposes anotherpersonINDIVIDUAL to or draws 3 anotherperson'sINDIVIDUAL'S attention to an act of sexual 4 intercourse, erotic fondling, sadomasochistic abuse, masturba- 5 tion, sexual excitement, or erotic nudity because of viewing any 6 of these acts or because of the proximity of the act to that 7personINDIVIDUAL, for the purpose of real or simulated overt 8 sexual gratification or stimulation of 1 or more of thepersons9 INDIVIDUALS involved. 10 (h) "Child sexually abusive activity" means a child engaging 11 in a listed sexual act. 12 (i) "Child sexually abusive material" means a developed or 13 undeveloped photograph, film, slide, electronic visual image, 14 computer diskette, or sound recording of a child engaging in a 15 listed sexual act; a book, magazine, or other visual or print 16 medium containing such a photograph, film, slide, electronic 17 visual image, or sound recording; oranyA reproduction, copy, 18 or print of such a photograph, film, slide, electronic visual 19 image, book, magazine, other visual or print medium, or sound 20 recording. 21 (j) "Sadomasochistic abuse" means either of the following: 22 (i) Flagellation or torture, real or simulated, for the pur- 23 pose of real or simulated sexual stimulation or gratification, by 24 or upona personAN INDIVIDUAL. 25 (ii) The condition, real or simulated, of being fettered, 26 bound, or otherwise physically restrained for sexual stimulation 27 or gratification ofa personAN INDIVIDUAL. 04853'97 4 1 (k) "Sexual excitement" means the condition, real or 2 simulated, of human male or female genitals in a state of real or 3 simulated overt sexual stimulation or arousal. 4 (l) "Sexual intercourse" means intercourse, real or simulat- 5 ed, whether genital-genital, oral-genital, anal-genital, or 6 oral-anal, whether betweenpersonsINDIVIDUALS of the same or 7 opposite sex,orbetween a human and an animal, or with an 8 artificial genital. 9 (2) A person who persuades, induces, entices, coerces, 10 causes, or knowingly allows a child to engage in a child sexually 11 abusive activity for the purpose of producinganychild sexu- 12 ally abusive material,or a person who arranges for, produces, 13 makes, or finances, or a person who attempts,orprepares, or 14 conspires to arrange for, produce, make, or finance,anychild 15 sexually abusive activity or child sexually abusive material is 16 guilty of a felony,punishable by imprisonment for not more 17 than 20 years,or a fine of not more than $100,000.00, or 18 both, if that person knows, has reason to know, or should reason- 19 ably be expected to know that the child is a child, or that 20 person has not taken reasonable precautions to determine the age 21 of the child. 22 (3) A person who distributes or promotes;, orfinances 23 the distribution or promotion of;, orreceives for the purpose 24 of distributing or promoting;,or conspires, attempts, or pre- 25 pares to distribute, receive, finance, or promoteanychild 26 sexually abusive material or child sexually abusive activity is 27 guilty of a felony,punishable by imprisonment for not more 04853'97 5 1 than 7 years,or a fine of not more than $50,000.00, or both, 2 if that person knows, has reason to know, or should reasonably be 3 expected to know that the child is a child. This subsection does 4 not apply to the persons described in section 7 ofAct No. 3435of the Public Acts of 1984, being section 752.367 of the Michigan6Compiled Laws1984 PA 343, MCL 752.367. 7 (4) A person who knowingly possessesanychild sexually 8 abusive material is guilty of a misdemeanor punishable by impris- 9 onment for not more than 1 year,or a fine of not more than 10 $10,000.00, or both, if that person knows, has reason to know, or 11 should reasonably be expected to know the child is a child, or 12 that person has not taken reasonable precautions to determine the 13 age of the child. This subsection does not apply to any of the 14 following: 15 (a) A person described in section 7 ofAct No. 343 of the16Public Acts of 19841984 PA 343, MCL 752.367, or to a commercial 17 filmor photographic printprocessor actingpursuant toIN 18 COMPLIANCE WITH subsection (6). 19 (b) A police officer acting within the scope of his or her 20 duties as a police officer. 21 (c) An employee or contract agent of the department of 22 social services acting within the scope of his or her duties as 23 an employee or contract agent. 24 (d) A judicial officer or judicial employee acting within 25 the scope of his or her duties as a judicial officer or judicial 26 employee. 04853'97 6 1 (e) A party or witness in a criminal or civil proceeding 2 acting within the scope of that criminal or civil proceeding. 3 (f) A physician, psychologist, limited license psychologist, 4 professional counselor, or registered nurse licensed under the 5 public health code,Act No. 368 of the Public Acts of 1978,6being sections 333.1101 to 333.25211 of the Michigan Compiled7Laws1978 PA 368, MCL 333.1101 TO 333.25211, acting within the 8 scope of practice for which he or she is licensed. 9 (g) A social worker registered in this state under article 10 16 of the occupational code,Act No. 299 of the Public Acts of111980, being sections 339.1601 to 339.1610 of the Michigan12Compiled Laws1980 PA 299, MCL 339.1601 TO 339.1610, acting 13 within the scope of practice for which he or she is registered. 14 (5) Expert testimony as to the age of the child used ina15 child sexually abusive material or a child sexually abusive 16 activity is admissible as evidence in court and may be a legiti- 17 mate basis for determining age, if age is not otherwise proven. 18 (6)If aA commercial filmor photographic print proces-19sor reports to the local prosecuting attorney his or her knowl-20edge or observationPROCESSOR WHO HAS KNOWLEDGE OR OBSERVES, 21 within the scope ofhis or herTHE PROCESSOR'S professional 22 capacity or employment,ofa film, photograph, movie film, vid- 23 eotape, negative, or slide depictinga personAN INDIVIDUAL 24 that the processor has reason to know or reason to believe is a 25 child engaged in a listed sexual act; furnishes a copy of the26film, photograph, movie film, videotape, negative, or slide to27the prosecuting attorney; or keeps theSHALL IMMEDIATELY MAKE AN 04853'97 7 1 ORAL REPORT OF THAT KNOWLEDGE OR OBSERVATION TO THE PROSECUTING 2 ATTORNEY. THE COMMERCIAL FILM PROCESSOR SHALL ALSO SUBMIT A 3 WRITTEN REPORT TO THE PROSECUTING ATTORNEY WITH A COPY OF THE 4 FILM, PHOTOGRAPH, MOVIE FILM, VIDEOTAPE, NEGATIVE, OR SLIDE 5 ATTACHED TO THE REPORT WITHIN 72 HOURS AFTER GAINING KNOWLEDGE OF 6 OR OBSERVING THE FILM, PHOTOGRAPH, MOVIE FILM, VIDEOTAPE, NEGA- 7 TIVE, OR SLIDE. THE COMMERCIAL FILM PROCESSOR SHALL DEAL WITH 8 THE ORIGINAL film, photograph, movie film, videotape, negative, 9 or slide according to the prosecuting attorney's instructions, 10 AND THE PROCESSOR IS IMMUNE FROM CRIMINAL LIABILITY THAT MIGHT 11 OTHERWISE BE INCURRED BY COMPLYING WITH THOSE INSTRUCTIONS. A 12 PERSON WHO FAILS TO REPORT AS REQUIRED BY THIS SUBSECTION IS 13 GUILTY OF A MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE 14 THAN 90 DAYS OR A FINE OF NOT MORE THAN $100.00, OR BOTH. IF A 15 COMMERCIAL FILM PROCESSOR COMPLIES WITH THIS SUBSECTION, both of 16 the followingshallapply: 17 (a) The identity of the processorshall beIS confiden- 18 tial, subject to disclosure only withhis or herTHE 19 PROCESSOR'S consent or by judicial process. 20 (b) If the processor acted in good faith,he or she shall21beTHE PROCESSOR IS immune from civil liability that might oth- 22 erwise be incurred byhis or herTHE PROCESSOR'S actions. This 23 immunity extends only to acts described in this subsection. THE 24 PROCESSOR IS PRESUMED TO HAVE ACTED IN GOOD FAITH. 25 (7) This section applies uniformly throughout the state and 26 all political subdivisions and municipalities in the state. 04853'97 8 1 (8) A local municipality or political subdivision shall not 2 enact ordinances, nor enforce existing ordinances, rules, or 3 regulations governing child sexually abusive activity or child 4 sexually abusive material as defined by this section. 04853'97 Final page. TVD