SENATE AMENDMENT
    Bill No. CS for CS for SB 144
    Amendment No. ___   Barcode 044792
                            CHAMBER ACTION
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11  Senator Geller moved the following amendment:
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13         Senate Amendment (with title amendment) 
14         Delete everything after the enacting clause
15  
16  and insert:  
17         Section 1.  Paragraph (g) of subsection (1) of section
18  827.071, Florida Statutes, is amended to read:
19         827.071  Sexual performance by a child; penalties.--
20         (1)  As used in this section, the following definitions
21  shall apply:
22         (g)  "Sexual conduct" means actual or simulated sexual
23  intercourse, deviate sexual intercourse, sexual bestiality,
24  masturbation, or sadomasochistic abuse; actual lewd exhibition
25  of the genitals; actual physical contact with a person's
26  clothed or unclothed genitals, pubic area, buttocks, or, if
27  such person is a female, breast, with the intent to arouse or
28  gratify the sexual desire of either party; or any act or
29  conduct which constitutes sexual battery or simulates that
30  sexual battery is being or will be committed.  A mother's
31  breastfeeding of her baby does not under any circumstance
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SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 constitute "sexual conduct." 2 Section 2. Section 847.001, Florida Statutes, is 3 amended to read: 4 847.001 Definitions.--As When used in this chapter, 5 the term: 6 (1) "Child pornography" means any image depicting a 7 minor engaged in sexual conduct. 8 (2)(1) "Computer" means an electronic, magnetic, 9 optical, electrochemical, or other high-speed data processing 10 device performing logical, arithmetic, or storage functions 11 and includes any data storage facility or communications 12 facility directly related to or operating in conjunction with 13 such device. The term also includes: any on-line service, 14 Internet service, or local bulletin board; any electronic 15 storage device, including a floppy disk or other magnetic 16 storage device; or any compact disc that has read-only memory 17 and the capacity to store audio, video, or written materials. 18 (3)(2) "Deviate sexual intercourse" means sexual 19 conduct between persons not married to each other consisting 20 of contact between the penis and the anus, the mouth and the 21 penis, or the mouth and the vulva. 22 (4)(3) "Harmful to minors" means that quality of any 23 reproduction, imitation, characterization, description, 24 exhibition, presentation, or representation, of in whatever 25 kind or form, depicting of nudity, sexual conduct, or sexual 26 excitement when it: 27 (a) Predominantly appeals to the prurient, shameful, 28 or morbid interest of minors; 29 (b) Is patently offensive to prevailing standards in 30 the adult community as a whole with respect to what is 31 suitable material for minors; and 2 12:44 PM 04/27/01 s0144c2c-29j01
SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 (c) Taken as a whole, is without serious literary, 2 artistic, political, or scientific value for minors. 3 4 A mother's breastfeeding of her baby is not under any 5 circumstance "harmful to minors." 6 (5)(4) "Minor" means any person under the age of 18 7 years. 8 (6)(5) "Nudity" means the showing of the human male or 9 female genitals, pubic area, or buttocks with less than a 10 fully opaque covering; or the showing of the female breast 11 with less than a fully opaque covering of any portion thereof 12 below the top of the nipple; or the depiction of covered male 13 genitals in a discernibly turgid state. A mother's 14 breastfeeding of her baby does not under any circumstance 15 constitute "nudity," irrespective of whether or not the nipple 16 is covered during or incidental to feeding. 17 (7)(6) "Person" includes individuals, children, firms, 18 associations, joint ventures, partnerships, estates, trusts, 19 business trusts, syndicates, fiduciaries, corporations, and 20 all other groups or and combinations. 21 (8)(7) "Obscene" means the status of material which: 22 (a) The average person, applying contemporary 23 community standards, would find, taken as a whole, appeals to 24 the prurient interest; 25 (b) Depicts or describes, in a patently offensive way, 26 sexual conduct as specifically defined herein; and 27 (c) Taken as a whole, lacks serious literary, 28 artistic, political, or scientific value. 29 30 A mother's breastfeeding of her baby is not under any 31 circumstance "obscene." 3 12:44 PM 04/27/01 s0144c2c-29j01
SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 (9)(8) "Sadomasochistic abuse" means flagellation or 2 torture by or upon a person or animal, or the condition of 3 being fettered, bound, or otherwise physically restrained, for 4 the purpose of deriving sexual satisfaction, or satisfaction 5 brought about as a result of sadistic violence, from 6 inflicting harm on another or receiving such harm oneself. 7 (10)(9) "Sexual battery" means oral, anal, or vaginal 8 penetration by, or union with, the sexual organ of another or 9 the anal or vaginal penetration of another by any other 10 object; however, "sexual battery" does not include an act done 11 for a bona fide medical purpose. 12 (11)(10) "Sexual bestiality" means any sexual act 13 between a person and an animal involving the sex organ of the 14 one and the mouth, anus, or vagina of the other. 15 (12)(11) "Sexual conduct" means actual or simulated 16 sexual intercourse, deviate sexual intercourse, sexual 17 bestiality, masturbation, or sadomasochistic abuse; actual 18 lewd exhibition of the genitals; actual physical contact with 19 a person's clothed or unclothed genitals, pubic area, 20 buttocks, or, if such person is a female, breast with the 21 intent to arouse or gratify the sexual desire of either party; 22 or any act or conduct which constitutes sexual battery or 23 simulates that sexual battery is being or will be committed. 24 A mother's breastfeeding of her baby does not under any 25 circumstance constitute "sexual conduct." 26 (13)(12) "Sexual excitement" means the condition of 27 the human male or female genitals when in a state of sexual 28 stimulation or arousal. 29 (14)(13) "Simulated" means the explicit depiction of 30 conduct described in subsection (12) (11) which creates the 31 appearance of such conduct and which exhibits any uncovered 4 12:44 PM 04/27/01 s0144c2c-29j01
SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 portion of the breasts, genitals, or buttocks. 2 Section 3. Subsection (2) of section 847.0135, Florida 3 Statutes, is amended to read: 4 847.0135 Computer pornography; penalties.-- 5 (2) COMPUTER PORNOGRAPHY.--A person who: 6 (a) Knowingly compiles, enters into, or transmits by 7 use means of computer; 8 (b) Makes, prints, publishes, or reproduces by other 9 computerized means; 10 (c) Knowingly causes or allows to be entered into or 11 transmitted by use means of computer; or 12 (d) Buys, sells, receives, exchanges, or disseminates, 13 14 any notice, statement, or advertisement of, or any minor's 15 name, telephone number, place of residence, physical 16 characteristics, or other descriptive or identifying 17 information, for purposes of facilitating, encouraging, 18 offering, or soliciting sexual conduct of or with any minor, 19 or the visual depiction of such conduct, commits a felony of 20 the third degree, punishable as provided in s. 775.082, s. 21 775.083, or s. 775.984. The fact that an undercover operative 22 or law enforcement officer was involved in the detection and 23 investigation of an offense under this section shall not 24 constitute a defense to a prosecution under this section. Any 25 person who violates the provisions of this subsection commits 26 a felony of the third degree, punishable as provided for in s. 27 775.082, s. 775.083, or s. 775.084. 28 Section 4. Section 847.0137, Florida Statutes, is 29 created to read: 30 847.0137 Transmission of pornography by electronic 31 device or equipment prohibited; penalties.-- 5 12:44 PM 04/27/01 s0144c2c-29j01
SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 (1) For purposes of this section: 2 (a) "Minor" means any person less than 18 years of 3 age. 4 (b) "Transmit" means the act of sending and causing to 5 be delivered any image, information, or data from one or more 6 persons or places to one or more other persons or places over 7 or through any medium, including the Internet, by use of any 8 electronic equipment or device. 9 (2) Notwithstanding ss. 847.012 and 847.0133, any 10 person in this state who knew or reasonably should have known 11 that he or she was transmitting child pornography, as defined 12 in s. 847.001, to another person in this state or in another 13 jurisdiction commits a felony of the third degree, punishable 14 as provided in s. 775.082, s. 775.083, or s. 775.084. 15 (3) Notwithstanding ss. 847.012 and 847.0133, any 16 person in any jurisdiction other than this state who knew or 17 reasonably should have known that he or she was transmitting 18 child pornography, as defined in s. 847.001, to any person in 19 this state commits a felony of the third degree, punishable as 20 provided in s. 775.082, s. 775.083, or s. 775.084. 21 (4) This section shall not be construed to prohibit 22 prosecution of a person in this state or another jurisdiction 23 for a violation of any law of this state, including a law 24 providing for greater penalties than prescribed in this 25 section, for the transmission of child pornography, as defined 26 in s. 847.001, to any person in this state. 27 (5) A person is subject to prosecution in this state 28 pursuant to chapter 910 for any act or conduct proscribed by 29 this section, including a person in a jurisdiction other than 30 this state, if the act or conduct violates subsection (3). 31 6 12:44 PM 04/27/01 s0144c2c-29j01
SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 The provisions of this section do not apply to 2 subscription-based transmissions such as list servers. 3 Section 5. Section 847.0138, Florida Statutes, is 4 created to read: 5 847.0138 Transmission of material harmful to minors to 6 a minor by electronic device or equipment prohibited; 7 penalties.-- 8 (1) For purposes of this section: 9 (a) "Known by the defendant to be a minor" means that 10 the defendant had actual knowledge or had reason to believe 11 that the recipient of the communication was a minor. 12 (b) "Transmit" means to send to a specific individual 13 known by the defendant to be a minor via electronic mail. 14 (2) Notwithstanding ss. 847.012 and 847.0133, any 15 person in this state who knew or reasonably should have known 16 that he or she was transmitting an image, information, or data 17 that is harmful to minors, as defined in s. 847.001, to a 18 specific individual known by the defendant to be a minor in 19 this state commits a felony of the third degree, punishable as 20 provided in s. 775.082, s. 775.083, or s. 775.084. 21 (3) Notwithstanding ss. 847.012 and 847.0133, any 22 person in any jurisdiction other than this state who knew or 23 reasonably should have known that he or she was transmitting 24 an image, information, or data that is harmful to minors, as 25 defined in s. 847.001, to a specific individual known by the 26 defendant to be a minor in this state commits a felony of the 27 third degree, punishable as provided in s. 775.082, s. 28 775.083, or s. 775.084. 29 30 The provisions of this section do not apply to 31 subscription-based transmissions such as list servers. 7 12:44 PM 04/27/01 s0144c2c-29j01
SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 Section 6. Section 847.0139, Florida Statutes, is 2 created to read: 3 847.0139 Immunity from civil liability for reporting 4 child pornography, transmission of child pornography, or any 5 image, information, or data harmful to minors to a minor in 6 this state.--Any person who reports to a law enforcement 7 officer what the person reasonably believes to be child 8 pornography, transmission of child pornography, or any image, 9 information, or data that is harmful to minors to a minor in 10 this state may not be held civilly liable for such 11 reporting. For purposes of this section, such reporting may 12 include furnishing the law enforcement officer with any image, 13 information, or data that the person reasonably believes to be 14 evidence of child pornography, transmission of child 15 pornography, or an image, information, or data that is harmful 16 to minors to a minor in this state. 17 Section 7. Subsection (7) is added to section 905.34, 18 Florida Statutes, to read: 19 905.34 Powers and duties; law applicable.--The 20 jurisdiction of a statewide grand jury impaneled under this 21 chapter shall extend throughout the state. The subject matter 22 jurisdiction of the statewide grand jury shall be limited to 23 the offenses of: 24 (7) Any violation of s. 847.0135, s. 847.0137, or s. 25 847.0138 relating to computer pornography and child 26 exploitation prevention, or any offense related to a violation 27 of s. 847.0135, s. 847.0137, or s. 847.0138; 28 29 or any attempt, solicitation, or conspiracy to commit any 30 violation of the crimes specifically enumerated above, when 31 any such offense is occurring, or has occurred, in two or more 8 12:44 PM 04/27/01 s0144c2c-29j01
SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 judicial circuits as part of a related transaction or when any 2 such offense is connected with an organized criminal 3 conspiracy affecting two or more judicial circuits. The 4 statewide grand jury may return indictments and presentments 5 irrespective of the county or judicial circuit where the 6 offense is committed or triable. If an indictment is 7 returned, it shall be certified and transferred for trial to 8 the county where the offense was committed. The powers and 9 duties of, and law applicable to, county grand juries shall 10 apply to a statewide grand jury except when such powers, 11 duties, and law are inconsistent with the provisions of ss. 12 905.31-905.40. 13 Section 8. If a court of competent jurisdiction rules 14 that any part of this act is unconstitutional or otherwise 15 ineffective, such ruling shall not affect the other parts of 16 this act and such other parts shall remain effective as though 17 no such ruling has occurred. 18 Section 9. Except as otherwise expressly provided in 19 this act, this act shall take effect July 1, 2001. 20 21 22 ================ T I T L E A M E N D M E N T =============== 23 And the title is amended as follows: 24 Delete everything before the enacting clause 25 26 and insert: 27 A bill to be entitled 28 An act relating to child pornography and images 29 harmful to minors; amending s. 827.071, F.S.; 30 revising the definition of "sexual conduct"; 31 amending s. 847.001, F.S.; revising and adding 9 12:44 PM 04/27/01 s0144c2c-29j01
SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 definitions; amending s. 847.0135, F.S.; 2 revising the "Computer Pornography and Child 3 Exploitation Act of 1986" to clarify certain 4 penalties; creating s. 847.0137, F.S.; 5 prohibiting transmissions of child pornography 6 and any image, information, or data harmful to 7 minors; providing penalties; creating s. 8 847.0138, F.S.; prohibiting transmission of 9 material harmful to minors by electronic device 10 or equipment; providing definitions; providing 11 penalties; creating s. 847.0139, F.S.; 12 providing immunity from civil liability for 13 reporting child pornography, transmission of 14 child pornography, or unlawful transmission of 15 any image, information, or data harmful to 16 minors; amending s. 905.34, F.S.; providing 17 jurisdiction of the statewide grand jury over 18 offenses relating to computer pornography, 19 child exploitation, or violations of s. 20 847.0135, F.S.; providing severability; 21 providing effective dates. 22 23 WHEREAS, The Florida Information Service Technology 24 Development Task Force found and recommended that, while the 25 development of information technology is a rapidly expanding 26 enterprise and the issue of transmission of adult and child 27 pornography is difficult to resolve, legislation should be 28 enacted to address the following situations: where a person 29 in or outside of the State of Florida knowingly transmits any 30 type of pornography to a minor in Florida, a crime has 31 occurred and the State of Florida has jurisdiction; where a 10 12:44 PM 04/27/01 s0144c2c-29j01
SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 person in the State of Florida transmits child pornography to 2 anyone in or outside the State of Florida a crime has occurred 3 and the State of Florida has jurisdiction; and where a person 4 outside the State of Florida knowingly transmits child 5 pornography to any person in the State of Florida, a crime has 6 occurred and the State of Florida has jurisdiction, and 7 WHEREAS, the task force also recommended that 8 legislation be enacted that, while not mandating that a person 9 report child pornography, the transmission of child 10 pornography, or the unlawful transmission of any image, 11 information, or data that is harmful to minors, would grant 12 civil immunity to any person who reports to any law 13 enforcement officer what he or she reasonably believes to be 14 evidence of child pornography, the transmission of child 15 pornography, or the unlawful transmission of any image, 16 information, or data harmful to any minor in this state, and 17 WHEREAS, the Legislature agrees with the foregoing 18 findings, conclusions, and recommendations of the task force, 19 and finds that legislation enacting the recommendations would 20 facilitate apprehension of persons who transmit child 21 pornography or improperly transmit images harmful to minors 22 while protecting persons from arrest based on unsubstantiated 23 or false accusations or statements or the submission of 24 falsified evidence by the person reporting the transmission, 25 and 26 WHEREAS, the Legislature further finds that the use of 27 minors in pornographic images is harmful to the physiological, 28 emotional, mental, and social well-being of minors and that 29 the dissemination of such images results in subjecting the 30 minors who are the subject of such images to continuing 31 irreparable injury by creating a perpetual record of their 11 12:44 PM 04/27/01 s0144c2c-29j01
SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 participation in pornographic acts, and 2 WHEREAS, the Legislature further finds that child 3 pornography and images, information, and data that are harmful 4 to minors are frequently used to entice minors to engage in 5 improper sexual activity, and the use of such means to entice 6 minors in Florida to engage in such sexual activity 7 irreparably harms their physiological, emotional, mental, and 8 social well-being, and 9 WHEREAS, the Legislature further finds that the advent 10 and growing use of the Internet and other electronic devices 11 has greatly facilitated transmission of child pornography and 12 images, information, and data that are harmful to minors, thus 13 subjecting minors in Florida to an ever-increasing likelihood 14 of being victimized by the purveyors of such, and 15 WHEREAS, the Legislature further finds that 16 criminalizing the transmission of child pornography and the 17 unlawful transmission of images, information, and data that 18 are harmful to minors is an appropriate means of serving the 19 state's compelling interest in protecting minors in Florida 20 from suffering the irreparable harm they can experience from 21 being subjected to participating in creating the images that 22 are included in such transmissions and from being subjected to 23 receiving the images that are included in such transmissions, 24 and 25 WHEREAS, the Legislature further finds that the First 26 Amendment would not be violated by legislation prohibiting the 27 transmission of child pornography or the transmission of 28 images harmful to minors to a minor in this state, and 29 WHEREAS, the Legislature further finds that deterring 30 and punishing the transmission of child pornography and images 31 harmful to minors can and should be accomplished by amending 12 12:44 PM 04/27/01 s0144c2c-29j01
SENATE AMENDMENT Bill No. CS for CS for SB 144 Amendment No. ___ Barcode 044792 1 the laws of this state, and 2 WHEREAS, the Legislature further finds that the laws of 3 this state may be amended to address jurisdictional concerns 4 regarding transmission of child pornography and transmission 5 of images, information, and data harmful to minors to a minor 6 in this state, as those concerns have already been addressed 7 by the Legislature regarding computer-solicitation offenses 8 against minors, and 9 WHEREAS, the Legislature further finds that the laws of 10 this state may be amended to grant civil immunity to any 11 person who reports to any law enforcement officer what he or 12 she reasonably believes to be child pornography, the 13 transmission of child pornography, or the transmission of 14 images, information, and data that are harmful to minors to a 15 minor in this state, NOW, THEREFORE, 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 13 12:44 PM 04/27/01 s0144c2c-29j01