Florida Senate - 2011 CS for CS for SB 846
By the Committees on Judiciary; and Criminal Justice; and
Senators Benacquisto and Gaetz
590-04419-11 2011846c2
1 A bill to be entitled
2 An act relating to sexual performance by a child;
3 amending s. 827.071, F.S.; defining the term
4 “intentionally view”; prohibiting controlling or
5 intentionally viewing any photograph, motion picture,
6 exhibition, show, image, data, computer depiction,
7 representation, or other presentation that includes
8 sexual conduct by a child; providing an exception;
9 providing penalties; amending s. 921.0022, F.S.;
10 conforming provisions of the offense severity ranking
11 chart of the Criminal Punishment Code to changes made
12 by the act; providing an effective date.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. Subsections (1) and (5) of section 827.071,
17 Florida Statutes, are amended to read:
18 827.071 Sexual performance by a child; penalties.—
19 (1) As used in this section, the following definitions
20 shall apply:
21 (a) “Deviate sexual intercourse” means sexual conduct
22 between persons not married to each other consisting of contact
23 between the penis and the anus, the mouth and the penis, or the
24 mouth and the vulva.
25 (b) “Intentionally view” means to deliberately,
26 purposefully, and voluntarily view. Proof of intentional viewing
27 requires establishing more than a single image, motion picture,
28 exhibition, show, image, data, computer depiction,
29 representation, or other presentation over any period of time.
30 (c)(b) “Performance” means any play, motion picture,
31 photograph, or dance or any other visual representation
32 exhibited before an audience.
33 (d)(c) “Promote” means to procure, manufacture, issue,
34 sell, give, provide, lend, mail, deliver, transfer, transmute,
35 publish, distribute, circulate, disseminate, present, exhibit,
36 or advertise or to offer or agree to do the same.
37 (e)(d) “Sadomasochistic abuse” means flagellation or
38 torture by or upon a person, or the condition of being fettered,
39 bound, or otherwise physically restrained, for the purpose of
40 deriving sexual satisfaction from inflicting harm on another or
41 receiving such harm oneself.
42 (f)(e) “Sexual battery” means oral, anal, or vaginal
43 penetration by, or union with, the sexual organ of another or
44 the anal or vaginal penetration of another by any other object;
45 however, “sexual battery” does not include an act done for a
46 bona fide medical purpose.
47 (g)(f) “Sexual bestiality” means any sexual act between a
48 person and an animal involving the sex organ of the one and the
49 mouth, anus, or vagina of the other.
50 (h)(g) “Sexual conduct” means actual or simulated sexual
51 intercourse, deviate sexual intercourse, sexual bestiality,
52 masturbation, or sadomasochistic abuse; actual lewd exhibition
53 of the genitals; actual physical contact with a person’s clothed
54 or unclothed genitals, pubic area, buttocks, or, if such person
55 is a female, breast, with the intent to arouse or gratify the
56 sexual desire of either party; or any act or conduct which
57 constitutes sexual battery or simulates that sexual battery is
58 being or will be committed. A mother’s breastfeeding of her baby
59 does not under any circumstance constitute “sexual conduct.”
60 (i)(h) “Sexual performance” means any performance or part
61 thereof which includes sexual conduct by a child of less than 18
62 years of age.
63 (j)(i) “Simulated” means the explicit depiction of conduct
64 set forth in paragraph (h) (g) which creates the appearance of
65 such conduct and which exhibits any uncovered portion of the
66 breasts, genitals, or buttocks.
67 (5)(a) It is unlawful for any person to knowingly possess,
68 control, or intentionally view a photograph, motion picture,
69 exhibition, show, representation, image, data, computer
70 depiction, or other presentation which, in whole or in part, he
71 or she knows to include any sexual conduct by a child. The
72 possession, control, or intentional viewing of each such
73 photograph, motion picture, exhibition, show, image, data,
74 computer depiction, representation, or presentation is a
75 separate offense. A person who Whoever violates this subsection
76 commits is guilty of a felony of the third degree, punishable as
77 provided in s. 775.082, s. 775.083, or s. 775.084.
78 (b) This subsection does not apply to material possessed,
79 controlled, or intentionally viewed as part of a law enforcement
80 investigation.
81 Section 2. Paragraph (e) of subsection (3) of section
82 921.0022, Florida Statutes, is amended to read:
83 921.0022 Criminal Punishment Code; offense severity ranking
84 chart.—
85 (3) OFFENSE SEVERITY RANKING CHART
86 (e) LEVEL 5
87
88 FloridaStatute FelonyDegree Description
89 316.027(1)(a) 3rd Accidents involving personal injuries, failure to stop; leaving scene.
90 316.1935(4)(a) 2nd Aggravated fleeing or eluding.
91 322.34(6) 3rd Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury.
92 327.30(5) 3rd Vessel accidents involving personal injury; leaving scene.
93 381.0041(11)(b) 3rd Donate blood, plasma, or organs knowing HIV positive.
94 440.10(1)(g) 2nd Failure to obtain workers’ compensation coverage.
95 440.105(5) 2nd Unlawful solicitation for the purpose of making workers’ compensation claims.
96 440.381(2) 2nd Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers’ compensation premiums.
97 624.401(4)(b)2. 2nd Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000.
98 626.902(1)(c) 2nd Representing an unauthorized insurer; repeat offender.
99 790.01(2) 3rd Carrying a concealed firearm.
100 790.162 2nd Threat to throw or discharge destructive device.
101 790.163(1) 2nd False report of deadly explosive or weapon of mass destruction.
102 790.221(1) 2nd Possession of short-barreled shotgun or machine gun.
103 790.23 2nd Felons in possession of firearms, ammunition, or electronic weapons or devices.
104 800.04(6)(c) 3rd Lewd or lascivious conduct; offender less than 18 years.
105 800.04(7)(b) 2nd Lewd or lascivious exhibition; offender 18 years or older.
106 806.111(1) 3rd Possess, manufacture, or dispense fire bomb with intent to damage any structure or property.
107 812.0145(2)(b) 2nd Theft from person 65 years of age or older; $10,000 or more but less than $50,000.
108 812.015(8) 3rd Retail theft; property stolen is valued at $300 or more and one or more specified acts.
109 812.019(1) 2nd Stolen property; dealing in or trafficking in.
110 812.131(2)(b) 3rd Robbery by sudden snatching.
111 812.16(2) 3rd Owning, operating, or conducting a chop shop.
112 817.034(4)(a)2. 2nd Communications fraud, value $20,000 to $50,000.
113 817.234(11)(b) 2nd Insurance fraud; property value $20,000 or more but less than $100,000.
114 817.2341(1),(2)(a) & (3)(a) 3rd Filing false financial statements, making false entries of material fact or false statements regarding property values relating to the solvency of an insuring entity.
115 817.568(2)(b) 2nd Fraudulent use of personal identification information; value of benefit, services received, payment avoided, or amount of injury or fraud, $5,000 or more or use of personal identification information of 10 or more individuals.
116 817.625(2)(b) 2nd Second or subsequent fraudulent use of scanning device or reencoder.
117 825.1025(4) 3rd Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
118 827.071(4) 2nd Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child.
119 827.071(5) 3rd Possess, control, or intentionally view any photographic material, motion picture, etc., which includes sexual conduct by a child.
120 839.13(2)(b) 2nd Falsifying records of an individual in the care and custody of a state agency involving great bodily harm or death.
121 843.01 3rd Resist officer with violence to person; resist arrest with violence.
122 847.0135(5)(b) 2nd Lewd or lascivious exhibition using computer; offender 18 years or older.
123 847.0137(2) & (3) 3rd Transmission of pornography by electronic device or equipment.
124 847.0138(2) & (3) 3rd Transmission of material harmful to minors to a minor by electronic device or equipment.
125 874.05(2) 2nd Encouraging or recruiting another to join a criminal gang; second or subsequent offense.
126 893.13(1)(a)1. 2nd Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs).
127 893.13(1)(c)2. 2nd Sell, manufacture, or deliver cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs) within 1,000 feet of a child care facility, school, or state, county, or municipal park or publicly owned recreational facility or community center.
128 893.13(1)(d)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of university.
129 893.13(1)(e)2. 2nd Sell, manufacture, or deliver cannabis or other drug prohibited under s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) within 1,000 feet of property used for religious services or a specified business site.
130 893.13(1)(f)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), or (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of public housing facility.
131 893.13(4)(b) 2nd Deliver to minor cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs).
132 893.1351(1) 3rd Ownership, lease, or rental for trafficking in or manufacturing of controlled substance.
133 Section 3. This act shall take effect October 1, 2011.