Sex, Laws and Videos: 21st Century Sex Crimes Use of Recording Devices, Film, Cell Phones, Computers and the Internet Ginger Kimes Staff Attorney Prosecutor Coordinator’s Office ginger.kimes@arkansas.gov

Stats - On-line Crimes Against Children A study including 1,501 children ages 10-17 who used the Internet at least once a month for the last six months found the following: One in five children (19%) received unwanted sexual solicitation in the past year.

1 in 17 children felt threatened or harassed. 25% reported unwanted exposure to sexual material. Almost two-thirds of that exposure was to 15-17 year olds. 67% of the incidents were in their own home; 15% while at school; 13% while at someone else’s home; and 3% while in the library.

Source: Crimes Against Children Research Center, Finklehor, D., Mitchell, K., Wolak, J. 2000. Online Victimization: A Report on the Nation’s Youth. National Center for Missing and Exploited Children. http://www.missingkids.com/en_US/publications/NC62.pdf

Laws 5-27-301 to 306 – Arkansas Protection of Children Against Exploitation Act of 1979. 5-27-401 to 405 – Use of Children in Sexual Performances 5-27-601 to 608 - Computer Crimes Against Minors

Sexual Exploitation of Children Generally 5-27-301 to 306 301 Title 302 Definitions 303 Engaging children in sexually explicit conduct for use in visual or print medium 304 Pandering or possessing visual or print medium depicting sexually explicit conduct involving a child. 305 Transportation of minor for prohibited sexual conduct 306 Internet Stalking of a Child

Engaging children in sexually explicit conduct for use in visual or print medium 5-27-303 (a) Any person who employs, uses, persuades, induces, entices, or coerces any child (less than 17) to engage in or who has a child assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual or print medium depicting the sexually explicit conduct.

(b) Any parent, legal guardian, or person having custody or control of a child who knowingly permits the child to engage in or to assist any other person to engage in sexually explicit conduct for the purpose of producing any visual or print medium depicting the sexually explicit conduct. Child = less than 17 1st offense = B felony 2nd offense = A felony

Pandering or possessing visual or print medium depicting sexually explicit conduct involving a child 5-27-304 Child = less than 17 1st offense = C felony 2nd offense = B felony

Transportation of minor for prohibited sexual conduct 5-27-305 Transports, finances (in whole or part) the transportation of or otherwise causes or facilitates the movement of a child less than 18 and the person knows that prohibited sexual conduct will be commercially exploited by any person AND the person intends that the minor engage in prostitution or any prohibited sexual conduct.

Transportation (continued) Note – child is less than 18 This crime is a B felony (raised during past legislative session).

Internet Stalking of a Child 5-27-306 D = 21 or over Knowingly uses a computer online service, Internet service or local Internet bulletin board service to:

Seduce, solicit, lure, or entice a child 15 or younger (or an individual the person believes to be 15 or younger) in an effort to arrange a meeting with the child for the purpose of engaging in sexual intercourse, sexually explicit conduct, or deviate sexual activity

 Compile, transmit, publish, reproduce, buy, sell, receive, exchange, or disseminate the name, telephone number, e-mail address, residence address, picture, physical description, characteristics, or any other identifying information on a child 15 years of age or younger (or an individual the person believes to be 15 or younger) in furtherance of an effort to arrange a meeting with the child for the purpose of engaging in sexual intercourse, sexually explicit conduct, or deviate sexual activity

Class B felony if the person attempts to arrange a meeting with a child 15 years of age or younger, (or an individual the person believes to be 15 or younger) even if a meeting with the child never takes place. Class A felony if the person arranges a meeting with a child fifteen (15) years of age or younger and an actual meeting with the child takes place, even if the person fails to engage the child in any sexual activity.

Use of Children (less than 17) in Sexual Performances 5-27-401 to 405 401 Definitions 402 Employing or consenting to use of child in sexual performance 403 Producing, directing or promoting sexual performance 404 Good faith defense 405 Determination of age of child

Employing or consenting to the use of a child in a sexual performance 5-27-402  (a) It is unlawful for any person, knowing the character and content of the performance, to employ, authorize, or induce a child under seventeen (17) years of age to engage in a sexual performance.

(b) It is also unlawful for a parent or legal guardian or custodian of a child under seventeen (17) years of age to consent to the participation by the child in a sexual performance. Child = less than 17 1st offense = C felony All subsequent offenses = B felony

Producing, directing, or promoting a sexual performance by a child 5-27-403 B felony Child = less than 17

Computer Crimes Against Minors. 5-27-601 - Definitions 5-27-602 - Distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child. 5-27-603 - Computer Child Pornography 5-27-604 – Failure to report computer child porn 5-27-605 Computer Exploitation of a Child 1st & 2nd degree 5-27-606 Jurisdiction 5-27-607 Determination of Age of Person 5-27-608 Applicability to interactive computer service and e-mail service providers.

Distributing, possessing or viewing of matter depicting sexuality explicit conduct involving a child (less than 17). 5-27-602 Knowingly receives for the purpose of selling or knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers, or agrees to offer through any means, including the Internet

Any photograph, film, videotape, computer program or file, video game, or any other reproduction or reconstruction

that depicts a child or incorporates the image of a child engaging in sexually explicit conduct.

Knowingly possesses OR views through any means, including on the Internet Any photograph, film, videotape, computer program or file, computer generated image, video game, or any other reproduction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct.

Penalty 1st offense = C felony 2nd offense = B felony 3-10 years; up to $10,000 fine 2nd offense = B felony 5-20 years; up to $15,000 fine

Affirmative Defense It is an affirmative defense to a prosecution under this section that the defendant in good faith reasonably believed that the child depicted in the matter was 17 years of age or older.

Computer Child Pornography 5-27-603 Knowingly compiles, enters into, or transmits by means of computer, makes, prints, publishes, or reproduces by other computerized means, knowingly causes or allows to be entered into or transmitted by means of computer or buys, sells, receives, exchanges, or disseminates any notice, statement, or advertisement or any child's name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information

for purposes of facilitating, encouraging, offering, or soliciting sexually explicit conduct of or with any child or another individual believed by the person to be a child, or the visual depiction of the conduct; OR

Computer Child Porn Knowingly utilizes a computer online service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice or (attempt to do so) a child or another individual believed by the person to be a child, to engage in sexually explicit conduct. Penalty = B felony (5 – 20 years; up to $15,000 fine)

Computer Exploitation of a Child 1st degree 5-27-605 A person commits computer exploitation of a child in the first degree if the person causes or permits a child to engage in sexually explicit conduct & Knows, has reason to know, or intends that the prohibited conduct may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or part of an exhibition or performance.

Penalty for 1st degree, 1st offense = B felony (5 – 20 yrs; up to $15,000 fine) Penalty for 1st degree 2nd offense = A felony (6 – 30 yrs; up to $15,000 fine)     

Computer Exploitation of a Child 2nd degree 5-27-605 A person commits computer exploitation of a child in the second degree if the person photographs or films a child engaged in sexually explicit conduct or uses any device, including a computer, to reproduce or reconstruct the image of a child engaged in sexually explicit conduct. Penalty = C felony (3 – 10 yrs.; up to $10,000 fine)    

Video Voyeurism 5-16-101

Video Voyeurism (a) It is unlawful to use any camera, videotape, photo-optical, photoelectric, or any other image recording device for the purpose of secretly observing, viewing, photographing, filming, or videotaping a person present in a residence, place of business, school, or other structure, or any room or particular location within that structure, if that person:   

 (1) Is in a private area out of public view;   (2) Has a reasonable expectation of privacy; and    (3) Has not consented to the observation.

b) Class D felony. (c) The provisions of this section do not apply to any of the following:    (1) Video recording or monitoring conducted pursuant to a court order from a court of competent jurisdiction;    (2) Security monitoring operated by or at the direction of an occupant of a residence;    (3) Security monitoring operated by or at the direction of the owner or administrator of a place of business, school, or other structure;

(4) Security monitoring operated in a motor vehicle used for public transit;    (5) Security monitoring and observation associated with a correctional facility, regardless of the location of the monitoring equipment;    (6) Video recording or monitoring conducted by a law enforcement officer within the official scope of his or her duty; or    (7) Videotaping pursuant to a child maltreatment exam.

Video Voyeurism (continued) Added in 2007 – “up-skirting” – B misdemeanor Added in 2009 – amended to make a person who creates a video recording, film, or photo guilty of a Class A misdemeanor if he or she distributes or transmits it to another person or posts it in a format accessible by another person via the Internet.

What about Cell Phones? Tough one…many times - have to search a little harder to find a law that fits. 35 year old man solicits sex from an underage girl by way of a chat room – but was on his cell phone…???? Should fit 5-27-306. Internet access via cell phone.

Teacher shows nude pictures she had on her cell phone to her students. ????? Harassment.

Underage girl – takes pictures of herself (nude) and forwards to several people who are also underage. Maybe 5-27-602 – Distributing, Possessing, or viewing of matter depicting sexually explicit conduct involving a child.