HF 2390 (LSB 5149HV (3) 84)

HOUSE FILE 2390

BY  COMMITTEE ON JUDICIARY

(SUCCESSOR TO HSB 525)

A BILL FOR

An Act relating to obscene material, commercial sexual activity, and human trafficking, and providing penalties and making penalties applicable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 692A.102, subsection 1, paragraph c, Code Supplement 2011, is amended by adding the following new subparagraph:
   NEW SUBPARAGRAPH.  (032)  Solicitation of commercial sexual activity in violation of section 710A.2A.
    Sec. 2.  Section 710A.1, subsection 4, Code 2011, is amended to read as follows:
   4.
  a.  “Human trafficking” means participating in a venture to recruit, harbor, transport, supply provisions, or obtain a person for any of the following purposes:
   a.

(1)  Forced labor or service that results in involuntary servitude, peonage, debt bondage, or slavery.
   b.

(2)  Commercial sexual activity through the use of force, fraud, or coercion, except that if the trafficked person is under the age of eighteen, the commercial sexual activity need not involve force, fraud, or coercion.
   b.  “Human trafficking” also means knowingly purchasing or attempting to purchase services involving commercial sexual activity from a victim or another person engaged in human trafficking.
    Sec. 3.  Section 710A.2, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  8.  A person’s ignorance of the age of the victim or a belief that the victim was older is no defense to a violation of this section.
    Sec. 4.  NEW SECTION.  710A.2A  Solicitation of commercial sexual activity.
   A person shall not entice, coerce, or recruit, or attempt to entice, coerce, or recruit either a person under the age of eighteen or a law enforcement officer or agent representing oneself to be under the age of eighteen, to engage in a commercial sexual activity. A person who violates this section commits a class “D” felony.
    Sec. 5.  Section 728.1, subsection 7, paragraphs e through g, Code 2011, are amended to read as follows:
   e.  Sadomasochistic abuse of a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a
 
visual depiction of the abuse.
   f.  Sadomasochistic abuse of a person by a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a
 
visual depiction of the abuse.
   g.  Nudity of a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a
 
visual depiction of the nude minor.
    Sec. 6.  Section 728.1, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  11.  “Visual depiction” means but is not limited to any picture, slide, photograph, digital or electronic image, negative image, undeveloped film, motion picture, videotape, digital or electronic recording, live transmission, or other pictorial or three-dimensional representation.
    Sec. 7.  Section 728.12, subsection 1, Code 2011, is amended to read as follows:
   1.  It shall be unlawful to employ, use, persuade, induce, entice, coerce, solicit, knowingly permit, or otherwise cause or attempt to cause a minor to engage in a prohibited sexual act or in the simulation of a prohibited sexual act. A person must know, or have reason to know, or intend that the act or simulated act may be photographed, filmed, or otherwise preserved in a negative, slide, book, magazine, computer, computer disk, or other print or visual medium, or be preserved in an electronic, magnetic, or optical storage system, or in any other type of storage system
 
visual depiction. A person who commits a violation of this subsection commits a class “C” felony. Notwithstanding section 902.9, the court may assess a fine of not more than fifty thousand dollars for each offense under this subsection in addition to imposing any other authorized sentence.
    Sec. 8.  Section 728.12, subsection 3, unnumbered paragraph 1, Code 2011, is amended to read as follows:
   It shall be unlawful to knowingly purchase or possess a negative, slide, book, magazine, computer, computer disk, or other print or visual medium, or an electronic, magnetic, or optical storage system, or any other type of storage system which depicts
 
visual depiction of a minor engaging in a prohibited sexual act or the simulation of a prohibited sexual act. A person who commits a violation of this subsection commits an aggravated misdemeanor for a first offense and a class “D” felony for a second or subsequent offense. For purposes of this subsection, an offense is considered a second or subsequent offense if, prior to the person’s having been convicted under this subsection, any of the following apply:
    Sec. 9.  Section 728.14, Code 2011, is amended to read as follows:
   728.14  Commercial film and photographic print processor reports of depictions of minors engaged in prohibited sexual acts.
   1.  A commercial film and photographic print processor who has knowledge of or observes, within the scope of the processor’s professional capacity or employment, a film, photograph, video tape, negative, or slide which depicts
 
visual depiction of a minor whom the processor knows or reasonably should know to be under the age of eighteen, engaged in a prohibited sexual act or in the simulation of a prohibited sexual act, shall report the
 
visual depiction to the county attorney immediately or as soon as possible as required in this section. The processor shall not report to the county attorney
 
visual depictions involving mere nudity of the minor, but shall report
 
visual depictions involving a prohibited sexual act. This section shall not be construed to require a processor to review all films, photographs, video tapes, negatives, or slides
 
visual depictions delivered to the processor within the processor’s professional capacity or employment.
   2.  For purposes of this section, “prohibited sexual act” means any of the following:
   a.  A sex act as defined in section 702.17.
   b.  An act of bestiality involving a minor.
   c.  Fondling or touching the pubes or genitals of a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a
 
visual depiction of the act.
   d.  Fondling or touching the pubes or genitals of a person by a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a
 
visual depiction of the act.
   e.  Sadomasochistic abuse of a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a
 
visual depiction of the abuse.
   f.  Sadomasochistic abuse of a person by a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a
 
visual depiction of the abuse.
   g.  Nudity of a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a
 
visual depiction of the nude minor.
   2.

3.  A person who violates this section is guilty of a simple misdemeanor.
    Sec. 10.  Section 915.87, subsection 2, paragraph b, Code 2011, is amended to read as follows:
   b.  The victim assisting, attempting, or committing a criminal act.

This paragraph shall not apply to a victim under the age of eighteen involved in commercial sexual activity as defined in section 710A.1.
EXPLANATION
   This bill relates to obscene material, commercial sexual activity, and human trafficking.
   The bill modifies the definition of “human trafficking” to include knowingly purchasing or attempting to purchase services involving commercial sexual activity from a victim or another person engaged in human trafficking.
   The bill specifies a person’s ignorance of the age of a victim or a belief that a victim was older is no defense to a violation relating to human trafficking under Code section 710A.2.
   A person who knowingly engages in human trafficking commits a criminal offense ranging from a class “D” felony to a class “B” felony depending on the circumstances of the case in Code section 710A.2.
   The bill creates the criminal offense of solicitation of commercial sexual activity. The bill prohibits a person from enticing, coercing, or recruiting, or attempting to entice, coerce, or recruit a person under the age of 18 or a law enforcement officer or agent representing oneself to be under the age of 18, to engage in commercial sexual activity.
   A person who commits solicitation of commercial sexual activity is guilty of a class “D” felony and must register as a tier III sex offender.
   “Commercial sexual activity” is defined in Code section 710A.1 to mean any sex act or sexually explicit performance for which anything of value is given, promised to, or received by any person and includes but is not limited to prostitution, participation in the production of pornography, and performance in strip clubs.
   The bill also defines the term “visual depiction” within Code chapter 728 to include any picture, slide, photograph, digital or electronic image, negative image, undeveloped film, motion picture, videotape, digital or electronic recording, live transmission, or other pictorial or three-dimensional representation.
   The bill modifies the elements of the criminal offense of sexual exploitation of a minor in Code section 728.12(1) and (3) by substituting references for a computer and other types of storage systems with the term “visual depiction” as defined by the bill. The bill also substitutes “visual depiction” for storage systems referenced in Code section 728.14 to conform with the sexual exploitation of a minor changes in Code section 728.12.
   In addition, the word “visual” is added before the word “depiction” throughout Code chapter 728 to conform with the changes made by the bill.
   The changes in the bill to the criminal offense of sexual exploitation of a minor in Code section 728.12(3) are in response to State v. Muhlenbruch, 728 N.W.2d 212 (Iowa 2007).
   The amendment to Code section 915.87 relates to compensation awarded to a victim of a crime in Code section 915.86. The bill specifies that compensation for an injury will be paid to a victim involved in commercial sexual activity under the age of 18, even if the victim assisted, attempted, or committed a criminal act.