|
|
| To amend sections 2151.022 and 2152.02 and to enact | 1 |
| section 2907.324 of the Revised Code to prohibit a | 2 |
| minor, by use of a telecommunications device or | 3 |
| other means, from knowingly creating, receiving, | 4 |
| exchanging, sending, or possessing a photograph or | 5 |
| other material showing a minor in a state of | 6 |
| nudity. | 7 |
| Section 1. That sections 2151.022 and 2152.02 be amended and | 8 |
| section 2907.324 of the Revised Code be enacted to read as | 9 |
| follows: | 10 |
| Sec. 2151.022. As used in this chapter, "unruly child" | 11 |
| includes any of the following: | 12 |
| (A) Any child who does not submit to the reasonable control | 13 |
| of the child's parents, teachers, guardian, or custodian, by | 14 |
| reason of being wayward or habitually disobedient; | 15 |
| (B) Any child who is an habitual truant from school and who | 16 |
| previously has not been adjudicated an unruly child for being an | 17 |
| habitual truant; | 18 |
| (C) Any child who behaves in a manner as to injure or | 19 |
| endanger the child's own health or morals or the health or morals | 20 |
| of others; | 21 |
| (D) Any child who violates | 22 |
| Code for the first time or who violates any other law, other than | 23 |
| division (C) of section 2907.39, division (A) of section 2923.211, | 24 |
| division (C)(1) or (D) of section 2925.55, or section 2151.87 of | 25 |
| the Revised Code, that is applicable only to a child. | 26 |
| Sec. 2152.02. As used in this chapter: | 27 |
| (A) "Act charged" means the act that is identified in a | 28 |
| complaint, indictment, or information alleging that a child is a | 29 |
| delinquent child. | 30 |
| (B) "Admitted to a department of youth services facility" | 31 |
| includes admission to a facility operated, or contracted for, by | 32 |
| the department and admission to a comparable facility outside this | 33 |
| state by another state or the United States. | 34 |
| (C)(1) "Child" means a person who is under eighteen years of | 35 |
| age, except as otherwise provided in divisions (C)(2) to (7) of | 36 |
| this section. | 37 |
| (2) Subject to division (C)(3) of this section, any person | 38 |
| who violates a federal or state law or a municipal ordinance prior | 39 |
| to attaining eighteen years of age shall be deemed a "child" | 40 |
| irrespective of that person's age at the time the complaint with | 41 |
| respect to that violation is filed or the hearing on the complaint | 42 |
| is held. | 43 |
| (3) Any person who, while under eighteen years of age, | 44 |
| commits an act that would be a felony if committed by an adult and | 45 |
| who is not taken into custody or apprehended for that act until | 46 |
| after the person attains twenty-one years of age is not a child in | 47 |
| relation to that act. | 48 |
| (4) Any person whose case is transferred for criminal | 49 |
| prosecution pursuant to section 2152.12 of the Revised Code shall | 50 |
| be deemed after the transfer not to be a child in the transferred | 51 |
| case. | 52 |
| (5) Any person whose case is transferred for criminal | 53 |
| prosecution pursuant to section 2152.12 of the Revised Code and | 54 |
| who subsequently is convicted of or pleads guilty to a felony in | 55 |
| that case, and any person who is adjudicated a delinquent child | 56 |
| for the commission of an act, who has a serious youthful offender | 57 |
| dispositional sentence imposed for the act pursuant to section | 58 |
| 2152.13 of the Revised Code, and whose adult portion of the | 59 |
| dispositional sentence is invoked pursuant to section 2152.14 of | 60 |
| the Revised Code, shall be deemed after the transfer or invocation | 61 |
| not to be a child in any case in which a complaint is filed | 62 |
| against the person. | 63 |
| (6) The juvenile court has jurisdiction over a person who is | 64 |
| adjudicated a delinquent child or juvenile traffic offender prior | 65 |
| to attaining eighteen years of age until the person attains | 66 |
| twenty-one years of age, and, for purposes of that jurisdiction | 67 |
| related to that adjudication, except as otherwise provided in this | 68 |
| division, a person who is so adjudicated a delinquent child or | 69 |
| juvenile traffic offender shall be deemed a "child" until the | 70 |
| person attains twenty-one years of age. If a person is so | 71 |
| adjudicated a delinquent child or juvenile traffic offender and | 72 |
| the court makes a disposition of the person under this chapter, at | 73 |
| any time after the person attains eighteen years of age, the | 74 |
| places at which the person may be held under that disposition are | 75 |
| not limited to places authorized under this chapter solely for | 76 |
| confinement of children, and the person may be confined under that | 77 |
| disposition, in accordance with division (F)(2) of section 2152.26 | 78 |
| of the Revised Code, in places other than those authorized under | 79 |
| this chapter solely for confinement of children. | 80 |
| (7) Any person who, while eighteen years of age, violates | 81 |
| division (A)(1) or (2) of section 2919.27 of the Revised Code by | 82 |
| violating a protection order issued or consent agreement approved | 83 |
| under section 2151.34 or 3113.31 of the Revised Code shall be | 84 |
| considered a child for the purposes of that violation of section | 85 |
| 2919.27 of the Revised Code. | 86 |
| (D) "Chronic truant" means any child of compulsory school age | 87 |
| who is absent without legitimate excuse for absence from the | 88 |
| public school the child is supposed to attend for seven or more | 89 |
| consecutive school days, ten or more school days in one school | 90 |
| month, or fifteen or more school days in a school year. | 91 |
| (E) "Community corrections facility," "public safety beds," | 92 |
| "release authority," and "supervised release" have the same | 93 |
| meanings as in section 5139.01 of the Revised Code. | 94 |
| (F) "Delinquent child" includes any of the following: | 95 |
| (1) Any child, except a juvenile traffic offender, who | 96 |
| violates any law of this state or the United States, or any | 97 |
| ordinance of a political subdivision of the state, that would be | 98 |
| an offense if committed by an adult; | 99 |
| (2) Any child who violates any lawful order of the court made | 100 |
| under this chapter or under Chapter 2151. of the Revised Code | 101 |
| other than an order issued under section 2151.87 of the Revised | 102 |
| Code; | 103 |
| (3) Any child who violates section 2907.324 of the Revised | 104 |
| Code on a second or subsequent offense or who violates division | 105 |
| (C) of section 2907.39, division (A) of section 2923.211, or | 106 |
| division (C)(1) or (D) of section 2925.55 of the Revised Code; | 107 |
| (4) Any child who is a habitual truant and who previously has | 108 |
| been adjudicated an unruly child for being a habitual truant; | 109 |
| (5) Any child who is a chronic truant. | 110 |
| (G) "Discretionary serious youthful offender" means a person | 111 |
| who is eligible for a discretionary SYO and who is not transferred | 112 |
| to adult court under a mandatory or discretionary transfer. | 113 |
| (H) "Discretionary SYO" means a case in which the juvenile | 114 |
| court, in the juvenile court's discretion, may impose a serious | 115 |
| youthful offender disposition under section 2152.13 of the Revised | 116 |
| Code. | 117 |
| (I) "Discretionary transfer" means that the juvenile court | 118 |
| has discretion to transfer a case for criminal prosecution under | 119 |
| division (B) of section 2152.12 of the Revised Code. | 120 |
| (J) "Drug abuse offense," "felony drug abuse offense," and | 121 |
| "minor drug possession offense" have the same meanings as in | 122 |
| section 2925.01 of the Revised Code. | 123 |
| (K) "Electronic monitoring" and "electronic monitoring | 124 |
| device" have the same meanings as in section 2929.01 of the | 125 |
| Revised Code. | 126 |
| (L) "Economic loss" means any economic detriment suffered by | 127 |
| a victim of a delinquent act or juvenile traffic offense as a | 128 |
| direct and proximate result of the delinquent act or juvenile | 129 |
| traffic offense and includes any loss of income due to lost time | 130 |
| at work because of any injury caused to the victim and any | 131 |
| property loss, medical cost, or funeral expense incurred as a | 132 |
| result of the delinquent act or juvenile traffic offense. | 133 |
| "Economic loss" does not include non-economic loss or any punitive | 134 |
| or exemplary damages. | 135 |
| (M) "Firearm" has the same meaning as in section 2923.11 of | 136 |
| the Revised Code. | 137 |
| (N) "Juvenile traffic offender" means any child who violates | 138 |
| any traffic law, traffic ordinance, or traffic regulation of this | 139 |
| state, the United States, or any political subdivision of this | 140 |
| state, other than a resolution, ordinance, or regulation of a | 141 |
| political subdivision of this state the violation of which is | 142 |
| required to be handled by a parking violations bureau or a joint | 143 |
| parking violations bureau pursuant to Chapter 4521. of the Revised | 144 |
| Code. | 145 |
| (O) A "legitimate excuse for absence from the public school | 146 |
| the child is supposed to attend" has the same meaning as in | 147 |
| section 2151.011 of the Revised Code. | 148 |
| (P) "Mandatory serious youthful offender" means a person who | 149 |
| is eligible for a mandatory SYO and who is not transferred to | 150 |
| adult court under a mandatory or discretionary transfer. | 151 |
| (Q) "Mandatory SYO" means a case in which the juvenile court | 152 |
| is required to impose a mandatory serious youthful offender | 153 |
| disposition under section 2152.13 of the Revised Code. | 154 |
| (R) "Mandatory transfer" means that a case is required to be | 155 |
| transferred for criminal prosecution under division (A) of section | 156 |
| 2152.12 of the Revised Code. | 157 |
| (S) "Mental illness" has the same meaning as in section | 158 |
| 5122.01 of the Revised Code. | 159 |
| (T) "Mentally retarded person" has the same meaning as in | 160 |
| section 5123.01 of the Revised Code. | 161 |
| (U) "Monitored time" and "repeat violent offender" have the | 162 |
| same meanings as in section 2929.01 of the Revised Code. | 163 |
| (V) "Of compulsory school age" has the same meaning as in | 164 |
| section 3321.01 of the Revised Code. | 165 |
| (W) "Public record" has the same meaning as in section 149.43 | 166 |
| of the Revised Code. | 167 |
| (X) "Serious youthful offender" means a person who is | 168 |
| eligible for a mandatory SYO or discretionary SYO but who is not | 169 |
| transferred to adult court under a mandatory or discretionary | 170 |
| transfer. | 171 |
| (Y) "Sexually oriented offense," "juvenile offender | 172 |
| registrant," "child-victim oriented offense," "tier I sex | 173 |
| offender/child-victim offender," "tier II sex | 174 |
| offender/child-victim offender," "tier III sex | 175 |
| offender/child-victim offender," and "public registry-qualified | 176 |
| juvenile offender registrant" have the same meanings as in section | 177 |
| 2950.01 of the Revised Code. | 178 |
| (Z) "Traditional juvenile" means a case that is not | 179 |
| transferred to adult court under a mandatory or discretionary | 180 |
| transfer, that is eligible for a disposition under sections | 181 |
| 2152.16, 2152.17, 2152.19, and 2152.20 of the Revised Code, and | 182 |
| that is not eligible for a disposition under section 2152.13 of | 183 |
| the Revised Code. | 184 |
| (AA) "Transfer" means the transfer for criminal prosecution | 185 |
| of a case involving the alleged commission by a child of an act | 186 |
| that would be an offense if committed by an adult from the | 187 |
| juvenile court to the appropriate court that has jurisdiction of | 188 |
| the offense. | 189 |
| (BB) "Category one offense" means any of the following: | 190 |
| (1) A violation of section 2903.01 or 2903.02 of the Revised | 191 |
| Code; | 192 |
| (2) A violation of section 2923.02 of the Revised Code | 193 |
| involving an attempt to commit aggravated murder or murder. | 194 |
| (CC) "Category two offense" means any of the following: | 195 |
| (1) A violation of section 2903.03, 2905.01, 2907.02, | 196 |
| 2909.02, 2911.01, or 2911.11 of the Revised Code; | 197 |
| (2) A violation of section 2903.04 of the Revised Code that | 198 |
| is a felony of the first degree; | 199 |
| (3) A violation of section 2907.12 of the Revised Code as it | 200 |
| existed prior to September 3, 1996. | 201 |
| (DD) "Non-economic loss" means nonpecuniary harm suffered by | 202 |
| a victim of a delinquent act or juvenile traffic offense as a | 203 |
| result of or related to the delinquent act or juvenile traffic | 204 |
| offense, including, but not limited to, pain and suffering; loss | 205 |
| of society, consortium, companionship, care, assistance, | 206 |
| attention, protection, advice, guidance, counsel, instruction, | 207 |
| training, or education; mental anguish; and any other intangible | 208 |
| loss. | 209 |
| Sec. 2907.324. (A) No minor, by use of a telecommunications | 210 |
| device or other means, shall knowingly create, receive, exchange, | 211 |
| send, or possess a photograph, video, or other material that shows | 212 |
| a minor, who is not the actor's child or ward, in a state of | 213 |
| nudity. | 214 |
| (B) This section does not apply under any of the following | 215 |
| circumstances: | 216 |
| (1) The photograph, video, or other material is or is to be | 217 |
| created, received, exchanged, sent, or possessed for a bona fide | 218 |
| artistic, medical, scientific, educational, religious, | 219 |
| governmental, judicial, or other proper purpose by or to a | 220 |
| physician, psychologist, sociologist, scientist, teacher, person | 221 |
| pursuing bona fide studies for research, librarian, clergyman, | 222 |
| prosecutor, judge, or other person having a proper interest in the | 223 |
| photograph, video, or other material. | 224 |
| (2) The photograph, video, or other material depicts or | 225 |
| appears to depict a minor less than thirteen years of age. | 226 |
| (3) The photograph, video, or other material depicts a minor | 227 |
| engaged in sexual activity. | 228 |
| (4) The photograph, video, or other material depicts | 229 |
| sado-masochistic abuse or violent conduct. | 230 |
| (5) The minor sends the photograph, video, or other material | 231 |
| for pecuniary gain or in exchange for a thing of value or for the | 232 |
| promise of pecuniary gain or a thing of value. | 233 |
| (6) The minor who possesses or receives the photograph, | 234 |
| video, or other material paid money or exchanged a thing of value | 235 |
| for the photograph, video, or other material or promised to pay | 236 |
| money or exchange a thing of value for the photograph, video, or | 237 |
| other material. | 238 |
| (7) The minor sends ten or more different photographs, | 239 |
| videos, or other materials in violation of this section. | 240 |
| (8) The minor sends photographs, videos, or other materials | 241 |
| in violation of this section to ten or more different | 242 |
| telecommunication devices. | 243 |
| (9) The minor previously has been adjudicated two or more | 244 |
| times to be in violation of this section. | 245 |
| (C) It is no defense to a charge under this section that the | 246 |
| minor creates, receives, exchanges, sends, or possesses a | 247 |
| photograph, video, or other material that shows themselves in a | 248 |
| state of nudity. | 249 |
| (D) Whoever violates this section is guilty of illegal use of | 250 |
| a telecommunications device involving a minor in a state of | 251 |
| nudity. A minor shall be adjudged an unruly child on the first | 252 |
| offense, with any disposition of the case that is appropriate | 253 |
| under Chapter 2151. of the Revised Code. A second or subsequent | 254 |
| offense is a delinquent act that would be a misdemeanor of the | 255 |
| first degree if it could be committed as an adult. | 256 |
| (E) This section does not preclude a county prosecuting | 257 |
| attorney from pursuing any felony charge against a minor who has | 258 |
| used a telecommunications device or other means to knowingly | 259 |
| create, receive, exchange, send, or possess a photograph, video, | 260 |
| or other material that shows a minor in a state of nudity. | 261 |
| (F) A violation of this section does not make a minor subject | 262 |
| to the registration and notification requirements of Chapter 2950. | 263 |
| of the Revised Code. | 264 |
| (G) As used in this section, "state of nudity" means a lewd | 265 |
| depiction, exhibition, representation, or showing of human male or | 266 |
| female genitals, pubic area, or buttocks with less than a full, | 267 |
| opaque covering, or of a female breast with less than a full, | 268 |
| opaque covering of any portion thereof below the top of the | 269 |
| nipple, or of covered male genitals in a discernibly turgid state, | 270 |
| or involving a graphic focus on human male or female genitals. | 271 |
| Section 2. That existing sections 2151.022 and 2152.02 of | 272 |
| the Revised Code are hereby repealed. | 273 |
| Section 3. Section 2151.022 of the Revised Code is presented | 274 |
| in this act as a composite of the section as amended by both Am. | 275 |
| Sub. S.B. 53 and Am. Sub. H.B. 23 of the 126th General Assembly. | 276 |
| The General Assembly, applying the principle stated in division | 277 |
| (B) of section 1.52 of the Revised Code that amendments are to be | 278 |
| harmonized if reasonably capable of simultaneous operation, finds | 279 |
| that the composite is the resulting version of the section in | 280 |
| effect prior to the effective date of the section as presented in | 281 |
| this act. | 282 |