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To amend sections 2151.022, 2152.02, and 2907.323 and | 1 |
to enact section 2907.324 of the Revised Code to | 2 |
prohibit a minor, by use of a telecommunications | 3 |
device, from knowingly sharing, exchanging, | 4 |
sending, or posting a photograph, video, or other | 5 |
material that shows a minor in a state of nudity | 6 |
and to define a state of nudity for purposes of | 7 |
this prohibition, to limit the offense of "illegal | 8 |
use of a minor in a nudity-oriented material or | 9 |
performance" to acts committed by persons 18 years | 10 |
of age or older, and to prohibit a minor from | 11 |
committing by means other than a | 12 |
telecommunications device delinquent acts that | 13 |
would be the offense of "illegal use of a minor in | 14 |
a nudity-oriented material or performance" if | 15 |
committed by an adult. | 16 |
Section 1. That sections 2151.022, 2152.02, and 2907.323 be | 17 |
amended and section 2907.324 of the Revised Code be enacted to | 18 |
read as follows: | 19 |
Sec. 2151.022. As used in this chapter, "unruly child" | 20 |
includes any of the following: | 21 |
(A) Any child who does not submit to the reasonable control | 22 |
of the child's parents, teachers, guardian, or custodian, by | 23 |
reason of being wayward or habitually disobedient; | 24 |
(B) Any child who is an habitual truant from school and who | 25 |
previously has not been adjudicated an unruly child for being an | 26 |
habitual truant; | 27 |
(C) Any child who behaves in a manner as to injure or | 28 |
endanger the child's own health or morals or the health or morals | 29 |
of others; | 30 |
(D) Any child who violates a law, other than division | 31 |
(A)(1)(b), (B)(2), (C), or (D)(2) of section 2907.324, division | 32 |
(C) of section 2907.39, division (A) of section 2923.211, division | 33 |
(C)(1) or (D) of section 2925.55, or section 2151.87 of the | 34 |
Revised Code, that is applicable only to a child. | 35 |
Sec. 2152.02. As used in this chapter: | 36 |
(A) "Act charged" means the act that is identified in a | 37 |
complaint, indictment, or information alleging that a child is a | 38 |
delinquent child. | 39 |
(B) "Admitted to a department of youth services facility" | 40 |
includes admission to a facility operated, or contracted for, by | 41 |
the department and admission to a comparable facility outside this | 42 |
state by another state or the United States. | 43 |
(C)(1) "Child" means a person who is under eighteen years of | 44 |
age, except as otherwise provided in divisions (C)(2) to (7) of | 45 |
this section. | 46 |
(2) Subject to division (C)(3) of this section, any person | 47 |
who violates a federal or state law or a municipal ordinance prior | 48 |
to attaining eighteen years of age shall be deemed a "child" | 49 |
irrespective of that person's age at the time the complaint with | 50 |
respect to that violation is filed or the hearing on the complaint | 51 |
is held. | 52 |
(3) Any person who, while under eighteen years of age, | 53 |
commits an act that would be a felony if committed by an adult and | 54 |
who is not taken into custody or apprehended for that act until | 55 |
after the person attains twenty-one years of age is not a child in | 56 |
relation to that act. | 57 |
(4) Any person whose case is transferred for criminal | 58 |
prosecution pursuant to section 2152.12 of the Revised Code shall | 59 |
be deemed after the transfer not to be a child in the transferred | 60 |
case. | 61 |
(5) Any person whose case is transferred for criminal | 62 |
prosecution pursuant to section 2152.12 of the Revised Code and | 63 |
who subsequently is convicted of or pleads guilty to a felony in | 64 |
that case, and any person who is adjudicated a delinquent child | 65 |
for the commission of an act, who has a serious youthful offender | 66 |
dispositional sentence imposed for the act pursuant to section | 67 |
2152.13 of the Revised Code, and whose adult portion of the | 68 |
dispositional sentence is invoked pursuant to section 2152.14 of | 69 |
the Revised Code, shall be deemed after the transfer or invocation | 70 |
not to be a child in any case in which a complaint is filed | 71 |
against the person. | 72 |
(6) The juvenile court has jurisdiction over a person who is | 73 |
adjudicated a delinquent child or juvenile traffic offender prior | 74 |
to attaining eighteen years of age until the person attains | 75 |
twenty-one years of age, and, for purposes of that jurisdiction | 76 |
related to that adjudication, except as otherwise provided in this | 77 |
division, a person who is so adjudicated a delinquent child or | 78 |
juvenile traffic offender shall be deemed a "child" until the | 79 |
person attains twenty-one years of age. If a person is so | 80 |
adjudicated a delinquent child or juvenile traffic offender and | 81 |
the court makes a disposition of the person under this chapter, at | 82 |
any time after the person attains eighteen years of age, the | 83 |
places at which the person may be held under that disposition are | 84 |
not limited to places authorized under this chapter solely for | 85 |
confinement of children, and the person may be confined under that | 86 |
disposition, in accordance with division (F)(2) of section 2152.26 | 87 |
of the Revised Code, in places other than those authorized under | 88 |
this chapter solely for confinement of children. | 89 |
(7) Any person who, while eighteen years of age, violates | 90 |
division (A)(1) or (2) of section 2919.27 of the Revised Code by | 91 |
violating a protection order issued or consent agreement approved | 92 |
under section 2151.34 or 3113.31 of the Revised Code shall be | 93 |
considered a child for the purposes of that violation of section | 94 |
2919.27 of the Revised Code. | 95 |
(D) "Chronic truant" means any child of compulsory school age | 96 |
who is absent without legitimate excuse for absence from the | 97 |
public school the child is supposed to attend for seven or more | 98 |
consecutive school days, ten or more school days in one school | 99 |
month, or fifteen or more school days in a school year. | 100 |
(E) "Community corrections facility," "public safety beds," | 101 |
"release authority," and "supervised release" have the same | 102 |
meanings as in section 5139.01 of the Revised Code. | 103 |
(F) "Delinquent child" includes any of the following: | 104 |
(1) Any child, except a juvenile traffic offender, who | 105 |
violates any law of this state or the United States, or any | 106 |
ordinance of a political subdivision of the state, that would be | 107 |
an offense if committed by an adult; | 108 |
(2) Any child who violates any lawful order of the court made | 109 |
under this chapter or under Chapter 2151. of the Revised Code | 110 |
other than an order issued under section 2151.87 of the Revised | 111 |
Code; | 112 |
(3) Any child who violates division (A)(1)(b), (B)(2), (C), | 113 |
or (D)(2) of section 2907.324, division (C) of section 2907.39, | 114 |
division (A) of section 2923.211, or division (C)(1) or (D) of | 115 |
section 2925.55 of the Revised Code; | 116 |
(4) Any child who is a habitual truant and who previously has | 117 |
been adjudicated an unruly child for being a habitual truant; | 118 |
(5) Any child who is a chronic truant. | 119 |
(G) "Discretionary serious youthful offender" means a person | 120 |
who is eligible for a discretionary SYO and who is not transferred | 121 |
to adult court under a mandatory or discretionary transfer. | 122 |
(H) "Discretionary SYO" means a case in which the juvenile | 123 |
court, in the juvenile court's discretion, may impose a serious | 124 |
youthful offender disposition under section 2152.13 of the Revised | 125 |
Code. | 126 |
(I) "Discretionary transfer" means that the juvenile court | 127 |
has discretion to transfer a case for criminal prosecution under | 128 |
division (B) of section 2152.12 of the Revised Code. | 129 |
(J) "Drug abuse offense," "felony drug abuse offense," and | 130 |
"minor drug possession offense" have the same meanings as in | 131 |
section 2925.01 of the Revised Code. | 132 |
(K) "Electronic monitoring" and "electronic monitoring | 133 |
device" have the same meanings as in section 2929.01 of the | 134 |
Revised Code. | 135 |
(L) "Economic loss" means any economic detriment suffered by | 136 |
a victim of a delinquent act or juvenile traffic offense as a | 137 |
direct and proximate result of the delinquent act or juvenile | 138 |
traffic offense and includes any loss of income due to lost time | 139 |
at work because of any injury caused to the victim and any | 140 |
property loss, medical cost, or funeral expense incurred as a | 141 |
result of the delinquent act or juvenile traffic offense. | 142 |
"Economic loss" does not include non-economic loss or any punitive | 143 |
or exemplary damages. | 144 |
(M) "Firearm" has the same meaning as in section 2923.11 of | 145 |
the Revised Code. | 146 |
(N) "Juvenile traffic offender" means any child who violates | 147 |
any traffic law, traffic ordinance, or traffic regulation of this | 148 |
state, the United States, or any political subdivision of this | 149 |
state, other than a resolution, ordinance, or regulation of a | 150 |
political subdivision of this state the violation of which is | 151 |
required to be handled by a parking violations bureau or a joint | 152 |
parking violations bureau pursuant to Chapter 4521. of the Revised | 153 |
Code. | 154 |
(O) A "legitimate excuse for absence from the public school | 155 |
the child is supposed to attend" has the same meaning as in | 156 |
section 2151.011 of the Revised Code. | 157 |
(P) "Mandatory serious youthful offender" means a person who | 158 |
is eligible for a mandatory SYO and who is not transferred to | 159 |
adult court under a mandatory or discretionary transfer. | 160 |
(Q) "Mandatory SYO" means a case in which the juvenile court | 161 |
is required to impose a mandatory serious youthful offender | 162 |
disposition under section 2152.13 of the Revised Code. | 163 |
(R) "Mandatory transfer" means that a case is required to be | 164 |
transferred for criminal prosecution under division (A) of section | 165 |
2152.12 of the Revised Code. | 166 |
(S) "Mental illness" has the same meaning as in section | 167 |
5122.01 of the Revised Code. | 168 |
(T) "Mentally retarded person" has the same meaning as in | 169 |
section 5123.01 of the Revised Code. | 170 |
(U) "Monitored time" and "repeat violent offender" have the | 171 |
same meanings as in section 2929.01 of the Revised Code. | 172 |
(V) "Of compulsory school age" has the same meaning as in | 173 |
section 3321.01 of the Revised Code. | 174 |
(W) "Public record" has the same meaning as in section 149.43 | 175 |
of the Revised Code. | 176 |
(X) "Serious youthful offender" means a person who is | 177 |
eligible for a mandatory SYO or discretionary SYO but who is not | 178 |
transferred to adult court under a mandatory or discretionary | 179 |
transfer. | 180 |
(Y) "Sexually oriented offense," "juvenile offender | 181 |
registrant," "child-victim oriented offense," "tier I sex | 182 |
offender/child-victim offender," "tier II sex | 183 |
offender/child-victim offender," "tier III sex | 184 |
offender/child-victim offender," and "public registry-qualified | 185 |
juvenile offender registrant" have the same meanings as in section | 186 |
2950.01 of the Revised Code. | 187 |
(Z) "Traditional juvenile" means a case that is not | 188 |
transferred to adult court under a mandatory or discretionary | 189 |
transfer, that is eligible for a disposition under sections | 190 |
2152.16, 2152.17, 2152.19, and 2152.20 of the Revised Code, and | 191 |
that is not eligible for a disposition under section 2152.13 of | 192 |
the Revised Code. | 193 |
(AA) "Transfer" means the transfer for criminal prosecution | 194 |
of a case involving the alleged commission by a child of an act | 195 |
that would be an offense if committed by an adult from the | 196 |
juvenile court to the appropriate court that has jurisdiction of | 197 |
the offense. | 198 |
(BB) "Category one offense" means any of the following: | 199 |
(1) A violation of section 2903.01 or 2903.02 of the Revised | 200 |
Code; | 201 |
(2) A violation of section 2923.02 of the Revised Code | 202 |
involving an attempt to commit aggravated murder or murder. | 203 |
(CC) "Category two offense" means any of the following: | 204 |
(1) A violation of section 2903.03, 2905.01, 2907.02, | 205 |
2909.02, 2911.01, or 2911.11 of the Revised Code; | 206 |
(2) A violation of section 2903.04 of the Revised Code that | 207 |
is a felony of the first degree; | 208 |
(3) A violation of section 2907.12 of the Revised Code as it | 209 |
existed prior to September 3, 1996. | 210 |
(DD) "Non-economic loss" means nonpecuniary harm suffered by | 211 |
a victim of a delinquent act or juvenile traffic offense as a | 212 |
result of or related to the delinquent act or juvenile traffic | 213 |
offense, including, but not limited to, pain and suffering; loss | 214 |
of society, consortium, companionship, care, assistance, | 215 |
attention, protection, advice, guidance, counsel, instruction, | 216 |
training, or education; mental anguish; and any other intangible | 217 |
loss. | 218 |
Sec. 2907.323. (A) No person who is eighteen years of age or | 219 |
older shall do any of the following: | 220 |
(1) Photograph any minor who is not the person's child or | 221 |
ward in a state of nudity, or create, direct, produce, or transfer | 222 |
any material or performance that shows the minor in a state of | 223 |
nudity, unless both of the following apply: | 224 |
(a) The material or performance is, or is to be, sold, | 225 |
disseminated, displayed, possessed, controlled, brought or caused | 226 |
to be brought into this state, or presented for a bona fide | 227 |
artistic, medical, scientific, educational, religious, | 228 |
governmental, judicial, or other proper purpose, by or to a | 229 |
physician, psychologist, sociologist, scientist, teacher, person | 230 |
pursuing bona fide studies or research, librarian, member of the | 231 |
clergy, attorney, prosecutor, judge, or other person having a | 232 |
proper interest in the material or performance; | 233 |
(b) The minor's parents, guardian, or custodian consents in | 234 |
writing to the photographing of the minor, to the use of the minor | 235 |
in the material or performance, or to the transfer of the material | 236 |
and to the specific manner in which the material or performance is | 237 |
to be used. | 238 |
(2) Consent to the photographing of the person's minor child | 239 |
or ward, or photograph the person's minor child or ward, in a | 240 |
state of nudity or consent to the use of the person's minor child | 241 |
or ward in a state of nudity in any material or performance, or | 242 |
use or transfer a material or performance of that nature, unless | 243 |
the material or performance is sold, disseminated, displayed, | 244 |
possessed, controlled, brought or caused to be brought into this | 245 |
state, or presented for a bona fide artistic, medical, scientific, | 246 |
educational, religious, governmental, judicial, or other proper | 247 |
purpose, by or to a physician, psychologist, sociologist, | 248 |
scientist, teacher, person pursuing bona fide studies or research, | 249 |
librarian, member of the clergy, attorney, prosecutor, judge, or | 250 |
other person having a proper interest in the material or | 251 |
performance; | 252 |
(3) Possess or view any material or performance that shows a | 253 |
minor who is not the person's child or ward in a state of nudity, | 254 |
unless one of the following applies: | 255 |
(a) The material or performance is sold, disseminated, | 256 |
displayed, possessed, controlled, brought or caused to be brought | 257 |
into this state, or presented for a bona fide artistic, medical, | 258 |
scientific, educational, religious, governmental, judicial, or | 259 |
other proper purpose, by or to a physician, psychologist, | 260 |
sociologist, scientist, teacher, person pursuing bona fide studies | 261 |
or research, librarian, member of the clergy, attorney, | 262 |
prosecutor, judge, or other person having a proper interest in the | 263 |
material or performance. | 264 |
(b) The person knows that the parents, guardian, or custodian | 265 |
has consented in writing to the photographing or use of the minor | 266 |
in a state of nudity and to the manner in which the material or | 267 |
performance is used or transferred. | 268 |
(B) Whoever violates this section is guilty of illegal use of | 269 |
a minor in a nudity-oriented material or performance. Whoever | 270 |
violates division (A)(1) or (2) of this section is guilty of a | 271 |
felony of the second degree. Except as otherwise provided in this | 272 |
division, whoever violates division (A)(3) of this section is | 273 |
guilty of a felony of the fifth degree. If the offender previously | 274 |
has been convicted of or pleaded guilty to a violation of this | 275 |
section or section 2907.321 or 2907.322 of the Revised Code, | 276 |
illegal use of a minor in a nudity-oriented material or | 277 |
performance in violation of division (A)(3) of this section is a | 278 |
felony of the fourth degree. If the offender who violates division | 279 |
(A)(1) or (2) of this section also is convicted of or pleads | 280 |
guilty to a specification as described in section 2941.1422 of the | 281 |
Revised Code that was included in the indictment, count in the | 282 |
indictment, or information charging the offense, the court shall | 283 |
sentence the offender to a mandatory prison term as provided in | 284 |
division (D)(7) of section 2929.14 of the Revised Code and shall | 285 |
order the offender to make restitution as provided in division | 286 |
(B)(8) of section 2929.18 of the Revised Code. | 287 |
Sec. 2907.324. (A)(1) No minor, by use of a | 288 |
telecommunications device, shall do either of the following: | 289 |
(a) Knowingly send, post, exchange, or share a photograph, | 290 |
video, or other material that shows the minor in a state of | 291 |
nudity; | 292 |
(b) Knowingly send, post, exchange, or share a photograph, | 293 |
video, or other material that shows another minor in a state of | 294 |
nudity. | 295 |
(2) Division (A)(1) of this section does not apply to a minor | 296 |
who sends, posts, exchanges, or shares a photograph, video, or | 297 |
other material that shows the minor or another minor in a state of | 298 |
nudity in connection with a criminal investigation or prosecution, | 299 |
civil action, or other proper purpose. | 300 |
(B)(1) No minor, by means other than the use of a | 301 |
telecommunications device, shall knowingly photograph the minor in | 302 |
a state of nudity or knowingly create, direct, produce, or | 303 |
transfer any material or performance that shows the minor in a | 304 |
state of nudity. | 305 |
(2) No minor, by means other than the use of a | 306 |
telecommunications device, shall knowingly photograph another | 307 |
minor who is not the minor's child or ward in a state of nudity or | 308 |
knowingly create, direct, produce, or transfer any material or | 309 |
performance that shows another minor who is not the minor's child | 310 |
or ward in a state of nudity. | 311 |
(3) Divisions (B)(1) and (2) of this section do not apply if | 312 |
both of the following apply: | 313 |
(a) The material or performance is, or is to be, sold, | 314 |
disseminated, displayed, shared, controlled, brought or caused to | 315 |
be brought into this state, or presented for a bona fide artistic, | 316 |
medical, scientific, educational, religious, governmental, | 317 |
judicial, or other proper purpose, by or to a physician, | 318 |
psychologist, sociologist, scientist, teacher, person pursuing | 319 |
bona fide studies or research, librarian, member of the clergy, | 320 |
attorney, prosecutor, judge, or other person having a proper | 321 |
interest in the material or performance. | 322 |
(b) The minor's parents, guardian, or custodian consents in | 323 |
writing to the photographing of the minor, to the use of the minor | 324 |
in the material or performance, or to the transfer of the material | 325 |
and to the specific manner in which the material or performance is | 326 |
to be used. | 327 |
(C) No minor shall knowingly consent to the photographing of | 328 |
the minor's minor child or ward, or photograph the minor's child | 329 |
or ward, in a state of nudity or knowingly consent to the use of | 330 |
the minor's child or ward in a state of nudity in any material or | 331 |
performance, or knowingly use or transfer a material or | 332 |
performance of that nature, unless the material or performance is | 333 |
sold, disseminated, displayed, shared, controlled, brought or | 334 |
caused to be brought into this state, or presented for a bona fide | 335 |
artistic, medical, scientific, educational, religious, | 336 |
governmental, judicial, or other proper purpose, by or to a | 337 |
physician, psychologist, sociologist, scientist, teacher, person | 338 |
pursuing bona fide studies or research, librarian, member of the | 339 |
clergy, attorney, prosecutor, judge, or other person having a | 340 |
proper interest in the material or performance. | 341 |
(D)(1) No minor shall knowingly share or view, by means other | 342 |
than a telecommunications device, any material or performance that | 343 |
shows the minor in a state of nudity. | 344 |
(2) No minor shall knowingly share or view, by means other | 345 |
than a telecommunications device, any material or performance that | 346 |
shows another minor who is not the minor's child or ward in a | 347 |
state of nudity. | 348 |
(3) Divisions (D)(1) and (2) of this section do not apply if | 349 |
either of the following applies: | 350 |
(a) The material or performance is sold, disseminated, | 351 |
displayed, shared, controlled, brought or caused to be brought | 352 |
into this state, or presented for a bona fide artistic, medical, | 353 |
scientific, educational, religious, governmental, judicial, or | 354 |
other proper purpose, by or to a physician, psychologist, | 355 |
sociologist, scientist, teacher, person pursuing bona fide studies | 356 |
or research, librarian, member of the clergy, attorney, | 357 |
prosecutor, judge, or other person having a proper interest in the | 358 |
material or performance. | 359 |
(b) The minor knows that the minor's or other minor's | 360 |
parents, guardian, or custodian has consented in writing to the | 361 |
photographing or use of the minor in a state of nudity and to the | 362 |
manner in which the material or performance is used or | 363 |
transferred. | 364 |
(E) Whoever violates division (A)(1) of this section is | 365 |
guilty of sexting. A minor who violates division (A)(1)(a) of this | 366 |
section shall be adjudged an unruly child, with such disposition | 367 |
of the case as may be appropriate under Chapter 2151. of the | 368 |
Revised Code. A violation of division (A)(1)(b) of this section is | 369 |
a delinquent act that would be a misdemeanor of the third degree | 370 |
on the first offense and a misdemeanor of the first degree on each | 371 |
subsequent offense if it could be committed by an adult. Whoever | 372 |
violates division (B), (C), or (D) of this section is guilty of | 373 |
delinquent use of a minor in a nudity-oriented material or | 374 |
performance. A minor who violates division (B)(1) of this section | 375 |
shall be adjudged an unruly child, with such disposition of the | 376 |
case as may be appropriate under Chapter 2151. of the Revised | 377 |
Code. A violation of division (B)(2) of this section is a | 378 |
delinquent act that would be a misdemeanor of the third degree on | 379 |
the first offense and a misdemeanor of the first degree on each | 380 |
subsequent offense if it could be committed by an adult. A | 381 |
violation of division (C) of this section is a delinquent act that | 382 |
would be a misdemeanor of the third degree if it could be | 383 |
committed by an adult. A minor who violates division (D)(1) of | 384 |
this section shall be adjudged an unruly child, with such | 385 |
disposition of the case as may be appropriate under Chapter 2151. | 386 |
of the Revised Code. A violation of division (D)(2) of this | 387 |
section is a delinquent act that would be a misdemeanor of the | 388 |
first degree if it could be committed by an adult. | 389 |
(F) As used in this section: | 390 |
(1) "State of nudity" means a state of nudity that involves a | 391 |
lewd exhibition or graphic focus on the genitals. | 392 |
(2) "Telecommunications device" has the same meaning as in | 393 |
section 2913.01 of the Revised Code. | 394 |
Section 2. That existing sections 2151.022, 2152.02, and | 395 |
2907.323 of the Revised Code are hereby repealed. | 396 |
Section 3. Section 2151.022 of the Revised Code is presented | 397 |
in this act as a composite of the section as amended by both Am. | 398 |
Sub. H.B. 23 and Am. Sub. S.B. 53 of the 126th General Assembly. | 399 |
The General Assembly, applying the principle stated in division | 400 |
(B) of section 1.52 of the Revised Code that amendments are to be | 401 |
harmonized if reasonably capable of simultaneous operation, finds | 402 |
that the composite is the resulting version of the section in | 403 |
effect prior to the effective date of the section as presented in | 404 |
this act. | 405 |