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H. B. No. 53 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Representatives Beck, Bubp, Combs, Derickson, Grossman, Patmon
A BILL
To amend sections 2151.022 and 2152.02 and to enact
section 2907.324 of the Revised Code to prohibit a
minor, by use of a telecommunications device or
other means, from knowingly creating, receiving,
exchanging, sending, or possessing a photograph or
other material showing a minor in a state of
nudity.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2151.022 and 2152.02 be amended and
section 2907.324 of the Revised Code be enacted to read as
follows:
Sec. 2151.022. As used in this chapter, "unruly child"
includes any of the following:
(A) Any child who does not submit to the reasonable control
of the child's parents, teachers, guardian, or custodian, by
reason of being wayward or habitually disobedient;
(B) Any child who is an habitual truant from school and who
previously has not been adjudicated an unruly child for being an
habitual truant;
(C) Any child who behaves in a manner as to injure or
endanger the child's own health or morals or the health or morals
of others;
(D) Any child who violates a section 2907.324 of the Revised
Code for the first time or who violates any other law, other than
division (C) of section 2907.39, division (A) of section 2923.211,
division (C)(1) or (D) of section 2925.55, or section 2151.87 of
the Revised Code, that is applicable only to a child.
Sec. 2152.02. As used in this chapter:
(A) "Act charged" means the act that is identified in a
complaint, indictment, or information alleging that a child is a
delinquent child.
(B) "Admitted to a department of youth services facility"
includes admission to a facility operated, or contracted for, by
the department and admission to a comparable facility outside this
state by another state or the United States.
(C)(1) "Child" means a person who is under eighteen years of
age, except as otherwise provided in divisions (C)(2) to (7) of
this section.
(2) Subject to division (C)(3) of this section, any person
who violates a federal or state law or a municipal ordinance prior
to attaining eighteen years of age shall be deemed a "child"
irrespective of that person's age at the time the complaint with
respect to that violation is filed or the hearing on the complaint
is held.
(3) Any person who, while under eighteen years of age,
commits an act that would be a felony if committed by an adult and
who is not taken into custody or apprehended for that act until
after the person attains twenty-one years of age is not a child in
relation to that act.
(4) Any person whose case is transferred for criminal
prosecution pursuant to section 2152.12 of the Revised Code shall
be deemed after the transfer not to be a child in the transferred
case.
(5) Any person whose case is transferred for criminal
prosecution pursuant to section 2152.12 of the Revised Code and
who subsequently is convicted of or pleads guilty to a felony in
that case, and any person who is adjudicated a delinquent child
for the commission of an act, who has a serious youthful offender
dispositional sentence imposed for the act pursuant to section
2152.13 of the Revised Code, and whose adult portion of the
dispositional sentence is invoked pursuant to section 2152.14 of
the Revised Code, shall be deemed after the transfer or invocation
not to be a child in any case in which a complaint is filed
against the person.
(6) The juvenile court has jurisdiction over a person who is
adjudicated a delinquent child or juvenile traffic offender prior
to attaining eighteen years of age until the person attains
twenty-one years of age, and, for purposes of that jurisdiction
related to that adjudication, except as otherwise provided in this
division, a person who is so adjudicated a delinquent child or
juvenile traffic offender shall be deemed a "child" until the
person attains twenty-one years of age. If a person is so
adjudicated a delinquent child or juvenile traffic offender and
the court makes a disposition of the person under this chapter, at
any time after the person attains eighteen years of age, the
places at which the person may be held under that disposition are
not limited to places authorized under this chapter solely for
confinement of children, and the person may be confined under that
disposition, in accordance with division (F)(2) of section 2152.26
of the Revised Code, in places other than those authorized under
this chapter solely for confinement of children.
(7) Any person who, while eighteen years of age, violates
division (A)(1) or (2) of section 2919.27 of the Revised Code by
violating a protection order issued or consent agreement approved
under section 2151.34 or 3113.31 of the Revised Code shall be
considered a child for the purposes of that violation of section
2919.27 of the Revised Code.
(D) "Chronic truant" means any child of compulsory school age
who is absent without legitimate excuse for absence from the
public school the child is supposed to attend for seven or more
consecutive school days, ten or more school days in one school
month, or fifteen or more school days in a school year.
(E) "Community corrections facility," "public safety beds,"
"release authority," and "supervised release" have the same
meanings as in section 5139.01 of the Revised Code.
(F) "Delinquent child" includes any of the following:
(1) Any child, except a juvenile traffic offender, who
violates any law of this state or the United States, or any
ordinance of a political subdivision of the state, that would be
an offense if committed by an adult;
(2) Any child who violates any lawful order of the court made
under this chapter or under Chapter 2151. of the Revised Code
other than an order issued under section 2151.87 of the Revised
Code;
(3) Any child who violates section 2907.324 of the Revised
Code on a second or subsequent offense or who violates division
(C) of section 2907.39, division (A) of section 2923.211, or
division (C)(1) or (D) of section 2925.55 of the Revised Code;
(4) Any child who is a habitual truant and who previously has
been adjudicated an unruly child for being a habitual truant;
(5) Any child who is a chronic truant.
(G) "Discretionary serious youthful offender" means a person
who is eligible for a discretionary SYO and who is not transferred
to adult court under a mandatory or discretionary transfer.
(H) "Discretionary SYO" means a case in which the juvenile
court, in the juvenile court's discretion, may impose a serious
youthful offender disposition under section 2152.13 of the Revised
Code.
(I) "Discretionary transfer" means that the juvenile court
has discretion to transfer a case for criminal prosecution under
division (B) of section 2152.12 of the Revised Code.
(J) "Drug abuse offense," "felony drug abuse offense," and
"minor drug possession offense" have the same meanings as in
section 2925.01 of the Revised Code.
(K) "Electronic monitoring" and "electronic monitoring
device" have the same meanings as in section 2929.01 of the
Revised Code.
(L) "Economic loss" means any economic detriment suffered by
a victim of a delinquent act or juvenile traffic offense as a
direct and proximate result of the delinquent act or juvenile
traffic offense and includes any loss of income due to lost time
at work because of any injury caused to the victim and any
property loss, medical cost, or funeral expense incurred as a
result of the delinquent act or juvenile traffic offense.
"Economic loss" does not include non-economic loss or any punitive
or exemplary damages.
(M) "Firearm" has the same meaning as in section 2923.11 of
the Revised Code.
(N) "Juvenile traffic offender" means any child who violates
any traffic law, traffic ordinance, or traffic regulation of this
state, the United States, or any political subdivision of this
state, other than a resolution, ordinance, or regulation of a
political subdivision of this state the violation of which is
required to be handled by a parking violations bureau or a joint
parking violations bureau pursuant to Chapter 4521. of the Revised
Code.
(O) A "legitimate excuse for absence from the public school
the child is supposed to attend" has the same meaning as in
section 2151.011 of the Revised Code.
(P) "Mandatory serious youthful offender" means a person who
is eligible for a mandatory SYO and who is not transferred to
adult court under a mandatory or discretionary transfer.
(Q) "Mandatory SYO" means a case in which the juvenile court
is required to impose a mandatory serious youthful offender
disposition under section 2152.13 of the Revised Code.
(R) "Mandatory transfer" means that a case is required to be
transferred for criminal prosecution under division (A) of section
2152.12 of the Revised Code.
(S) "Mental illness" has the same meaning as in section
5122.01 of the Revised Code.
(T) "Mentally retarded person" has the same meaning as in
section 5123.01 of the Revised Code.
(U) "Monitored time" and "repeat violent offender" have the
same meanings as in section 2929.01 of the Revised Code.
(V) "Of compulsory school age" has the same meaning as in
section 3321.01 of the Revised Code.
(W) "Public record" has the same meaning as in section 149.43
of the Revised Code.
(X) "Serious youthful offender" means a person who is
eligible for a mandatory SYO or discretionary SYO but who is not
transferred to adult court under a mandatory or discretionary
transfer.
(Y) "Sexually oriented offense," "juvenile offender
registrant," "child-victim oriented offense," "tier I sex
offender/child-victim offender," "tier II sex
offender/child-victim offender," "tier III sex
offender/child-victim offender," and "public registry-qualified
juvenile offender registrant" have the same meanings as in section
2950.01 of the Revised Code.
(Z) "Traditional juvenile" means a case that is not
transferred to adult court under a mandatory or discretionary
transfer, that is eligible for a disposition under sections
2152.16, 2152.17, 2152.19, and 2152.20 of the Revised Code, and
that is not eligible for a disposition under section 2152.13 of
the Revised Code.
(AA) "Transfer" means the transfer for criminal prosecution
of a case involving the alleged commission by a child of an act
that would be an offense if committed by an adult from the
juvenile court to the appropriate court that has jurisdiction of
the offense.
(BB) "Category one offense" means any of the following:
(1) A violation of section 2903.01 or 2903.02 of the Revised
Code;
(2) A violation of section 2923.02 of the Revised Code
involving an attempt to commit aggravated murder or murder.
(CC) "Category two offense" means any of the following:
(1) A violation of section 2903.03, 2905.01, 2907.02,
2909.02, 2911.01, or 2911.11 of the Revised Code;
(2) A violation of section 2903.04 of the Revised Code that
is a felony of the first degree;
(3) A violation of section 2907.12 of the Revised Code as it
existed prior to September 3, 1996.
(DD) "Non-economic loss" means nonpecuniary harm suffered by
a victim of a delinquent act or juvenile traffic offense as a
result of or related to the delinquent act or juvenile traffic
offense, including, but not limited to, pain and suffering; loss
of society, consortium, companionship, care, assistance,
attention, protection, advice, guidance, counsel, instruction,
training, or education; mental anguish; and any other intangible
loss.
Sec. 2907.324. (A) No minor, by use of a telecommunications
device or other means, shall knowingly create, receive, exchange,
send, or possess a photograph, video, or other material that shows
a minor, who is not the actor's child or ward, in a state of
nudity.
(B) This section does not apply under any of the following
circumstances:
(1) The photograph, video, or other material is or is to be
created, received, exchanged, sent, or possessed for a bona fide
artistic, medical, scientific, educational, religious,
governmental, judicial, or other proper purpose by or to a
physician, psychologist, sociologist, scientist, teacher, person
pursuing bona fide studies for research, librarian, clergyman,
prosecutor, judge, or other person having a proper interest in the
photograph, video, or other material.
(2) The photograph, video, or other material depicts or
appears to depict a minor less than thirteen years of age.
(3) The photograph, video, or other material depicts a minor
engaged in sexual activity.
(4) The photograph, video, or other material depicts
sado-masochistic abuse or violent conduct.
(5) The minor sends the photograph, video, or other material
for pecuniary gain or in exchange for a thing of value or for the
promise of pecuniary gain or a thing of value.
(6) The minor who possesses or receives the photograph,
video, or other material paid money or exchanged a thing of value
for the photograph, video, or other material or promised to pay
money or exchange a thing of value for the photograph, video, or
other material.
(7) The minor sends ten or more different photographs,
videos, or other materials in violation of this section.
(8) The minor sends photographs, videos, or other materials
in violation of this section to ten or more different
telecommunication devices.
(9) The minor previously has been adjudicated two or more
times to be in violation of this section.
(C) It is no defense to a charge under this section that the
minor creates, receives, exchanges, sends, or possesses a
photograph, video, or other material that shows themselves in a
state of nudity.
(D) Whoever violates this section is guilty of illegal use of
a telecommunications device involving a minor in a state of
nudity. A minor shall be adjudged an unruly child on the first
offense, with any disposition of the case that is appropriate
under Chapter 2151. of the Revised Code. A second or subsequent
offense is a delinquent act that would be a misdemeanor of the
first degree if it could be committed as an adult.
(E) This section does not preclude a county prosecuting
attorney from pursuing any felony charge against a minor who has
used a telecommunications device or other means to knowingly
create, receive, exchange, send, or possess a photograph, video,
or other material that shows a minor in a state of nudity.
(F) A violation of this section does not make a minor subject
to the registration and notification requirements of Chapter 2950.
of the Revised Code.
(G) As used in this section, "state of nudity" means a lewd
depiction, exhibition, representation, or showing of human male or
female genitals, pubic area, or buttocks with less than a full,
opaque covering, or of a female breast with less than a full,
opaque covering of any portion thereof below the top of the
nipple, or of covered male genitals in a discernibly turgid state,
or involving a graphic focus on human male or female genitals.
Section 2. That existing sections 2151.022 and 2152.02 of
the Revised Code are hereby repealed.
Section 3. Section 2151.022 of the Revised Code is presented
in this act as a composite of the section as amended by both Am.
Sub. S.B. 53 and Am. Sub. H.B. 23 of the 126th General Assembly.
The General Assembly, applying the principle stated in division
(B) of section 1.52 of the Revised Code that amendments are to be
harmonized if reasonably capable of simultaneous operation, finds
that the composite is the resulting version of the section in
effect prior to the effective date of the section as presented in
this act.
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