Bill Summary – FastDemocracy

SECOND REGULAR SESSION
                        HOUSE BILL NO. 1814
                               103RD GENERAL ASSEMBLY


                              INTRODUCED BY REPRESENTATIVE WARWICK.

     5280H.01I                                                                    JOSEPH ENGLER, Chief Clerk


                                                AN ACT
     To repeal sections 573.010, 573.110, 573.112, 589.400, 589.414, and 595.045, RSMo, and to
            enact in lieu thereof eight new sections relating to sexual offenses, with penalty
            provisions.


     Be it enacted by the General Assembly of the state of Missouri, as follows:

            Section A. Sections 573.010, 573.110, 573.112, 589.400, 589.414, and 595.045,
 RSMo, are repealed and eight new sections enacted in lieu thereof, to be known as sections
 566.152, 573.010, 573.110, 573.112, 573.114, 589.400, 589.414, and 595.045, to read as
 follows:
            566.152. 1. This section shall be known and may be cited as "Sophie's Law".
        2. A person commits the offense of grooming of a minor if such person is
 eighteen years of age or older and knowingly engages in a pattern of conduct that
 includes at least one overtly sexual act or communication directed toward a minor who
 is seventeen years of age or under from which, by its nature or context, a reasonable
 person would infer the intent to prepare, condition, or manipulate such minor for sexual
 conduct, sexual performance, or a commercial sex act.
        3. For the purposes of prosecution of the offense of grooming of a minor, the
 following shall apply:
        (1) Direct evidence of explicit statements of intent of the defendant shall not be
 required. Intent of the defendant may be established by the nature, frequency, and
 context of communications or actions, except that intent of the defendant is required to
 be evaluated based upon only what a reasonable person would infer the intent of the
 defendant to be; and

     EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is
     intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language.
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        (2) A pattern of conduct shall be determined by objective facts, not by the
 reputation or character of the defendant.
        4. The offense of grooming of a minor shall not apply to a person who is:
        (1) Eighteen years of age or older but not more than four years older than the
 minor at the time of the offense if there is no evidence of force, threat of force, coercion,
 or exploitation by the person;
        (2) A licensed teacher, licensed health care provider, or youth mentor of the
 minor acting within his or her scope of practice or scope of employment if there is no
 evidence of sexual intent or exploitation by the person; or
        (3) A parent, guardian, or family member of the minor who is providing
 standard care or support to the minor if there is no evidence of sexual intent or
 exploitation by the person.
        5. The offense of grooming of a minor is a class B felony unless sexual conduct,
 sexual performance, or a commercial sex act occurs, in which case it is a class A felony.
 No person convicted under this section shall be eligible for probation, parole, or
 conditional release until serving a minimum sentence of five years.
        6. Notwithstanding the provisions of sections 557.011, 558.019, and 559.021 to
 the contrary, a person found guilty of violating this section shall be ordered by the
 sentencing court to pay restitution to the victim of the offense. The minimum restitution
 ordered by the court for such victim shall be in the amount determined by the court
 necessary to compensate the victim for the mental and physical rehabilitation of the
 victim, any lost income or educational disruption, or relocation or housing assistance for
 the victim.
        7. The department of public safety shall issue guidance for:
        (1) The public on identifying and recognizing actions constituting grooming of a
 minor, responding to potential instances of grooming of a minor, and treatment of and
 services for victims of grooming; and
        (2) Procedures and training for professionals on the investigating and
 prosecuting of perpetrators of the offense of grooming of a minor.
        8. As used in this section, the following terms mean:
        (1) "Pattern of conduct", two or more acts, occurrences, or practices, whether
 continuous or closely related in time, that collectively demonstrate a course of action
 directed at a minor for the purpose of preparing, conditioning, or manipulating the
 minor for sexual conduct, sexual performance, or a commercial sex act. Evidence of a
 pattern of conduct may include written correspondences, text messages, email, instant
 messaging, social media communications, images, recordings, or other digital or
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 electronic methods of communication. A pattern of conduct includes, but is not limited
 to, communications or actions such as:
         (a) Selecting or identifying a person who is seventeen years of age or under based
 on perceived vulnerability;
         (b) Establishing rapport with a person who is seventeen years of age or under, or
 the person's parent or guardian, to reduce suspicion;
         (c) Providing attention, gifts, favors, or other benefits that create reliance or
 obligation from a person who is seventeen years of age or under;
         (d) Reducing or eliminating protective influences of a person who is seventeen
 years of age or under, increasing secrecy with a person who is seventeen years of age or
 under, or restricting access to support systems of a person who is seventeen years of age
 or under; or
         (e) Introducing explicit sexual material that is pornographic for minors, as such
 terms are defined in section 573.010, or other physical contact with increasing frequency
 to a person who is seventeen years of age or under, and using secrecy, threats, or
 manipulation to sustain compliance of such person;
         (2) "Sexual performance", any play, motion picture film, videotape, dance, or
 exhibition performed before an audience of one or more that includes sexual conduct by
 a person who is seventeen years of age or under.
             573.010. As used in this chapter the following terms shall mean:
         (1) "Adult cabaret", a nightclub, bar, juice bar, restaurant, bottle club, or other
 commercial establishment, regardless of whether alcoholic beverages are served, which
 regularly features persons who appear semi-nude;
         (2) "Characterized by", describing the essential character or dominant theme of an
 item;
         (3) "Child", any person under the age of fourteen;
         (4) "Child pornography":
         (a) Any obscene material or performance depicting sexual conduct, sexual contact as
 defined in section 566.010, or a sexual performance and which has as one of its participants or
 portrays as an observer of such conduct, contact, or performance a minor; or
         (b) Any visual depiction, including any photograph, film, video, picture, or computer
 or computer-generated image or picture, whether made or produced by electronic,
 mechanical, or other means, of sexually explicit conduct where:
         a. The production of such visual depiction involves the use of a minor engaging in
 sexually explicit conduct;
         b. Such visual depiction is a digital image, computer image, or computer-generated
 image that is, or is indistinguishable from, that of a minor engaging in sexually explicit
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 conduct, in that the depiction is such that an ordinary person viewing the depiction would
 conclude that the depiction is of an actual minor engaged in sexually explicit conduct,
 regardless of whether the minor was actually engaged in sexually explicit conduct at the
 time the visual depiction was created; or
         c. Such visual depiction has been created, adapted, or modified to show that an
 identifiable minor is engaging in sexually explicit conduct. "Identifiable minor" means a
 person who was a minor at the time the visual depiction was created, adapted, or modified; or
 whose image as a minor was used in creating, adapting, or modifying the visual depiction;
 and who is recognizable as an actual person by the person's face, likeness, or other
 distinguishing characteristic, such as a unique birthmark or other recognizable feature. The
 term identifiable minor shall not be construed to require proof of the actual identity of the
 identifiable minor;
         (5) "Employ", "employee", or "employment", any person who performs any service
 on the premises of a sexually oriented business, on a full-time, part-time, or contract basis,
 whether or not the person is denominated an employee, independent contractor, agent, or
 otherwise. Employee does not include a person exclusively on the premises for repair or
 maintenance of the premises or for the delivery of goods to the premises;
         (6) "Explicit sexual material", any pictorial or three-dimensional material depicting
 human masturbation, deviate sexual intercourse, sexual intercourse, direct physical
 stimulation or unclothed genitals, sadomasochistic abuse, or emphasizing the depiction of
 postpubertal human genitals; provided, however, that works of art or of anthropological
 significance shall not be deemed to be within the foregoing definition;
         (7) "Furnish", to issue, sell, give, provide, lend, mail, deliver, transfer, circulate,
 disseminate, present, exhibit or otherwise provide;
         (8) "Material", anything printed or written, or any picture, drawing, photograph,
 motion picture film, videotape or videotape production, or pictorial representation, or any
 recording or transcription, or any mechanical, chemical, or electrical reproduction, or stored
 computer data, or anything which is or may be used as a means of communication. Material
 includes undeveloped photographs, molds, printing plates, stored computer data and other
 latent representational objects;
         (9) "Minor", any person less than eighteen years of age;
         (10) "Nudity" or "state of nudity", the showing of the human genitals, pubic area,
 vulva, anus, anal cleft, or the female breast with less than a fully opaque covering of any part
 of the nipple or areola;
         (11) "Obscene", any material or performance if, taken as a whole:
         (a) Applying contemporary community standards, its predominant appeal is to
 prurient interest in sex; and
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         (b) The average person, applying contemporary community standards, would find the
 material depicts or describes sexual conduct in a patently offensive way; and
         (c) A reasonable person would find the material lacks serious literary, artistic,
 political or scientific value;
         (12) "Operator", any person on the premises of a sexually oriented business who
 causes the business to function, puts or keeps the business in operation, or is authorized to
 manage the business or exercise overall operational control of the business premises. A
 person may be found to be operating or causing to be operated a sexually oriented business
 whether or not such person is an owner, part owner, or licensee of the business;
         (13) "Performance", any play, motion picture film, videotape, dance or exhibition
 performed before an audience of one or more;
         (14) "Pornographic for minors", any material or performance if the following apply:
         (a) The average person, applying contemporary community standards, would find
 that the material or performance, taken as a whole, has a tendency to cater or appeal to a
 prurient interest of minors; and
         (b) The material or performance depicts or describes nudity, sexual conduct, the
 condition of human genitals when in a state of sexual stimulation or arousal, or
 sadomasochistic abuse in a way which is patently offensive to the average person applying
 contemporary adult community standards with respect to what is suitable for minors; and
         (c) The material or performance, taken as a whole, lacks serious literary, artistic,
 political, or scientific value for minors;
         (15) "Premises", the real property upon which a sexually oriented business is located,
 and all appurtenances thereto and buildings thereon, including but not limited to the sexually
 oriented business, the grounds, private walkways, and parking lots or parking garages or both;
         (16) "Promote", to manufacture, issue, sell, provide, mail, deliver, transfer, transmute,
 publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to
 do the same, by any means including a computer;
         (17) "Regularly", the consistent and repeated doing of the act so described;
         (18) "Sadomasochistic abuse", flagellation or torture by or upon a person as an act of
 sexual stimulation or gratification;
         (19) "Semi-nude" or "state of semi-nudity", the showing of the female breast below a
 horizontal line across the top of the areola and extending across the width of the breast at such
 point, or the showing of the male or female buttocks. Such definition includes the lower
 portion of the human female breast, but shall not include any portion of the cleavage of the
 female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel
 provided the areola is not exposed in whole or in part;
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         (20) "Sexual conduct", actual or simulated, normal or perverted acts of human
 masturbation; deviate sexual intercourse; sexual intercourse; or physical contact with a
 person's clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act
 of apparent sexual stimulation or gratification or any sadomasochistic abuse or acts including
 animals or any latent objects in an act of apparent sexual stimulation or gratification;
         (21) "Sexually explicit conduct", actual or simulated:
         (a) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-
 anal, whether between persons of the same or opposite sex;
         (b) Bestiality;
         (c) Masturbation;
         (d) Sadistic or masochistic abuse; or
         (e) Lascivious exhibition of the genitals or pubic area of any person;
         (22) "Sexually oriented business" includes:
         (a) An adult bookstore or adult video store. "Adult bookstore" or "adult video store"
 means a commercial establishment which, as one of its principal business activities, offers for
 sale or rental for any form of consideration any one or more of the following: books,
 magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video
 cassettes, compact discs, digital video discs, slides, or other visual representations which are
 characterized by their emphasis upon the display of specified sexual activities or specified
 anatomical areas. A principal business activity exists where the commercial establishment:
         a. Has a substantial portion of its displayed merchandise which consists of such
 items; or
         b. Has a substantial portion of the wholesale value of its displayed merchandise
 which consists of such items; or
         c. Has a substantial portion of the retail value of its displayed merchandise which
 consists of such items; or
         d. Derives a substantial portion of its revenues from the sale or rental, for any form of
 consideration, of such items; or
         e. Maintains a substantial section of its interior business space for the sale or rental of
 such items; or
         f. Maintains an adult arcade. "Adult arcade" means any place to which the public is
 permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or
 mechanically controlled still or motion picture machines, projectors, or other image-
 producing devices are regularly maintained to show images to five or fewer persons per
 machine at any one time, and where the images so displayed are characterized by their
 emphasis upon matter exhibiting specified sexual activities or specified anatomical areas;
         (b) An adult cabaret;
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         (c) An adult motion picture theater. "Adult motion picture theater" means a
 commercial establishment where films, motion pictures, video cassettes, slides, or similar
 photographic reproductions, which are characterized by their emphasis upon the display of
 specified sexual activities or specified anatomical areas are regularly shown to more than five
 persons for any form of consideration;
         (d) A semi-nude model studio. "Semi-nude model studio" means a place where
 persons regularly appear in a state of semi-nudity for money or any form of consideration in
 order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly
 depicted by other persons. Such definition shall not apply to any place where persons
 appearing in a state of semi-nudity do so in a modeling class operated:
         a. By a college, junior college, or university supported entirely or partly by taxation;
         b. By a private college or university which maintains and operates educational
 programs in which credits are transferable to a college, junior college, or university supported
 entirely or partly by taxation; or
         c. In a structure:
         (i) Which has no sign visible from the exterior of the structure and no other
 advertising that indicates a semi-nude person is available for viewing; and
         (ii) Where, in order to participate in a class, a student must enroll at least three days in
 advance of the class;
         (e) A sexual encounter center. "Sexual encounter center" means a business or
 commercial enterprise that, as one of its principal purposes, purports to offer for any form of
 consideration physical contact in the form of wrestling or tumbling between two or more
 persons when one or more of the persons is semi-nude;
         (23) "Sexual performance", any performance, or part thereof, which includes sexual
 conduct by a child who is less than eighteen years of age;
         (24) "Specified anatomical areas" include:
         (a) Less than completely and opaquely covered: human genitals, pubic region,
 buttock, and female breast below a point immediately above the top of the areola; and
         (b) Human male genitals in a discernibly turgid state, even if completely and
 opaquely covered;
         (25) "Specified sexual acti