SENATE, No. 2701

STATE OF NEW JERSEY

213th LEGISLATURE

 

INTRODUCED MARCH 9, 2009

 


 

Sponsored by:

Senator JAMES BEACH

District 6 (Camden)

 

 

 

 

SYNOPSIS

     Establishes permissive inferences related to conduct that serves as predicate to sex offenses against minors.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning permissive inferences related to sex offenses against minors and amending P.L.1993, c.291 and N.J.S.2C:24-4.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    Section 1 of P.L.1993, c.291 (C.2C:13-6) is amended to read as follows:

     1.    Luring, enticing child by various means, attempts; crime of second degree; subsequent offense, mandatory imprisonment; definitions.

     a.     A person commits a crime of the second degree if he attempts, via electronic or any other means, to lure or entice a child or one who he reasonably believes to be a child into a motor vehicle, structure or isolated area, or to meet or appear at any other place, with a purpose to commit a criminal offense with or against the child.

     b.    As used in this section:

     “Child” means a person less than 18 years old.

     “Electronic communication device” means any device capable of  transmitting information by wire, radio, optical cable, electromagnetic, or other similar means.  “Electronic communication device” includes, but is not limited to, a computer or any other device with Internet capability, telephone, wireless phone or other wireless communications device, pager or electronic text messaging device.

     “Electronic means” includes, but is not limited to, the Internet, which shall have the meaning set forth in N.J.S.2C:24-4, or any electronic communication device.

     “Structure” means any building, room, ship, vessel or airplane and also means any place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present.

     c.     Nothing herein shall be deemed to preclude, if the evidence so warrants, an indictment and conviction for attempted kidnapping under the provisions of N.J.S.2C:13-1.

     d.    A person convicted of a second or subsequent offense under this section shall be sentenced to a term of imprisonment. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, the term of imprisonment shall include, unless the person is sentenced pursuant to the provisions of N.J.S.2C:43-7, a mandatory minimum term of one-third to one-half of the sentence imposed, or three years, whichever is greater, during which time the defendant shall not be eligible for parole. If the person is sentenced pursuant to N.J.S.2C:43-7, the court shall impose a minimum term of one-third to one-half of the sentence imposed, or five years, whichever is greater. The court may not suspend or make any other non-custodial disposition of any person sentenced as a second or subsequent offender pursuant to this section.

     For the purposes of this section, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to this section, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to this section.

     e.     A person convicted of an offense under this section who has previously been convicted of a violation of N.J.S.2C:14-2, subsection a. of N.J.S.2C:14-3 or N.J.S.2C:24-4 shall be sentenced to a term of imprisonment. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, the term of imprisonment shall include, unless the person is sentenced pursuant to the provisions of N.J.S.2C:43-7, a mandatory minimum term of five years, during which time the defendant shall not be eligible for parole. The court may not suspend or make any other non-custodial disposition of any person sentenced pursuant to this section.

     For the purposes of this subsection, an offense is considered a previous conviction of N.J.S.2C:14-2, subsection a. of N.J.S.2C:14-3 or N.J.S.2C:24-4 if the actor has at any time been convicted under any of these sections or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to any of these sections.

     f.     Notwithstanding the provisions of N.J.S.2C:1-8 or any other law, a conviction under this section shall not merge with a conviction of any other criminal offense, nor shall such other conviction merge with a conviction under this section, and the court shall impose separate sentences upon each violation of this section and any other criminal offense. The court may not suspend or make any other non-custodial disposition of any person sentenced pursuant to this section.

     g.     For purposes of this section, the following permissive inferences shall apply.

     (1)   Proof that a defendant agreed to meet with a child or a person whom the defendant reasonably believed to be a child without first taking reasonable steps to determine whether the other person was actually a child shall give rise to a permissive inference that the defendant believed the other person to be a child.

     (2)   Proof that a defendant traveled any distance either within this State, to this State, or from this State by any means, or attempted to do so, or caused another to do so or to attempt to do so, to meet with a child or a person whom the defendant reasonably believed to be a child without first taking reasonable steps to determine whether the other person was actually a child shall give rise to a permissive inference that the defendant believed the other person to be a child.

     (3)   Proof that a defendant 25 years of age or older who falsely represents his age as less than 25 years of age when communicating via electronic means with another person shall give rise to a permissive inference that the defendant believed the other person to be a child.

     (4)   Proof that the defendant transmitted by any means to a person who is a child or who the actor reasonably believes to be a child an image of any kind depicting a prohibited sexual act as defined in paragraph (1) of subsection b. of N.J.S.2C:24-4 or a simulation thereof, including but not limited to a depiction of a cartoon or graphic character or characters engaged in a prohibited sexual act, shall give rise to a permissive inference that the defendant acted with the purpose to commit a criminal offense with or against the child.

     (5)   Proof that a defendant violated N.J.S.2C:34-3 shall give rise to a permissive inference that, with respect to the victim of such violation, defendant acted with the purpose to commit a criminal offense with or against the child.

     (6)   Proof that the defendant transmitted by any means to a person who is a child or who the actor reasonably believes to be a child obscene material in violation of subsection b. of N.J.S.2C:34-3 shall give rise to a permissive inference that the defendant acted with the purpose to commit a criminal offense with or against the child.

     (7)   Proof that the defendant, with respect to another person who is a child or who the actor reasonably believes to be a child, directly or indirectly solicited a child or a person who the defendant reasonably believed to be a child to engage in sexual activities, discuss sexual conduct or intimate parts as that term is defined in N.J.S.2C:14-1, or provide personal sexual information shall give rise to an inference that the defendant acted with the purpose to commit a criminal offense against the child.

     (8)   Proof that the defendant directly or indirectly discussed sexual conduct or intimate parts as that term is defined in N.J.S.2C:14-1 with, or provided personal sexual information to, another person who is a child or who the actor reasonably believes to be a child shall give rise to an inference that the defendant acted with the purpose to commit a criminal offense against the child.

     h.     It shall not be a defense to a prosecution for an attempt to lure or entice a child that the defendant did not travel any distance, or attempt to do so, or cause another to do so or to attempt to do so, to meet with a child or a person whom the defendant reasonably believed to be a child.

     i.      If the child who is subjected to conduct in violation of subsection a. of this section is less than 18 years old, the actor shall be strictly liable and it shall not be a defense that the actor did not know that the child was less than 18 years old, nor shall it be a
defense that the actor believed that the child was 18 years of age or older, even if such a mistaken belief was reasonable.

(cf: P.L.2007, c.273, s.1)

 

     2.    N.J.S.2C:24-4 is amended to read as follows:

     2C:24-4.  Endangering Welfare of Children.

     a.     (1) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c.119, s.1 (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

     (2)   For purposes of this subsection, the following permissive inferences shall apply.

     (i)    Proof that a defendant traveled any distance either within this State, to this State, or from this State by any means, or attempted to do so, or caused another to do so or to attempt to do so, to meet with a child or a person whom the defendant reasonably believed to be a child without first taking reasonable steps to determine whether the other person was actually a child shall give rise to a permissive inference that the defendant was attempting to engage in sexual conduct which would impair or debauch the morals of the child.

     (ii)   Proof that the defendant transmitted by any means to a person who is a child or who the actor reasonably believed to be a child an image of any kind depicting a prohibited sexual act as defined in paragraph (1) of subsection b. of this section or a simulation thereof, including but not limited to a depiction of a cartoon or graphic character or characters engaged in a prohibited sexual act, shall give rise to a permissive inference that the defendant was attempting to engage in sexual conduct which would impair or debauch the morals of the child.

     (iii) Proof that a defendant violated N.J.S.2C:34-3 shall give rise to a permissive inference that, with respect to the victim of such violation, defendant was attempting to engage in sexual conduct which would impair or debauch the morals of the child.

     (iv)  Proof that the defendant transmitted by any means to a person who is a child or who the actor reasonably believed to be a child obscene material in violation of subsection b. of N.J.S.2C:34-3 shall give rise to a permissive inference that the defendant was attempting to engage in sexual conduct which would impair or debauch the morals of the child.

     (v)   Proof that the defendant, with respect to another person who is a child or who the actor reasonably believes to be a child, directly or indirectly solicited a child or a person who the defendant reasonably believed to be a child to engage in sexual activities, discuss sexual conduct or intimate parts as that term is defined in N.J.S.2C:14-1, or provide personal sexual information shall give rise to an inference that the defendant was attempting to engage in sexual conduct which would impair or debauch the morals of the child.

     (vi)  Proof that the defendant directly or indirectly discussed sexual conduct or intimate parts as that term is defined in N.J.S.2C:14-1 with, or provided personal sexual information to, another person who is a child or who the actor reasonably believes to be a child shall give rise to an inference that the defendant acted with the purpose to commit a criminal offense against the child.

     b.    (1) As used in this subsection:

     “Child” means any person under 16 years of age.

     “Internet” means the international computer network of both federal and non-federal interoperable packet switched data networks.

     “Prohibited sexual act” means

     (a)   Sexual intercourse; or

     (b)   Anal intercourse; or

     (c)   Masturbation; or

     (d)   Bestiality; or

     (e)   Sadism; or

     (f)    Masochism; or

     (g)   Fellatio; or

     (h)   Cunnilingus;

     (i)    Nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction; or

     (j)    Any act of sexual penetration or sexual contact as defined in N.J.S.2C:14-1.

     “Reproduction” means, but is not limited to, computer generated images.

     (2)   (Deleted by amendment, P.L.2001, c.291).

     (3)   A person commits a crime of the second degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance. If the person is a parent, guardian or other person legally charged with the care or custody of the child, the person shall be guilty of a crime of the first degree.

     (4)   Any person who photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act is guilty of a crime of the second degree.

     (5)   (a) Any person who knowingly receives for the purpose of selling or who knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers or agrees to offer, through any means, including the Internet, any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the second degree.

     (b)   Any person who knowingly possesses, receives or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree.

     (6)   For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of 16 in any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of 16.

     If the child who is depicted as engaging in, or who is caused to engage in, a prohibited sexual act or simulation of a prohibited sexual act is under the age of 16, the actor shall be strictly liable and it shall not be a defense that the actor did not know that the child was under the age of 16, nor shall it be a defense that the actor believed that the child was 16 years of age or older, even if such a mistaken belief was reasonable.

(cf: P.L.2001, c.291, s.1)

 

     3.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill amends the luring and enticing law (N.J.S.A.2C:13-6) and the endangering the welfare of minors law (N.J.S.A.2C:24-4) to establish permissive inferences which are related to conduct which serves as a predicate to sex offenses against minors. 

     Section 1 of the bill amends N.J.S.A.2C:13-6 to expand the definition of “electronic means” to include not only the Internet but also any electronic communication device. “Electronic communication device” is defined as any device capable of transmitting information by wire, radio, optical cable, electromagnetic, or other similar means.  “Electronic communication device” includes, but is not limited to, a computer or any other device with Internet capability, telephone, wireless phone or other wireless communications device, pager or electronic text messaging device. 

     Section 1 of the bill also amends N.J.S.A.2C:13-6 to establish the following permissive inferences concerning the luring and enticing of a child:

     (1) Proof that a defendant agreed to meet with a child or a person whom the defendant reasonably believed to be a child without first taking reasonable steps to determine whether the other person was actually a child shall give rise to a permissive inference that the defendant believed the other person to be a child.

     (2) Proof that a defendant traveled any distance either within this State, to this State, or from this State by any means, or attempted to do so, or caused another to do so or to attempt to do so, to meet with a child or a person whom the defendant reasonably believed to be a child without first taking reasonable steps to determine whether the other person was actually a child shall give rise to a permissive inference that the defendant believed the other person to be a child.

     (3) Proof that a defendant 25 years of age or older who falsely represents his age as less than 25 years of age when communicating via electronic means with another person shall give rise to a permissive inference that the defendant believed the other person to be a child.

     (4) Proof that the defendant transmitted by any means to a person who is a child or who the actor reasonably believes to be a child an image of any kind depicting a prohibited sexual act as defined in paragraph (1) of subsection b. of N.J.S.2C:24-4 or a simulation thereof, including but not limited to a depiction of a cartoon or graphic character or characters engaged in a prohibited sexual act, shall give rise to a permissive inference that the defendant acted with the purpose to commit a criminal offense with or against the child.

     (5) Proof that a defendant violated N.J.S.2C:34-3 (obscene material)  shall give rise to a permissive inference that, with respect to the victim of such violation, defendant acted with the purpose to commit a criminal offense with or against the child.

     (6) Proof that the defendant transmitted by any means to a person who is a child or who the actor reasonably believes to be a child obscene material in violation of subsection b. of N.J.S.2C:34-3 shall give rise to a permissive inference that the defendant acted with the purpose to commit a criminal offense with or against the child.

     (7) Proof that the defendant, with respect to another person who is a child or who the actor reasonably believes to be a child, directly or indirectly solicited a child or a person who the defendant reasonably believed to be a child to engage in sexual activities, discuss sexual conduct or intimate parts as that term is defined in N.J.S.2C:14-1, or provide personal sexual information shall give rise to an inference that the defendant acted with the purpose to commit a criminal offense against the child.

     (8) Proof that the defendant directly or indirectly discussed sexual conduct or intimate parts with, or provided personal sexual information to, another person who is a child or who the actor reasonably believes to be a child shall give rise to an inference that the defendant acted with the purpose to commit a criminal offense against the child.

     In addition, the bill provides that it shall not be a defense to a prosecution for luring or enticing a child that the defendant did not travel any distance or attempt to do so, or cause another to do so or to attempt to do so, to meet with a child or a person whom the defendant reasonably believed to be a child. The bill would also eliminate the affirmative defense that the actor did not know that the child was less than 18, nor would it be a defense that the actor believed that the child was 18 years of age or older even if such a mistaken belief was reasonable.  Furthermore, this bill provides that a person who violates the luring statute would be strictly liable if the child is less than 18. 

     Section 2 of the bill amends subsection a. of N.J.S.A.2C:24-4 to provide the following permissive inferences concerning endangering the welfare of a child by any person who has the legal duty for the care of the child and who engages in sexual conduct which would impair or debauch the morals of a child:

     (i) Proof that a defendant traveled any distance either within this State, to this State, or from this State by any means, or attempted to do so, or caused another to do so or to attempt to do so, to meet with a child or a person whom the defendant reasonably believed to be a child without first taking reasonable steps to determine whether the other person was actually a child shall give rise to a permissive inference that the defendant was attempting to engage in sexual conduct which would impair or debauch the morals of the child.

     (ii) Proof that the defendant transmitted by any means to a person who is a child or who the actor reasonably believed to be a child an image of any kind depicting a prohibited sexual act as defined in paragraph (1) of subsection b. of this section or a simulation thereof, including but not limited to a depiction of a cartoon or graphic character or characters engaged in a prohibited sexual act, shall give rise to a permissive inference that the defendant was attempting to engage in sexual conduct which would impair or debauch the morals of the child.

     (iii) Proof that a defendant violated N.J.S.2C:34-3 shall give rise to a permissive inference that, with respect to the victim of such violation, defendant was attempting to engage in sexual conduct which would impair or debauch the morals of the child.

     (iv) Proof that the defendant transmitted by any means to a person who is a child or who the actor reasonably believed to be a child obscene material in violation of subsection b. of N.J.S.2C:34-3 shall give rise to a permissive inference that the defendant was attempting to engage in sexual conduct which would impair or debauch the morals of the child.

     (v) Proof that the defendant, with respect to another person who is a child or who the actor reasonably believes to be a child, directly or indirectly solicited a child or a person who the defendant reasonably believed to be a child to engage in sexual activities, discuss sexual conduct or intimate parts as that term is defined in N.J.S.2C:14-1, or provide personal sexual information shall give rise to an inference that the defendant was attempting to engage in sexual conduct which would impair or debauch the morals of the child.

     (vi) Proof that the defendant directly or indirectly discussed sexual conduct or intimate parts as that term is defined in N.J.S.2C:14-1 with, or provided personal sexual information to, another person who is a child or who the actor reasonably believes to be a child shall give rise to an inference that the defendant acted with the purpose to commit a criminal offense against the child.

     This bill is part of the Attorney General’s initiative concerning Internet safety.