SENATE, No. 1420

STATE OF NEW JERSEY

217th LEGISLATURE

INTRODUCED FEBRUARY 11, 2016

 


 

Sponsored by:

Senator† MICHAEL J. DOHERTY

District 23 (Hunterdon, Somerset and Warren)

Senator† DIANE B. ALLEN

District 7 (Burlington)

 

 

 

 

SYNOPSIS

†††† Specifies that certain images generated by body scans violate State statutes prohibiting invasion of privacy, pornography, and endangerment of child welfare under certain circumstances.

 

CURRENT VERSION OF TEXT

†††† As introduced.

††


An Act concerning the unauthorized production of images that depict nudity, amending P.L.1992, c.7, P.L.2003, c.206, and N.J.S.2C:24-4.

 

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

 

†††† 1.††† Section 2 of P.L.1992, c.7 (C.2A:30B-2) is amended to read as follows:

†††† 2.††† As used in this act:

†††† a.†††† "Child" means any person under 18 years of age;

†††† b.††† "Person" means any natural person, association, partnership, corporation or other entity.† "Corporation" includes any director, officer, servant, employee or other person authorized to act on behalf of a corporation;

†††† c.†††† "Prohibited sexual act" means

†††† (1)†† Sexual intercourse; or

†††† (2)†† Anal intercourse; or

†††† (3)†† Masturbation; or

†††† (4)†† Bestiality; or

†††† (5)†† Sadism; or

†††† (6)†† Masochism; or

†††† (7)†† Fellatio; or

†††† (8)†† Cunnilingus; or

†††† (9)†† Nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view the depiction[.]; or

†††† (10) Nudity, if an image is created or viewed by any local, State, or federal employee that was generated as a condition for boarding an airplane, or other form of public transportation, that depicts a childís genitals or breasts unless: the person depicted is under arrest; a search warrant has been issued authorizing the creation of such an image; the person is lawfully confined in any county or State correctional facility; or the childís parent or guardian has provided written authorization for the production of the image. †No local, State, or federal government employee shall have immunity from civil or criminal liability resulting from the creation of such an image even if the violation occurred while acting within the scope of employment.†

(cf: P.L.1992, c.7, s.2)

 

†††† 2.††† Section 2 of P.L.2003, c.206 (C.2A:58D-1) is amended to read as follows:

†††† 2.††† a.† An actor who, without license or privilege to do so, photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed, shall be liable to that person, who may bring a civil action in the Superior Court.

†††† b.††† An actor who, without license or privilege to do so, discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed, shall be liable to that person, who may bring a civil action in the Superior Court.† For purposes of this section, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.

†††† c.†††† The court may award:

†††† (1)†† actual damages, but not less than liquidated damages computed at the rate of $1,000.00 for each violation of this act;

†††† (2)†† punitive damages upon proof of willful or reckless disregard of the law;

†††† (3)†† reasonable attorney's fees and other litigation costs reasonably incurred; and

†††† (4)†† such other preliminary and equitable relief as the court determines to be appropriate.

†††† d.††† For the purposes of this section, the creation or viewing of an image by any local, State, or federal employee generated as a condition for boarding an airplane, or other form of public transportation that depicts a personís genitals or breasts shall be considered a violation of this section unless: the person depicted is under arrest; a search warrant has been issued authorizing the creation of such an image; the person is lawfully confined in any county or State correctional facility; or the person has provided written authorization for the production of the image.† No local, State, or federal government employee shall have immunity from civil or criminal liability resulting from the creation of such an image even if the violation occurred while acting within the scope of employment.

(cf: P.L.2003, c.206, s.2)

 

†††† 3.††† Section 1 of P.L.2003, c.206 (C.2C:14-9) is amended to read as follows:

†††† 1.††† a.† An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person's consent and under circumstances in which a reasonable person would not expect to be observed.

†††† b.††† An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed.† A local, State, or federal employee who creates an image of a personís genitals or breasts, or a local, State, or federal government employee who views an image of a personís genitals or breasts, that was generated as a condition for boarding an airplane, or other form of public transportation, shall be considered a violation of this subsection unless: the person depicted is under arrest; a search warrant has been issued authorizing the creation of such an image; the person is lawfully confined in any county or State correctional facility; or the person has provided written authorization for the production of the image.† No local, State, or federal government employee shall have immunity from prosecution under this subsection even if the violation occurred while acting within the scope of employment.

†††† c.†††† An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure.† For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.† Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.

†††† d.††† [It] Except for those government employees denied immunity from prosecution pursuant to subsection b. of this section, it is an affirmative defense to a crime under this section that:

†††† (1)†† the actor posted or otherwise provided prior notice to the person of the actor's intent to engage in the conduct specified in subsection a., b., or c., and

†††† (2)†† the actor acted with a lawful purpose.

†††† e.† (1) It shall not be a violation of subsection a. or b. to observe another person in the access way, foyer or entrance to a fitting room or dressing room operated by a retail establishment or to photograph, film, videotape, record or otherwise reproduce the image of such person, if the actor conspicuously posts at the entrance to the fitting room or dressing room prior notice of his intent to make the observations, photographs, films, videotapes, recordings or other reproductions.

†††† (2)†† It shall be a violation of subsection c. to disclose in any manner any such photograph, film, videotape or recording of† another person using a fitting room or dressing room except under the following circumstances:

†††† (a)†† to law enforcement officers in connection with a criminal prosecution;

†††† (b)†† pursuant to subpoena or court order for use in a legal proceeding; or

†††† (c)†† to a co-worker, manager or supervisor acting within the scope of his employment.

†††† f.†††† It shall be a violation of subsection a. or b. to observe another person in a private dressing stall of a fitting room or dressing room operated by a retail establishment or to photograph, film, videotape, record or otherwise reproduce the image of another person in a private dressing stall of a fitting room or dressing room.

†††† g.††† For purposes of this act, a law enforcement officer, or a corrections officer or guard in a correctional facility or jail, who is engaged in the official performance of his duties shall be deemed to be licensed or privileged to make and to disclose observations, photographs, films, videotapes, recordings or any other reproductions.

†††† h.††† Notwithstanding the provisions of N.J.S.2C:1-8 or any other provisions of law, a conviction arising under subsection b. of this section shall not merge with a conviction under subsection c. of this section, nor shall a conviction under subsection c. merge with a conviction under subsection b.

(cf: P.L.2003, c.206, s.1)

 

†††† 4.††† 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 is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.

†††† (2)†† Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child 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 paragraph to a child is guilty of a crime of the third degree.

†††† b.††† (1) As used in this subsection:

†††† "Child" means any person under 18 years of age.

†††† "Distribute" means to sell, or to manufacture, give, provide, lend, trade, mail, deliver, publish, circulate, disseminate, present, exhibit, display, share, advertise, offer, or make available via the Internet or by any other means, whether for pecuniary gain or not. The term also includes an agreement or attempt to distribute.

†††† "File-sharing program" means a computer program, application, software or operating system that allows the user of a computer on which such program, application, software or operating system is installed to designate files as available for searching by and copying to one or more other computers, to transmit such designated files directly to one or more other computers, and to request the transmission of such designated files directly from one or more other computers. The term "file-sharing program" includes but is not limited to a computer program, application or software that enables a computer user to participate in a peer-to-peer network.

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

†††† "Item depicting the sexual exploitation or abuse of a child" means a photograph, film, video, an electronic, electromagnetic or digital recording, an image stored or maintained in a computer program or file or in a portion of a file, or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act.

†††† "Peer-to-peer network" means a connection of computer systems through which files are shared directly between the systems on a network without the need of a central server.

†††† "Prohibited sexual act" means

†††† (a)†† Sexual intercourse; or

†††† (b)†† Anal intercourse; or

†††† (d)†† Bestiality; or

†††† (e)†† Sadism; or

†††† (f)†† Masochism; or

†††† (g)†† Fellatio; or

†††† (h)†† Cunnilingus; or

†††† (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 first 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.

†††† (4)†† A person commits a crime of the second degree if he 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.

†††† (5) (a) A person commits a crime of the second degree if, by any means, including but not limited to the Internet, he:

†††† (i)††† knowingly distributes an item depicting the sexual exploitation or abuse of a child;

†††† (ii)†† knowingly possesses an item depicting the sexual exploitation or abuse of a child with the intent to distribute that item; or

†††† (iii) knowingly stores or maintains an item depicting the sexual exploitation or abuse of a child using a file-sharing program which is designated as available for searching by or copying to one or more other computers.

†††† In a prosecution under sub-subparagraph (iii) of this subparagraph, the State shall not be required to offer proof that an item depicting the sexual exploitation or abuse of a child had actually been searched, copied, transmitted or viewed by another user of the file-sharing program, or by any other person, and it shall be no defense that the defendant did not intend to distribute the item to another user of the file-sharing program or to any other person. Nor shall the State be required to prove that the defendant was aware that the item depicting the sexual exploitation or abuse of a child was available for searching or copying to one or more other computers, and the defendant shall be strictly liable for failing to designate the item as not available for searching or copying by one or more other computers.

†††† Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person whose offense under this subparagraph involved 25 or more items depicting the sexual exploitation or abuse of a child shall be sentenced to a mandatory minimum term of imprisonment, which shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall be ineligible for parole.

†††† Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person convicted of a second or subsequent offense under this subparagraph shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7. For the purposes of this subparagraph, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to paragraph (3), (4) or (5) of this subsection, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to paragraph (3), (4) or (5) of this subsection.

†††† For purposes of this subparagraph, the term "possess" includes receiving, viewing, or having under one's control, through any means, including the Internet.

†††† (b)†† A person commits a crime of the third degree if he knowingly possesses, knowingly views, or knowingly has under his control, through any means, including the Internet, an item depicting the sexual exploitation or abuse of a child.

†††† Notwithstanding the provisions of subsection e. of N.J.S.2C:44-1, in any instance where a person was convicted of an offense under this subparagraph that involved 100 or more items depicting the sexual exploitation or abuse of a child, the court shall impose a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that imprisonment would be a serious injustice which overrides the need to deter such conduct by others.

†††† Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person convicted of a second or subsequent offense under this subparagraph shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7. For the purposes of this subparagraph, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to paragraph (3), (4) or (5) of this subsection, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to paragraph (3), (4) or (5) of this subsection.

†††† Nothing in this subparagraph shall be construed to preclude or limit any prosecution or conviction for the offense set forth in subparagraph (a) of this paragraph.

†††† (6)†† For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of 18 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 18.† 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 18, 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 18, 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.

†††† (7)†† For aggregation purposes, each depiction of the sexual exploitation or abuse of a child shall be considered a separate item, and each individual act of distribution of an item depicting the sexual exploitation or abuse of a child shall be considered a separate item. For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (a) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the act or acts constituting the violation occurred at the same time or at different times and, with respect to distribution, whether the act or acts of distribution were to the same person or several persons or occurred at different times, provided that each individual act was committed within the applicable statute of limitations.† For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (b) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the possession of such items occurred at the same time or at different times, provided that each individual act was committed within the applicable statute of limitations.

†††† c.†††† A local, State, or federal employee who creates an image of a childís genitals or breasts, or a local, State, or federal government employee who views an image of a childís genitals or breasts, that was generated as a condition for boarding an airplane, or other form of public transportation, shall be guilty of a crime of the third degree unless: the person depicted is under arrest; a search warrant has been issued authorizing the creation of such an image; the person is lawfully confined in any county or State correctional facility; or the childís parent or guardian has provided written authorization for the production of the image.† No local, State, or federal government employee shall have immunity from prosecution under this subsection even if the violation occurred while acting within the scope of employment.

(cf: P.L.2013, c.136, s.1)

 

†††† 5.††† This act shall take effect immediately.

 

 

STATEMENT

 

†††† This bill specifies that certain images generated by body scans conducted in order to board an airplane, or other form of public transportation, that reveal a personís private parts violate the Stateís statutes prohibiting the invasion of privacy, child pornography, and endangerment of child welfare.† The creation of such an image would not be a violation if the person scanned was under arrest, had been issued a search warrant authorizing the scan, was under the care and custody of a correctional facility, or provided written consent.

†††† In each instance, the bill clarifies that government employees who conduct these naked body scans as part of their employment activities are not immune from prosecution.

†††† Recent scanners acquired by the Transportation Security Administration generate images that reveal the naked bodies of travelers.† This bill clarifies that the legislature intends to provide privacy protections, and to protect children from sexual exploitation, in all parts of the State, including its airports.

†††† This bill does provide government employees with sufficient authority to conduct these scans when a real risk to public safety has been identified since the scans would be permitted if a person were under arrest or under the care and custody of a correctional facility, in response to a search order, or if a person provides written consent.

†††† This bill is part of a package of three bills designed by the sponsor to protect the privacy of the traveling public.