130th Ohio General Assembly
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H. B. No. 80  As Introduced
As Introduced

129th General Assembly
Regular Session
2011-2012
H. B. No. 80


Representative Pillich 

Cosponsors: Representatives Antonio, Fende, Murray, Phillips, Yuko 



A BILL
To amend sections 2151.022, 2152.02, and 2907.323 and to enact section 2907.324 of the Revised Code to prohibit a minor, by use of a telecommunications device, from knowingly sharing, exchanging, sending, or posting a photograph, video, or other material that shows a minor in a state of nudity and to define a state of nudity for purposes of this prohibition, to limit the offense of "illegal use of a minor in a nudity-oriented material or performance" to acts committed by persons 18 years of age or older, and to prohibit a minor from committing by means other than a telecommunications device delinquent acts that would be the offense of "illegal use of a minor in a nudity-oriented material or performance" if committed by an adult.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1.  That sections 2151.022, 2152.02, and 2907.323 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 law, other than division (A)(1)(b), (B)(2), (C), or (D)(2) of section 2907.324, 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 division (A)(1)(b), (B)(2), (C), or (D)(2) of section 2907.324, 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. 2907.323.  (A) No person who is eighteen years of age or older shall do any of the following:
(1) Photograph any minor who is not the person's child or ward in a state of nudity, or create, direct, produce, or transfer any material or performance that shows the minor in a state of nudity, unless both of the following apply:
(a) The material or performance is, or is to be, sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented 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 or research, librarian, member of the clergy, attorney, prosecutor, judge, or other person having a proper interest in the material or performance;
(b) The minor's parents, guardian, or custodian consents in writing to the photographing of the minor, to the use of the minor in the material or performance, or to the transfer of the material and to the specific manner in which the material or performance is to be used.
(2) Consent to the photographing of the person's minor child or ward, or photograph the person's minor child or ward, in a state of nudity or consent to the use of the person's minor child or ward in a state of nudity in any material or performance, or use or transfer a material or performance of that nature, unless the material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented 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 or research, librarian, member of the clergy, attorney, prosecutor, judge, or other person having a proper interest in the material or performance;
(3) Possess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity, unless one of the following applies:
(a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented 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 or research, librarian, member of the clergy, attorney, prosecutor, judge, or other person having a proper interest in the material or performance.
(b) The person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred.
(B) Whoever violates this section is guilty of illegal use of a minor in a nudity-oriented material or performance. Whoever violates division (A)(1) or (2) of this section is guilty of a felony of the second degree. Except as otherwise provided in this division, whoever violates division (A)(3) of this section is guilty of a felony of the fifth degree. If the offender previously has been convicted of or pleaded guilty to a violation of this section or section 2907.321 or 2907.322 of the Revised Code, illegal use of a minor in a nudity-oriented material or performance in violation of division (A)(3) of this section is a felony of the fourth degree. If the offender who violates division (A)(1) or (2) of this section also is convicted of or pleads guilty to a specification as described in section 2941.1422 of the Revised Code that was included in the indictment, count in the indictment, or information charging the offense, the court shall sentence the offender to a mandatory prison term as provided in division (D)(7) of section 2929.14 of the Revised Code and shall order the offender to make restitution as provided in division (B)(8) of section 2929.18 of the Revised Code.
Sec. 2907.324.  (A)(1) No minor, by use of a telecommunications device, shall do either of the following:
(a) Knowingly send, post, exchange, or share a photograph, video, or other material that shows the minor in a state of nudity;
(b) Knowingly send, post, exchange, or share a photograph, video, or other material that shows another minor in a state of nudity.
(2) Division (A)(1) of this section does not apply to a minor who sends, posts, exchanges, or shares a photograph, video, or other material that shows the minor or another minor in a state of nudity in connection with a criminal investigation or prosecution, civil action, or other proper purpose.
(B)(1) No minor, by means other than the use of a telecommunications device, shall knowingly photograph the minor in a state of nudity or knowingly create, direct, produce, or transfer any material or performance that shows the minor in a state of nudity.
(2) No minor, by means other than the use of a telecommunications device, shall knowingly photograph another minor who is not the minor's child or ward in a state of nudity or knowingly create, direct, produce, or transfer any material or performance that shows another minor who is not the minor's child or ward in a state of nudity.
(3) Divisions (B)(1) and (2) of this section do not apply if both of the following apply:
(a) The material or performance is, or is to be, sold, disseminated, displayed, shared, controlled, brought or caused to be brought into this state, or presented 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 or research, librarian, member of the clergy, attorney, prosecutor, judge, or other person having a proper interest in the material or performance.
(b) The minor's parents, guardian, or custodian consents in writing to the photographing of the minor, to the use of the minor in the material or performance, or to the transfer of the material and to the specific manner in which the material or performance is to be used.
(C) No minor shall knowingly consent to the photographing of the minor's minor child or ward, or photograph the minor's child or ward, in a state of nudity or knowingly consent to the use of the minor's child or ward in a state of nudity in any material or performance, or knowingly use or transfer a material or performance of that nature, unless the material or performance is sold, disseminated, displayed, shared, controlled, brought or caused to be brought into this state, or presented 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 or research, librarian, member of the clergy, attorney, prosecutor, judge, or other person having a proper interest in the material or performance.
(D)(1) No minor shall knowingly share or view, by means other than a telecommunications device, any material or performance that shows the minor in a state of nudity.
(2) No minor shall knowingly share or view, by means other than a telecommunications device, any material or performance that shows another minor who is not the minor's child or ward in a state of nudity.
(3) Divisions (D)(1) and (2) of this section do not apply if either of the following applies:
(a) The material or performance is sold, disseminated, displayed, shared, controlled, brought or caused to be brought into this state, or presented 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 or research, librarian, member of the clergy, attorney, prosecutor, judge, or other person having a proper interest in the material or performance.
(b) The minor knows that the minor's or other minor's parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred.
(E) Whoever violates division (A)(1) of this section is guilty of sexting. A minor who violates division (A)(1)(a) of this section shall be adjudged an unruly child, with such disposition of the case as may be appropriate under Chapter 2151. of the Revised Code. A violation of division (A)(1)(b) of this section is a delinquent act that would be a misdemeanor of the third degree on the first offense and a misdemeanor of the first degree on each subsequent offense if it could be committed by an adult. Whoever violates division (B), (C), or (D) of this section is guilty of delinquent use of a minor in a nudity-oriented material or performance. A minor who violates division (B)(1) of this section shall be adjudged an unruly child, with such disposition of the case as may be appropriate under Chapter 2151. of the Revised Code. A violation of division (B)(2) of this section is a delinquent act that would be a misdemeanor of the third degree on the first offense and a misdemeanor of the first degree on each subsequent offense if it could be committed by an adult. A violation of division (C) of this section is a delinquent act that would be a misdemeanor of the third degree if it could be committed by an adult. A minor who violates division (D)(1) of this section shall be adjudged an unruly child, with such disposition of the case as may be appropriate under Chapter 2151. of the Revised Code. A violation of division (D)(2) of this section is a delinquent act that would be a misdemeanor of the first degree if it could be committed by an adult.
(F) As used in this section:
(1) "State of nudity" means a state of nudity that involves a lewd exhibition or graphic focus on the genitals.
(2) "Telecommunications device" has the same meaning as in section 2913.01 of the Revised Code.
Section 2.  That existing sections 2151.022, 2152.02, and 2907.323 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. H.B. 23 and Am. Sub. S.B. 53 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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