 I said, see you again, nice to see you, and so from my in terms of background, you'll see that this is going to be a committee bill, because this is something that the language, the State Journal's Office requested, language on this issue, and it was, it came in too late, in terms of when you actually see the bill, so that's why this is a committee bill, and David Sherham, the Attorney General's Office will be here, but I thought Michelle as a draft here could help us understand the title we're in, just some high level what basically what these laws can do, and generally what the bill is intended to do. I'm really glad to be, do this in light of Tom's announcement about his son. My son is now a detective with the Seattle Police Department on the Internet Crimes Against Children Division, so. More power to him, right? He just first arrest last week, so. Anyway, okay. All right, so before the record, Michelle Childs Office of Legislative Council, and as the chair mentioned, this would be a committee bill, and I'm just going to give you kind of a broad overview, because again, as Representative Grabb mentioned, this is a proposal that is coming from the Attorney General's Office, and David is here, and he, so if you have questions about why do we need that, why this thing, whatever, that's all coming from them, I'm just more kind of took what they wanted, and put it into the right drafting format, and things like that, so I'm going to set you up for the discussion. So what this is doing is it's amending Chapter 64 in Title 13, so Title 13 or criminal title. Chapter 64 is entitled Sexual Exploitation of Children. Most of what's in here, there's a number of crimes, but a lot of what's being amended is around when you think about child pornography sexual performances. So we'll go through and I'll show you the changes. So starting out in Section 2021 in the definition section, you'll see the first change is on on page two, and this is amending the definition of sexual conduct. And you'll see on line 14, the new addition of any simulation of any of the above described con conduct. So it's going to be encompassing anything that's a through F, and any simulation of that. Next changes on the definition of sexual performance. So you'll see it means any performance or any part of a performance which includes sexual conduct. And right now it's by a child and this adds by, with, for on a child. So I think probably the AG's office can talk to you about why they need that expanded and the types of conduct that might fit under that and why the current definition is not adequate for their purposes. Top of page three. Next change is to the definition of promote. And so this is adding, you'll see on line three that making the material available would also fall under promote. And then also on line four would all by any means and talks about under current law, including electronic transmission. And this includes adding file sharing or peer to peer networks. So again, something that we see, you know, almost every year is some type of legislation that's updating criminal laws to reflect the evolution of technology, right? So I think oftentimes when you look at a lot of the statutes, it may not, you know, with everything changing with cell phones and cameras and all those kinds of things that I'm not looking to go backwards. But why isn't the file sharing and peer to peer networks included under electronic transmissions? I don't know. That's I would say, my guess is that the AG's office and prosecuting these cases is coming up into these terms, these terms and maybe feeling as though they're having to argue that it should cover certain things and perhaps is not. And so they want to be explicit and clarify here in the language. So next, I'm sorry, I guess I'm really naive. What does sexual performance mean? The definition is on the bottom of page two. So it's any performance, which includes sexual conduct by with or on a child, and then the definition of sexual conduct is right there in subdivision two. So it's any of those things. So if you look at the top of page two, from like line one down to line 14. So there's a number of places in this chapter where there's just a technical amendment around how we talk about age. And so I won't mention those, but that's just a technical amendment in section 2822. There's no change just to 2823, but I'm amending the whole chapter. So I just have everything in there. I think it's also because of the we amend the penalty section, I wanted to have all parts of the chapter there so you could look and see how the penalties all fit together. Page four top of page four section 2824. And this is promoting a recording of sexual conduct. And again, this is adding the word talks about sexual conduct by under current law by a child, this is added with or on a child as well. So we see that earlier on the definition of sexual performance. Next changes are on page five and section 2825. And so this is the penalty section. This is an old chapter. And so it's a little, it's a little unusual in the way that it is, it has all the different crimes in different sections. And then it has one penalty section that then refers back to all those particular sections rather than oftentimes when you're looking in a section will say, you know, here's the crime, here's the elements and here's the punishment. You do it. So we're looking at 2825. And I've reworked subsection C there's a new misdemeanor crime added in there. There's one crime, there's an area of crimes that's increased from a two year misdemeanor to a three year felony. And then the five years, this is in subsection C I'll take you through a subdivision by subdivision, but I had to kind of rework it all to add the new stuff in. So you've seen subsection C for for the penalties and this is referring to 2827, which again, it's the way that this the chapter is kind of structured is weird because the penalties are before 2528 27. But if you look on page seven, you can see when we're talking about 2827, we're talking about what's currently labeled as possession of child pornography, and the proposal is to change it to possession of child sexual abuse materials. So when we're talking about subsection C, we're going to talk about that particular section. And here's the penalties. So under subdivision C one, it creates a new misdemeanor for a year maximum if the violation of 2827 involved a visual portrayal of a child who is nude or partially clothed and the visual portrayal is and it has to have all of these has to be unrelated to the sale of a commercially available legal product has to be used for purely current purposes, and have no serious literary, artistic, political, or scientific value. Okay. So we're starting to see more and more, like you had mentioned with the change in electronics. People using tools to lawyer, you know, either publicly or at their own home. So the act of that would fall into that category? It might I would say if you're talking about like lawyers and ministers and secretly filming someone, we have a specific voyeurism law that's in another chapter. So if you remember, when I was talking about the prostitution bill is there's two sub chapters in that chapter, which is it's lewdness and prostitution, the lewdness sub chapter has a specific crime of voyeurism. And that's where either people are kind of the peeping Tom stuff, or using some type of device to record someone who is partially clothed or engaged in a sexual act. And so that's a separate crime. And being a child, but being a child. Yes. And so possessing those images. So it could be that somebody might be able, depending on the circumstances, they could be charged under voyeurism. But then they could also be charged under having and being in possession of this material. Yep. So that's a one year misdemeanor subdivision. I'm sorry. Okay, so number one online 12 down through A, B and C is a new crime. Yes. And well, it's yeah, it's kind of I would say kind of a new crime, because if somebody is doing these things now, I'm going to assume there's a penalty for it. Well, I think that would be for I think for David to answer my question. Again, I'm assuming that these things are coming and being proposed by Attorney General's offices because they're not either clearly prosecutable under an existing provision of law, or they want another tool there. But I think that's going to be more of a question for for David. Okay. So subdivision C two, and this is a three year felony for possessing a clearly lewd exhibition of a child's general or anus or other other than a depiction of sexual conduct by a child. And that is currently you'll see at the top of page six, where the line with the where the language is struck that's currently a two year misdemeanor. And so this particular crime again is on the books, but it's a two year misdemeanor and subdivision C two is increasing it to a three year felony. And then lastly, page six subdivision C three, and this is looks like it's a lot of change, but it's really not changing anything. I just had to do it in the context of subsection C, which is that if you're violating 2027, and it involves possessing material that involves sexual conduct by a child again going back to your definition of sexual conduct that's in in subdivision two on page two, then that is a five year felony and that penalty is not changing. Next changes are on subsection E. And, and so this is for a violation of 2828, which is luring a child. So if you just want to look at the existing language and what conduct that includes, you would look on page nine for luring a child. And so the current penalty for luring a child is a five year felony. But there's two new carve outs for that that have increased penalties. So you'll see in subdivision E two, if a person is convicted of luring under 2828. But the violation involved the person physically traveling to meet a child who's under 16 years of age or another person who they believe to be a child under 16 years of age. So if it's a law enforcement officer doing something kind of a sting operation, and the person thinks that they're meeting a child, then that would be a 10 year felony, not a five year felony. And then subdivision E three is that if someone has a subsequent, so if they've already have one conviction for luring, and then they get a second or subsequent, then that would be a 10 year felony. Page seven. So going to the possession of child pornography section. So you'll see online 16. So right now talks about no person shall with knowledge of the character and content possess. And then this is adding or knowingly access with the intent to view again, you know, I think what David can talk about is what they're seeing in terms of using electronics and using the internet and whether or not people feel as though I could see that the word possess would be a little ambiguous when you're talking about people accessing something on the internet. You'll see online 18 this this language that we've already seen a couple of different places when you're talking about sexual conduct by with or on a child line 19, bringing in the provision we talked about before, which is visual portrayal of a child who was nude or partially clothed if the visual portrayal is and then talks about the that it's not related to commercially available product. It's used purely for puriant purposes and has no serious literary, artistic or scientific value. And then I think that's it in terms of substantive changes. I think the rest are just technical and then it has an effective date of this July. Yeah, just with the just kind of jog something with visual portrayal of a child who is nude or partially clothed. What if take Facebook? What if somebody posted a picture of their say the three year old son from the back? And that was that was new just because they thought it was cute to show a picture of their son. I mean, I would certainly I would argue that that's not being used for purely puriant interests, right? Okay. And that's the purpose of that is now is to be like, look, look how cute my kid is, rather, you know, to my to my family rather than trying to arouse sexual interest in someone. Yeah, no, these are these these are very, very tricky issues. And when this committee has grappled with the voyeurism law with the revenge porn law with all of these things is trying to look at and say, well, what, what images constitute, you know, something what crosses the line is, is it takes a lot of discussion and to be able to accurately identify it for purposes of the statute and make sure that you're not sweeping in things that you don't intend to, whether it be artistic or scientific or literary or somebody just sharing pictures of their kids with the most innocent purposes. Yeah. So it seems a little ambiguous. I'm looking at that. That something could be put off innocently and then somebody actually uses it for that purpose. Right. See, why why? I would suggest that this is really this David. Why would we do something like intended for use for purely per unit purpose? So there's an intent element to that of the person actually setting it out? Yeah, I did not choose that language. So I think you would have to ask as to why I think we're going to hear about how these cases are successfully or not successfully prosecuted and the challenges that do we have? To me, I mean, you could be as to having to, whether or not you have to be proving the intent of the person, did they intend to just share it, you know, and then you say, they say, well, I intended, you know, to share it, like, very innocently, you know, when they say, well, how do you prove that they intended it for brand purposes? Okay, you just have to make clear. Good morning, David chair with the Attorney General's office. Thanks for having me this morning. This proposal is coming from our criminal division. And to give the committee a little bit of background, our criminal division has dedicated investigators pursuant to some federal funding called the Internet Crimes Against Children Task Force and federal government funds, I believe, sort of equipment and technical parts of that, what they need to provide. And then the state of Vermont funds the investigators. And there's also some investigators in the Department of Public Safety work on this also. So our office ends up doing a large number of these prosecutions. And that's why it is us who are coming to you today with this proposal. I will, and I should also say we posted, I believe Mike was successfully able to post a series of articles from the New York Times last fall that do a very good job of describing the scope of the problem. Certainly our investigators are and our prosecutors are somewhat overwhelmed with the volume cases and issues that they spot. So this is partially in response to what the New York Times did a very good job of describing in terms of the scope of the problem. So where are the leads coming from? Where are leads coming from? Oh, so I should also say, it's as partial answer to that question, we wanted to have investigator Matt Raymond come in and talk to you today so that he could talk about exactly those types of technical questions, and also frankly, talk about some of the practical obstacles they see, which this bill attempts to answer. Will he be coming in earlier? I assuming the committee is okay with having him. Yes, he will be available. Is that a conference right now? So he just isn't in the state. But next time this gets taken up, we'd love to have him talk to you and answer some of those questions. And he can tell you more about the process of investigation, which produces those leads. So going through the bill, I will go to page two here and talk a little bit about some of the policy concerns and some of the stuff that we're talking about here is pretty uncomfortable just to give people a heads up, which I'm sure you realize. The simulation of any of the above described conduct and that which is the line 14 amendment, the amendment online 14 and the amendment online 20, which includes the with or on a child. These were both amendments aimed at getting around loopholes, if you will, but that attorneys are using and defendants are using when prosecutions are being brought in instances where there's clearly sexual conduct occurring. But the sexual conduct may not have been caught with somebody touching somebody else. So for example, a video depicting somebody masturbating onto a child. That's actually not that because there hasn't been the physical touching that's described in this performance definition. The hope is that with by including the both of those amendments, that type of behavior will be more clearly captured by the definition. Another example that they have given where they've had, and these are all coming from specific cases where they've had difficulty with prosecutions, even though again, there's clearly some bad behaviors happening. They've seen videos and images, there's been videos and images found where there's an erect penis that's very close to say the mouth or genitals of a child. And again, without that intentional touching piece of it. The definition currently doesn't include that in the hope and the belief is that by including in the definition the simulation part of it and the with or on a child part of it will both encapsulate that behavior more effectively. Again, this is stuff that a common sense observer would say clearly this is child sexual abuse material. But the there's some technical legal loopholes that have been exploited by people in these cases. Moving on to the next page, page three. This is really about updating it to take account for modern technology. And represent a verdict you have. This is a question about that, which was well taken. And it's, you know, what are we doing here? Why wouldn't this be why wouldn't the peer to peer file and file sharing networks already be covered? And again, when you look at it carefully, peer to peer file, peer to peer networks and file sharing means that somebody isn't necessarily in possession or has arguably not procured any of the images or videos. They are just watching a stream of them that and that a streaming of that. But the information, if you will, is being stored somewhere else, some other computer, some server somewhere else. And they're accessing it in a manner such that it's not in the device that they are in possession. So right now, arguably, streaming isn't covered by this. And that's been an argument that's been successfully made in cases. So something that stored somewhere else. But so this is covering somebody who might be watching it, but it's not loaded in their computer. Right. So the drop box or something like that. It would be like I don't because I know not that I have a lot of information just talking with my son that some people will store their their stuff in drop box. Is that the reason that maybe some laws don't don't cover it as well as we intend to? As long as what's happening is the remote accessing of it, and I'm actually not sure about drop box in particular, the examples that come to mind are actually old examples from back in the days when streaming music was very popular. Spotify has kind of killed off the illegal aspect of that industry. But like LimeWire and Napster, thank you, were the prime examples of that. And those were peer to peer file sharing networks where the music you're listening to was not on your computer, it was somewhere else. But you were able to access it. And the same types of technology are being used for the dissemination of child pornography. And I should say child sexual abuse material. And the other aspect of this is that when you are accessing those, the way this technology works is when you're accessing those videos and watching them, you are by doing so making them available to other people. The way the peer to peer networks operate as I understand it, and I'm not an expert myself on this, is that the act of watching it makes it available for other people too. It opens up the network and makes it more available for other people to access as well. So you are both accessing it and you're disseminating it in the act of doing so. So the usage of these peer to peer networks really expands, very rapidly expands the ability for people to access the material. So that's why that's being added. And again, these are coming from specific prosecutions that have run into trouble because of the definitions not covering things that a common sense observer would say clearly that was intended to be covered by the statutes. On page four, the way they're on is like, that's the only change. And again, that's repeating the change made on the prior page. One other nuance I will put in here. My understanding is that in addition to what I already mentioned, the with or on clarifies that the child doesn't need to have agency in this. When you say contact by a child, it makes it appear as though the child has some agency here. And the point is, however you want to look at it, they don't. And just clarifying that that an element of the crime is not trying to prove that the child had some sort of agency in participating. No. Couldn't somebody in this day and age, because I'm not tech savvy, but can't they go and set up their own stuff by taking different parts of something and going and actually making something that didn't happen, happen and go and use that if they want to get somebody. You mean like creating a false document and then binding it or something like that or video or or something. You know, you go and you see these. I don't even know what they call them, but where they're dogged up and, you know, for like funny thing, what are they called those minis or whatever they are all that stuff. I mean, can't they do that same thing on stuff like this? I'm sure they could. I'm sure they do. I think the underlying policy goal here is to make a market for this as difficult as possible. I understand that, and I'm all for that. And one of the fixes that we have here is the simulation piece that we talked about on the prior page, page two, sorry, thank you, on line 14. And part of the point of that, any simulation of the above described conduct is to capture those types of videos where a defense may be raised that this didn't actually happen in real life, but we took an image of a child and an image of an arachnidiness, which is an example that I used already, and put them together. And that still is, frankly, satisfying the interests of people who want to get at this material. And the point is to really make that something that's difficult, make that market a difficult one to access and maintain. What happens if somebody wants to go and look at something, and they don't even know what they were looking at, and then all of a sudden they go on to something that is just as disgusting as this is, and they didn't mean to even go there. Or they had no idea what they were. Intent is always a defense in criminal law. If it genuinely was an accident, and it's not something you repeated, that's the defense you could bring up if you ended up getting caught up in some sort of, or a person got caught up in some sort of investigation, and there was a genuine, genuinely no intent to access that material. I think that would be a defense, but that would be a factual, case-by-case inquiry. So do you think the agency, if folks understand, the general agency that Naird was talking about, that there's no agency? Folks get that? Go ahead. Where are you at now? Well, for example, line three, the reason what, it had just said sexual conduct by the child, and so the words with, or an ant, so they were wanting to just Yeah, so the concept we're getting at there is making sure it's very clear to judges and juries and so forth, that the child doesn't have to have been intending to engage in this, or have meant to engage in this, or was trying to engage in this. When you use the word by, it makes it see, arguably, makes it seem as though you have to find that the child had some sort of purpose in doing this, and this is to make it clear that, that is not something that was, is intended or needs to be found, it's just the fact of the child being there and being abused in this way is sufficient. So moving to page five. David, before you. Yeah. This pertains to nothing you're talking about at this point. What was the investigator's name that? Matthew Raymond. Matthew Raymond. We'll have him in here next time we take it up. He'll be back, he's back in the state, starting Monday. I actually think it might be a little easier if we hold the penalties section because of the strange design of this statute. Hold the penalties section for a minute. I thought about rewriting all of it and I thought it was going to make your job a lot harder. That's fine. Let's jump ahead to page seven if you don't mind, and then we'll come back to the penalties just because normally that's how we would talk about these things. So on page seven, line 16. This is again another fix aimed at the live streaming peer-to-peer network type of issue where we're talking about possession. Somebody who's live streaming it, certainly we would view it just as culpable of somebody who is has it in their possession and this is just making clear that live streaming is also illegal. I think this goes to Ken's question as well. Earlier where it talks about knowingly access. Yeah it's a good point. So that's where there has to be intent to actually access Yeah thank you that's a good good point on that goes right to that issue. The next, oh thank you. Good to go. The next chunk I want to talk about is this additional category of behavior that is basically being proposed as a new crime that's being criminalized. This is getting at what is sometimes termed child erotica and will sometimes be images oftentimes or I should say the cases that are concerning to investigators are instances where somebody has possession of a very large number of photographs of children who may be nude or partially clothed or are clothed in very sexually provocative positions and currently that behavior is not unlawful under the statutes because the child sexual abuse material is narrowed to the sexual conduct is defined by the sexual conduct parts of it that are in statute that we went over earlier on pages mostly on page two. So this gets at that behavior. Our prosecutors and investigators would acknowledge that this is going to be an unusual charge it's not likely to be able to be brought because the carve outs are broad and that's appropriate. The point here is not to criminalize things like the picture of the child in the bath that's an innocent family photo which is a good example that you brought up and one thing that's going through my mind is just thinking back to the John Bene Ramsey case I mean what was she eight years old or something but just all made up and not in any provocative clothes but even kids that age they sometimes when they have their pictures taken if it was an adult woman posing in the same way would be considered sexual. So right and again the I think the caveat with on line one of page eight used for purely prurient purposes is intended to really keep out those types of behaviors. I will also say in the interest of full transparency our lawyers have been looking at this section again over the last day or two and we are considering proposing some changes to this piece of it because we do understand some of the concerns that have already been raised with respect to potentially being over broad. We this comes from this is actually taken almost directly from the current West Virginia statute that is good law. There's a Texas statute that's quite similar that is good law so we believe that there's this is sort of constitutionally permissible we also want to make sure that we are really within the confines of what's constitutionally permissible in terms of what you can regulate and make unlawful. So we I would say are likely to come back as soon as possible with some proposed amendments to this piece just to make sure we're not stepping onto shaky ground because we it's certainly not our intention to propose something that might be unconstitutional. So we'll probably come back and narrow this a little bit redefine it slightly. I just want to let the committee know that that we are cognizant of that issue. So having said that let's actually jump back to page five and the penalties. We can jump down to line nine here and again this is the same change we already went over on page seven where we're trying to cover live streaming and peer-to-peer networks. And then the structure of if we move further down this is as Michelle noted just the way that this statue is written we had to import the entire definition of this new offense into the penalty section to make it work. That being said this if the other thing changes this will change too. So if this is redrafted to make it narrower and more clearly defined for to make it make certain that we are within the constitutional boundaries this will also change. And then as Michelle noted the penalty structure changes slightly such that this becomes a yeah hold on one second that this becomes a three-year felony and the on subsection three on the next page there's a five-year felony that actually isn't a change that's the same penalty that existed previously but there would be a bump up from a two to three year for the possession sections. So unlike the 18 in prison not more than three years or five not more than five thousand oh or both okay I'm good so can you say why it would move up from two to three? I think the concept was that if they're going to include this new crime for a different set of behavior it made sense to have this be the lowest penalty level and then move the more arguably more severe violations up one level that was the violation I will say you know again perfectly transparent if the committee has different ideas about how they want to structure that I don't think our office is particularly concerned about the precise years here the main the main goal of this bill is to make sure that the harmful behavior that's happening is captured by our statutes so I'd say that if you want a discussion about that we're fine with having a discussion about that the the real thrust of this bill is the stuff that happened the stuff that we're proposing with respect to file sharing and simulations and so forth. So I take it so when I first looked at this bill I mean it's just like wow right so it's really mind-boggling but I take it most of you in this room have dealt with this bill before or this content before correct I'd be mixed ten year on you know ten year on the committee in a while six so it's been this way for a long time it was one aspect we did David have one answer now we don't touch on a little bit of this a tidying piece of this and human services when we're there I don't remember that yeah I don't think it's been a while I think my recollection was the last time that really much of this chapter was really kind of teetered with was kind of when Eric was new which was I think 1999 quarter I was going to say that the 1999 was his first and not the sense of stuff it was 99 would have been the start of file sharing just for music and stuff what it wouldn't have been a technology that we would have been thinking about yeah but that was like in that Napster years so you missed that completely yeah and it sounds like I can't I'm glad I did well Napster was fun well okay so I'm happy to answer any questions that was the presentation and as I said we'll come we will come back on that one piece because I don't have any questions about it but I do have a just a timing thing here you know I I see why the bills being brought forward but I'm I'm a little bit you know unnerved at the at the coming forward as a as a potential committee bill if this isn't uh was were these issues that came up within the past couple of months since we've been session I can't speak to the sort of introduction of the bill piece in terms of the committee bill piece I'm not as familiar with how that happened in this situation I mean I can tell you was not brought to the attention of the committee until after the bill drafting deadline that could well be and I actually wasn't the person who in my office so I can check and get your answer on that I will I'd hope that your office in the future would seek to especially given the fact that we have about 60 bills on the wall that representatives were hoping would have a hearing that they could take some time to make sure that all the issues they need addressed have the time to get introduced in the proper manner I will certainly remind folks that that is how we need to do things speaking of building the wall do you consider or think about whether the result of the task force that looked into the room which suggested a change to 2028 which I know is in this bill whether that like the included here it's it's currently in each 659 right which is exactly the language that that task force recommended I think you were on that I wasn't on the tax force yeah so I'm not wondering whether that fits into what we're doing here I'd ask the chair of that as well but since I was at that section that that task force suggested mending as part of this bill sure and I will check with our criminal division and see how they feel about pulling that in and get you a clear answer on that next time when you take it out 659 and I like it because my name's on it but the point is that it is exactly the language that this particular right task force wanted and nobody else apparently wanted to try to get it into the well it's basically the same as 618 at the top too right it's not no that's what I love about you lawyers grooming in my hair how am I getting blamed for that people pivoting grooming atrial that is the 619 I mean 618 has to do in the context of human trafficking solely within human trafficking and what constitutes I'm just a word defined but adding grooming into the definitions for human trafficking and this is on and I'm remembering in September 64 so in another area of law