Bill Text: NJ A1013 | 2018-2019 | Regular Session | Amended


Bill Title: Provides for jurisdiction for prosecution for certain crimes against minors committed outside New Jersey.

Spectrum: Moderate Partisan Bill (Democrat 12-2)

Status: (Engrossed) 2018-09-27 - Received in the Senate, Referred to Senate Judiciary Committee [A1013 Detail]

Download: New_Jersey-2018-A1013-Amended.html

[First Reprint]

ASSEMBLY, No. 1013

STATE OF NEW JERSEY

218th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2018 SESSION

 


 

Sponsored by:

Assemblyman  GORDON M. JOHNSON

District 37 (Bergen)

Assemblywoman  MARLENE CARIDE

District 36 (Bergen and Passaic)

Assemblyman  GARY S. SCHAER

District 36 (Bergen and Passaic)

Assemblywoman  VALERIE VAINIERI HUTTLE

District 37 (Bergen)

Assemblywoman  HOLLY SCHEPISI

District 39 (Bergen and Passaic)

Assemblywoman  JOANN DOWNEY

District 11 (Monmouth)

 

Co-Sponsored by:

Assemblyman McGuckin, Assemblywomen Muoio and Jimenez

 

 

 

 

SYNOPSIS

     Provides for jurisdiction for prosecution for certain crimes against minors committed outside New Jersey.

 

CURRENT VERSION OF TEXT

     As reported by the Assembly Judiciary Committee on September 17, 2018, with amendments.

  


An Act concerning territorial jurisdiction and amending N.J.S.2C:14-2 and N.J.S.2C:24-4.

 

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

 

     1.    N.J.S.2C:14-2 is amended to read as follows:

     2C:14-2.  Sexual assault.  a.  An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

     (1)   The victim is less than 13 years old;

     (2)   The victim is at least 13 but less than 16 years old; and

     (a)   The actor is related to the victim by blood or affinity to the third degree, or

     (b)   The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status,

     (c)   The actor is a resource family parent, a guardian, or stands in loco parentis within the household;

     (3)   The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape;

     (4)   The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object;

     (5)   The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion;

     (6)   The actor uses physical force or coercion and severe personal injury is sustained by the victim;

     (7)   The victim is one whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent.

     Aggravated sexual assault is a crime of the first degree.

     Except as otherwise provided in subsection d. of this section, a person convicted under paragraph (1) of this subsection shall be sentenced to a specific term of years which shall be fixed by the court and shall be between 25 years and life imprisonment of which the person shall serve 25 years before being eligible for parole, unless a longer term of parole ineligibility is otherwise provided pursuant to this Title.

     b.    An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim.

     c.     An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

     (1)   The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

     (2)   The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;

     (3)   The victim is at least 16 but less than 18 years old and:

     (a)   The actor is related to the victim by blood or affinity to the third degree; or

     (b)   The actor has supervisory or disciplinary power of any nature or in any capacity over the victim; or

     (c)   The actor is a resource family parent, a guardian, or stands in loco parentis within the household;

     (4)   The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim.

     Sexual assault is a crime of the second degree.

     d.    Notwithstanding the provisions of subsection a. of this section, where a defendant is charged with a violation under paragraph (1) of subsection a. of this section, the prosecutor, in consideration of the interests of the victim, may offer a negotiated plea agreement in which the defendant would be sentenced to a specific term of imprisonment of not less than 15 years, during which the defendant shall not be eligible for parole.  In such event, the court may accept the negotiated plea agreement and upon such conviction shall impose the term of imprisonment and period of parole ineligibility as provided for in the plea agreement, and may not impose a lesser term of imprisonment or parole or a lesser period of parole ineligibility than that expressly provided in the plea agreement.  The Attorney General shall develop guidelines to ensure the uniform exercise of discretion in making determinations regarding a negotiated reduction in the term of imprisonment and period of parole ineligibility set forth in subsection a. of this section.

     e. 1[An] For purposes of N.J.S.2C:1-3, when an1 actor's supervisory or disciplinary power over 1[the] a1 victim 1[which commenced in this State]1 pursuant to subparagraph (b) of paragraph (2) of subsection a. of this section or subparagraph (b) of paragraph (3) of subsection c. of this section 1[continues in any jurisdiction] commences in this State, an act of sexual penetration or sexual contact with the victim occurring outside the State constitutes an offense under this section as if the conduct occurred in this State1.

(cf: P.L.2014, c.7, s.1)

 

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

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

     a.     (1) (a) Any person having a legal duty 1[in this State]1 for the care of a child or who has assumed responsibility 1[in this State]1 for the care of a child who engages in sexual conduct within 1[or outside]1 this State which would impair or debauch the morals of the child 1, or any person having a legal duty in this State for the care of a child or who has assumed responsibility in this State for the care of a child who engages in sexual conduct outside this State which would impair or debauch the morals of the child,1 is guilty of a crime of the second degree.  1[Any legal duty or assumption of responsibility which commenced in this State continues in any jurisdiction] For the purposes of determining territorial jurisdiction pursuant to N.J.S.2C:1-3, the assumption of responsibility in this State for the care of a child shall be considered conduct which is a material element of the offense1.

     (b)   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 section 1 of 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 1:

     (a)1 depicts a child engaging in a prohibited sexual act or in the simulation of such an act 1; or

     (b) portrays a child in a sexually suggestive manner1.

     "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.

     1"Portray a child in a sexually suggestive manner" means:

     (a)   to depict a child's less than completely and opaquely covered intimate parts, as defined in N.J.S.2C:14-1, in a manner that, by means of the posing, composition, format, or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the child; or

     (b)   to depict any form of contact with a child's intimate parts, as defined in N.J.S.2C:14-1, in a manner that, by means of the posing, composition, format, or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the child; or

     (c)   to otherwise depict a child for the purpose of sexual stimulation or gratification of any person who may view the depiction where the depiction does not have serious literary, artistic, political, or scientific value.1

     "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; 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 1or to be portrayed in a sexually suggestive  manner1 if the person knows, has reason to know or intends that the prohibited act 1or portrayal1 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 1or for portrayal in a sexually suggestive  manner1 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 1or for portrayal in a sexually suggestive  manner1.

     (5)   (a)  A person commits a crime 1[of the second degree]1 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.

     1A violation of this subparagraph that involves 1,000 or more items depicting the sexual exploitation or abuse of a child is a crime of the first degree; otherwise it is a crime of the second degree.1

     Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person whose offense under this subparagraph involved 1at least1 25 1[or more]  but less than 1,0001 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.

     1Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person whose offense under this subparagraph involved 1,000 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 10 years, whichever is greater, during which the defendant shall be ineligible for parole.1

     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)1,1 or (5) of this subsection, or under any similar statute of the United States, this State1,1 or any other state for an offense that is substantially equivalent to paragraph (3), (4) 1,1 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)   1(i) A person commits a crime of the first degree if he knowingly possesses, knowingly views, or knowingly has under his control, through any means, including the Internet, 100,000 or more items depicting the sexual exploitation or abuse of a child.

     (ii)   A person commits a crime of the second degree if he knowingly possesses, knowingly views, or knowingly has under his control, through any means, including the Internet, at least 1,000 but less than 100,000 items depicting the sexual exploitation or abuse of a child.

     (iii)1 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, 1[an item] less than 1,000 items1 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) 1,1 or (5) of this subsection, or under any similar statute of the United States, this State1,1 or any other state for an offense that is substantially equivalent to paragraph (3), (4) 1,1 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 1or portrayed in a sexually suggestive  manner1 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, 1provided that each depiction that is in the form of a photograph, picture, image, or visual depiction of a similar nature shall be considered to be one item and each depiction that is in the form of a film, video, video-clip, movie, or visual depiction of a similar nature shall be considered to be 10 separate items,1 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.

(cf: P.L.2017, c.141, s.1)

 

     3.  This act shall take effect immediately.

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