HOUSE Amended 2nd Reading April 20, 2006Second Regular Session Sixty-fifth General Assembly STATE OF COLORADO ENGROSSED This Version Includes All Amendments Adopted on Second Reading in the House of Introduction LLS NO. 06-0252.01 Michael Dohr HOUSE BILL 06-1011 HOUSE SPONSORSHIP McCluskey, SENATE SPONSORSHIP Sandoval, House Committees Senate Committees Judiciary Appropriations A BILL FOR AN ACT Concerning child exploitation offenses, and making an appropriation in connection therewith. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Prohibits a person from using a computer network to contact a child with the intent to lure the child to meet that person without the express consent of the child's parent or guardian if the person is not related to the child and the child is under 15 years of age and the person is at least 4 years older than the child. Requires an offender convicted of internet luring of a child to register as a sex offender. Applies the 10-year sex offense statute of limitations to internet luring of a child. Prohibits a person from using a computer network to entice a child to expose or touch the child's own or another person's intimate parts or observe the person's intimate parts while communicating with the child via a computer network if the child is under 15 years of age and the person is at least 4 years older than the child. Makes possession of more than 20 different items of sexually exploitative material pertaining to children a class 4 felony. Makes a 5-year statutory appropriation. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 16-11.7-102 (3) (t), Colorado Revised Statutes, is amended, and the said 16-11.7-102 (3) is further amended BY THE ADDITION OF THE FOLLOWING NEW PARAGRAPHS, to read: 16-11.7-102. Definitions. As used in this article, unless the context otherwise requires: (3) "Sex offense" means any felony or misdemeanor offense described in this subsection (3) as follows: (t) Patronizing a prostituted child, in violation of section 18-7-406, C.R.S.; or (v) Class 4 felony internet luring of a child, in violation of section 18-3-306 (4), C.R.S.; or (x) Internet sexual exploitation of a child in violation of section 18-3-405.4, C.R.S. SECTION 2. 16-22-102 (9), Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW PARAGRAPHS to read: 16-22-102. Definitions. As used in this article, unless the context otherwise requires: (9) "Unlawful sexual behavior" means any of the following offenses or criminal attempt, conspiracy, or solicitation to commit any of the following offenses: (x) Class 4 felony internet luring of a child, in violation of section 18-3-306 (4), C.R.S.; or (y) Internet sexual exploitation of a child in violation of section 18-3-405.4, C.R.S. SECTION 3. 18-1.3-1003 (5) (a), Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SUB-PARAGRAPHS to read: 18-1.3-1003. Definitions. (5) (a) "Sex offense" means any of the following offenses: (XI) Class 4 felony internet luring of a child, in violation of section 18-3-306 (4); or (XII) Internet sexual exploitation of a child in violation of section 18-3-405.4. SECTION 4. Part 3 of article 3 of title 18, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 18-3-306. Internet luring of a child. (1) A person commits internet luring of a child if the person knowingly communicates a statement over a computer or computer network to a child under fifteen years of age, describing explicit sexual conduct as defined in section 18-6-403 (2) (e), and, in connection with the communication, makes a statement persuading or inviting the child to meet the person for any purpose, and the person is more than four years older than the child. (2) The provisions of this section shall not apply if the person reasonably believed that his or her conduct was necessary to protect the child from danger to the child's welfare. (3) It shall not be an affirmative defense to this section that: (a) A meeting did not occur; or (b) The child was actually a law enforcement officer posing as a child under fifteen years of age. (4) Internet luring of a child is a class 5 felony; except that luring of a child is a class 4 felony if committed with the intent to meet for the purpose of engaging in sexual exploitation as defined in section 18-6-403 or sexual contact as defined in section 18-3-401. (5) For purposes of this section, "in connection with" means communications that further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the invitation to meet. SECTION 5. Part 4 of article 3 of title 18, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 18-3-405.4. Internet sexual exploitation of a child. (1) A person commits internet sexual exploitation of a child if a person, who is at least four years older than a child who is under fifteen years of age, knowingly importunes, invites, or entices the child through communication via a computer network or system to: (a) Expose or touch the child's own or another person's intimate parts while communicating with the person via a computer network or system; or (b) Observe the person's intimate parts while communicating with the person via a computer network or system. (2) It shall not be an affirmative defense to this section that the child was actually a law enforcement officer posing as a child under fifteen years of age. (3) Internet sexual exploitation of a child is a class 4 felony. SECTION 6. The introductory portion to 18-3-407 (2), Colorado Revised Statutes, is amended to read: 18-3-407. Victim's and witness's prior history - evidentiary hearing - victim's identity - protective order. (2) In any criminal prosecution for class 4 felony internet luring of a child, as described in section 18-3-306 (4) or under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, or for attempt or conspiracy to commit any crime under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404 of said crimes, if evidence, that is not excepted under subsection (1) of this section, of specific instances of the victim's or a witness's prior or subsequent sexual conduct, or opinion evidence of the victim's or a witness's sexual conduct, or reputation evidence of the victim's or a witness's sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial, the following procedure shall be followed: SECTION 7. 18-6-403 (5), Colorado Revised Statutes, is amended to read: 18-6-403. Sexual exploitation of children. (5) The sexual exploitation of a child is a class 3 felony; except that sexual exploitation of a child by possession of sexually exploitative material pursuant to paragraph (b.5) of subsection (3) of this section is a class 1 misdemeanor, but a second or subsequent offense by such possession or a first or subsequent offense of possession of more than twenty different items qualifying as sexually exploitative material is a class 4 felony. SECTION 8. 18-3-411 (1), Colorado Revised Statutes, is amended to read: 18-3-411. Sex offenses against children - unlawful sexual offense defined - limitation for commencing proceedings - evidence - statutory privilege. (1) As used in this section, "unlawful sexual offense" means enticement of a child, as described in section 18-3-305, sexual assault, as described in section 18-3-402, when the victim at the time of the commission of the act is a child less than fifteen years of age, sexual assault in the first degree, as described in section 18-3-402, as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault in the second degree, as described in section 18-3-403 (1) (a), (1) (b), (1) (c), (1) (d), (1) (g), or (1) (h), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age, or as described in section 18-3-403 (1) (e), as it existed prior to July 1, 2000, when the victim is less than fifteen years of age and the actor is at least four years older than the victim; unlawful sexual contact, as described in section 18-3-404 (1) (a), (1) (b), (1) (c), (1) (d), (1) (f), or (1) (g), when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault in the third degree, as described in section 18-3-404 (1) (a), (1) (b), (1) (c), (1) (d), (1) (f), or (1) (g), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than fifteen years of age; sexual assault on a child, as described in section 18-3-405; sexual assault on a child by one in a position of trust, as described in section 18-3-405.3; aggravated incest, as described in section 18-6-302; trafficking in children, as described in section 18-6-402; sexual exploitation of a child, as described in section 18-6-403; procurement of a child for sexual exploitation, as described in section 18-6-404; indecent exposure, as described in section 18-7-302, soliciting for child prostitution, as described in section 18-7-402; pandering of a child, as described in section 18-7-403; procurement of a child, as described in section 18-7-403.5; keeping a place of child prostitution, as described in section 18-7-404; pimping of a child, as described in section 18-7-405; inducement of child prostitution, as described in section 18-7-405.5; patronizing a prostituted child, as described in section 18-7-406; class 4 felony internet luring of a child, as described in section 18-3-306 (4); internet sexual exploitation of a child, as described in section 18-3-405.4; or criminal attempt, conspiracy, or solicitation to commit any of the acts specified in this subsection (1). SECTION 9. Title 6, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW ARTICLE to read: ARTICLE 2.7 Internet Evidence For Law Enforcement Investigations 6-2.7-101. Definitions. As used in this article, unless the context otherwise requires: (1) "Court order" means an order for the release of information, including but not limited to a subpoena, court order, search warrant, or summons. (2) "Internet access provider" means an entity that provides internet access service as defined in 47 U.S.C. sec. 231 (e) (4), as amended, to customers in Colorado. 6-2.7-102. Internet evidence for law enforcement - preserve and release evidence - reports - training materials. (1) (a) An internet access provider, upon the request of a law enforcement agency, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other legal process. The internet access provider shall comply with the request as soon as possible following receipt. (b) Records referred to in paragraph (a) of this subsection (1) shall be retained for a period of ninety days, which shall be extended for an additional ninety-day period upon a renewed request by the law enforcement agency. (2) An internet access provider shall release evidence regarding unlawful sexual conduct within five days after receiving a court order requiring the internet access provider to release such evidence to the law enforcement agency within ten days after the receipt of the order by the internet access provider. If the internet access provider demonstrates that, for bona fide technical reasons, it cannot comply with the court order within five days, it shall comply with the court order as soon as possible. (3) An internet access provider shall provide the national center for missing and exploited children, pursuant to 42 U.S.C. sec. 13032, with the internet protocol address, name, address, city and state, or zip code information pertaining to a subscriber involved in a report or instance of apparent child pornography. (4) Each internet access provider with more than fifteen thousand subscribers who are residents of this state shall, upon request, provide training materials to law enforcement agencies in this state regarding best practices for investigating internet-related crimes involving sexual exploitation of children, the internet access provider data retention practices, and contact information for the internet access provider. (5) Subsections (1) and (2) of this section shall be interpreted consistent with the requirements of federal law that apply to internet access providers. 6-2.7-103. Internet evidence - failure to release or preserve - civil penalty. (1) An internet access provider that fails to comply with the requirements in section 6-2.7-102 shall be liable for payment of a civil penalty of up to two thousand five hundred dollars for each incidence of noncompliance; except that the internet access provider shall be liable for payment of up to ten thousand dollars for a third and subsequent incidence of noncompliance that occurs within a twelve-month period. The state attorney general is authorized to bring suit in a court of competent jurisdiction for enforcement of the provisions of section 6-2.7-102. (2) An internet access provider shall not be liable if, notwithstanding good faith efforts to comply, it is unable to provide the information requested due to a bona fide technical failure. (3) Except as otherwise provided in subsection (1) of this section, an internet access provider's failure to comply with the requirements specified in section 6-2.7-102 shall not result in further civil liability. SECTION 10. Part 1 of article 1 of title 17, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 17-1-153. Appropriation to comply with section 2-2-703. (1) Pursuant to section 2-2-703, C.R.S., the following statutory appropriations, or so much thereof as may be necessary, are made in order to implement H.B. 06-1011, enacted at the second regular session of the sixty-fifth general assembly: (a) For the fiscal year beginning July 1, 2006, in addition to any other appropriation, there is hereby appropriated from the capital construction fund created in section 24-75-302, C.R.S., to the corrections expansion reserve fund created in section 17-1-116, the sum of five hundred twenty-three thousand one hundred sixty-four dollars ($523,164). (b) (I) For the fiscal year beginning July 1, 2007, in addition to any other appropriation, there is hereby appropriated, from the capital construction fund created in section 24-75-302, C.R.S., to the corrections expansion reserve fund created in section 17-1-116, the sum of five hundred twenty-three thousand one hundred sixty-four dollars ($523,164). (II) For the fiscal year beginning July 1, 2007, in addition to any other appropriation, there is hereby appropriated to the department of corrections, out of any moneys in the general fund not otherwise appropriated, the sum of one hundred sixty thousand eight hundred seventy-eight dollars ($160,878). (c) (I) For the fiscal year beginning July 1, 2008, in addition to any other appropriation, there is hereby appropriated, from the capital construction fund created in section 24-75-302, C.R.S., to the corrections expansion reserve fund created in section 17-1-116, the sum of five hundred twenty-three thousand one hundred sixty-four dollars ($523,164). (II) For the fiscal year beginning July 1, 2008, in addition to any other appropriation, there is hereby appropriated to the department of corrections, out of any moneys in the general fund not otherwise appropriated, the sum of three hundred twenty-one thousand seven hundred fifty-six dollars ($321,756). (d) (I) For the fiscal year beginning July 1, 2009, in addition to any other appropriation, there is hereby appropriated, from the capital construction fund created in section 24-75-302, C.R.S., to the corrections expansion reserve fund created in section 17-1-116, the sum of five hundred twenty-three thousand one hundred sixty-four dollars ($523,164). (II) For the fiscal year beginning July 1, 2009, in addition to any other appropriation, there is hereby appropriated to the department of corrections, out of any moneys in the general fund not otherwise appropriated, the sum of four hundred eighty-two thousand six hundred thirty-four dollars ($482,634). (e) (I) For the fiscal year beginning July 1, 2010, in addition to any other appropriation, there is hereby appropriated, from the capital construction fund created in section 24-75-302, C.R.S., to the corrections expansion reserve fund created in section 17-1-116, the sum of five hundred twenty-three thousand one hundred sixty-four dollars ($523,164). (II) For the fiscal year beginning July 1, 2010, in addition to any other appropriation, there is hereby appropriated to the department of corrections, out of any moneys in the general fund not otherwise appropriated, the sum of six hundred forty-three thousand five hundred twelve dollars ($643,512). SECTION 11. The introductory portion to 24-75-302 (2) and 24-75-302 (2) (s), (2) (t), and (2) (u), Colorado Revised Statutes, are amended, and the said 24-75-302 (2) is further amended BY THE ADDITION OF THE FOLLOWING NEW PARAGRAPHS, to read: 24-75-302. Capital construction fund - capital assessment fees - calculation. (2) As of July 1, 1988, and July 1 of each year thereafter through July 1, 2009 2010, a sum as specified in this subsection (2) shall accrue to the capital construction fund. The state treasurer and the controller shall transfer such sum out of the general fund and into the capital construction fund as moneys become available in the general fund during the fiscal year beginning on said July 1. Transfers between funds pursuant to this subsection (2) shall not be deemed to be appropriations subject to the limitations of section 24-75-201.1. The amount which shall accrue pursuant to this subsection (2) shall be as follows: (s) On July 1, 2006, twenty-two thousand nine hundred twenty-four dollars pursuant to section 3 of H.B. 02S-1006, enacted at the third extraordinary session of the sixty-third general assembly; plus two hundred ninety-one thousand seven hundred sixty-one dollars pursuant to H.B. 03-1004, enacted at the first regular session of the sixty-fourth general assembly; plus one hundred twenty-five thousand forty-one dollars pursuant to H.B. 03-1138, enacted at the first regular session of the sixty-fourth general assembly; plus sixty-nine thousand four hundred sixty-seven dollars pursuant to H.B. 03-1213, enacted at the first regular session of the sixty-fourth general assembly; plus sixty-nine thousand four hundred sixty-seven dollars pursuant to H.B. 03-1317, enacted at the first regular session of the sixty-fourth general assembly; plus ninety thousand three hundred seven dollars pursuant to H.B. 04-1021, enacted at the second regular session of the sixty-fourth general assembly; plus sixty-nine thousand four hundred sixty-seven dollars pursuant to H.B. 04-1016, enacted at the second regular session of the sixty-fourth general assembly; plus five hundred twenty-three thousand one hundred sixty-four dollars pursuant to H.B. 06-1011, enacted at the second regular session of the sixty-fifth general assembly; (t) On July 1, 2007, four hundred sixteen thousand eight hundred two dollars pursuant to H.B. 03-1004, enacted at the first regular session of the sixty-fourth general assembly; plus fifty-five thousand five hundred seventy-four dollars pursuant to H.B. 03-1317, enacted at the first regular session of the sixty-fourth general assembly; plus thirteen thousand eight hundred ninety-three dollars pursuant to H.B. 04-1021, enacted at the second regular session of the sixty-fourth general assembly; plus five hundred twenty-three thousand one hundred sixty-four dollars pursuant to H.B. 06-1011, enacted at the second regular session of the sixty-fifth general assembly; (u) On July 1, 2008, sixty-nine thousand four hundred sixty-seven dollars pursuant to H.B. 04-1021, enacted at the second regular session of the sixty-fourth general assembly; plus five hundred twenty-three thousand one hundred sixty-four dollars pursuant to H.B. 06-1011, enacted at the second regular session of the sixty-fifth general assembly; (v) On July 1, 2009, five hundred twenty-three thousand one hundred sixty-four dollars pursuant to H.B. 06-1011, enacted at the second regular session of the sixty-fifth general assembly; (w) On July 1, 2010, five hundred twenty-three thousand one hundred sixty-four dollars pursuant to H.B. 06-1011, enacted at the second regular session of the sixty-fifth general assembly. SECTION 12. Appropriation. In addition to any other appropriation, there is hereby appropriated, out of any moneys in the general fund not otherwise appropriated, to the judicial department, for the fiscal year beginning July 1, 2006, the sum of nineteen thousand six hundred eighty-two dollars ($19,682) and 0.4 FTE, or so much thereof as may be necessary, for probation and related services. SECTION 13. Effective date - applicability. Section 9 of this act shall take effect October 1, 2006, and the remainder of this act shall take effect July 1, 2006, and shall apply to offenses committed on or after said date. SECTION 14. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.