Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2002

State of Hawaii

Sir:

Your Committee on Health and Human Services, to which was referred S.B. No. 2684 entitled:

begs leave to report as follows:

The purpose of this measure is to deter child pornography by bringing Hawaii's child pornography laws in line with federal statutes, and to criminalize the use of computers to victimize children.

Your Committee received testimony in support of the measure from the Attorney General, Honolulu Police Department, Honolulu Prosecuting Attorney, Hawaii Family Forum, and Sisters Offering Support. Your Committee received comments from the Office of the Public Defender.

Your Committee finds that the State must prove beyond a reasonable doubt that a pornographic image is of a child who is less than sixteen years of age to prove the crime of child abuse under the current law. Unfortunately, it is often impossible to prove the age of a child in a pornographic image, even when the child appears to be a minor. Moreover, in this age of computer generated images, pornographers sometimes use the defense that the image could have been created using several different children, or using some children and some adults. Thus, when the State attempts to prove that there is a child of under sixteen in the image, the defense counters that the State cannot prove that the image even includes a person because the image could have been computer generated. The State’s burden of proof under current law is to disprove the possibility that the image could have been created using more that one child. This is often impossible even when the image contains the clearly identifiable face of a child on a body performing a sexual act. The federal definition of pornography that this bill seeks to enact was designed to address these issues.

Your Committee further finds that the use of the Internet to entice children into meetings has become widespread. This measure would allow sex offenders to be investigated and prosecuted before they commit a kidnapping or other crime. One method of investigation that has been successful in arresting sex offenders before a child is hurt has been sting operations in which the sex offender’s intended victim is actually a police officer posing as a minor in chat rooms or E-mail communications. Once the sex offender agrees to meet the child and goes to the meeting place, the offender is arrested. However, the sex offender’s defense to attempted sexual assault is often the defense of impossibility because the person posing as a child was not actually a child. Therefore, it is important to criminalize the sex offender’s predatory computer behavior, so that the offender can be prosecuted for what the offender has actually done, as opposed to what the offender may have been trying to do.

Your Committee has amended this measure by:

Furthermore, your Committee respectfully requests the Judiciary Committee to review unclear language in section 1 relating to "reckless disregard of the risk". Your Committee is uncertain of this meaning and requests that further clarification be sought from the Department of the Attorney General.

As affirmed by the record of votes of the members of your Committee on Health and Human Services that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2684, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 2684, S.D. 1, and be referred to the Committee on Judiciary.