S578

An Act concerning criminal prohibitions against sexually suggestive communications made to a minor and supplementing 2C of the New Jersey Statutes.

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

1. a. (1) Any person who communicates with or transmits an image via electronic means to any person for the purpose of committing, attempting to commit, conspiring to commit, or soliciting another person to commit any offense enumerated in paragraph (2) of subsection b. of N.J.S.2C:7-2 in which the victim or intended victim is, or the actor reasonably believes to be, less than 13 years of age, commits a crime of the fourth degree.

(2) Any person who communicates with or transmits an image via electronic means to any person for the purpose of committing, attempting to commit, conspiring to commit, or soliciting another person to commit any offense enumerated in paragraph (2) of subsection b. of N.J.S.2C:7-2 in which the victim or intended victim is, or the actor reasonably believes to be, at least 13 but less than 16 years old and at least four years younger than the actor, commits a crime of the fourth degree if the actor is or reasonably believes he is at least four years older than the victim or intended victim.

(3) For purposes of this section, “electronic means” includes, but is not limited to, the Internet, which shall have the meaning set forth in N.J.S.2C:24-4, or any electronic communication device. “Electronic communication device” means any device capable of transmitting information by wire, radio, optical cable, electromagnetic, or other similar means. “Electronic communication device” includes but is not limited to a computer or any other device with Internet capability, telephone, wireless phone or other wireless communications device, pager or electronic text messaging device.

b. A person convicted of a second or subsequent offense under this section or a person convicted under this section who has previously been convicted of a violation of any offense enumerated in paragraph (2) of subsection b. of N.J.S.2C:7-2 shall be guilty of a crime of the third degree and sentenced to a term of imprisonment. Notwithstanding the provisions of paragraph (2) of subsection a. of N.J.S.2C:43-6, the term of imprisonment shall include, unless the person is sentenced pursuant to the provisions of N.J.S.2C:43-7, a mandatory minimum term of three years, during which time the defendant shall not be eligible for parole. If the person is sentenced pursuant to N.J.S.2C:43-7, the court shall impose a minimum term of one-third to one-half of the sentence imposed, or five years, whichever is greater. The court may not suspend or make any other non-custodial disposition of any person sentenced as a second or subsequent offender pursuant to this section.

c. Nothing herein shall be deemed to preclude, if the evidence so warrants, an indictment and conviction for any other crime or offense.

d. Notwithstanding the provisions of N.J.S.2C:1-8 or any other law, a conviction under this section shall not merge with a conviction of any other criminal offense, nor shall such other conviction merge with a conviction under this section, and the court shall impose separate sentences upon each violation of this section and any other criminal offense. The court may not suspend or make any other non-custodial disposition of any person sentenced pursuant to this section.

e. (1) There shall be a permissive inference that a person 25 years of age or older who falsely represents his age as less than 25 years of age when communicating via electronic means with another person believes the other person to be less than 16 years of age.

(2) There shall be a permissive inference that a person who transmits to another person via electronic means an image of any kind depicting a prohibited sexual act as defined in paragraph (1) of subsection b. of N.J.S.2C:24-4 or a simulation thereof, including but not limited to a depiction of a cartoon or graphic character or characters engaged in a prohibited sexual act, acts with the purpose of committing, attempting to commit, conspiring to commit, or soliciting another person to commit an offense enumerated in paragraph (2) of subsection b. of N.J.S.2C:7-2.

(3) There shall be a permissive inference that a person who uses electronic means to promote obscene material in violation of subsection b. of N.J.S.2C:34-3 acted with the purpose of committing, attempting to commit, conspiring to commit, or soliciting another person to commit an offense enumerated in paragraph (2) of subsection b. of N.J.S.2C:7-2.

(4) There shall be a permissive inference that a person who directly or indirectly solicits a person under the age of 16 or who the actor reasonably believe to be under the age of 16 to engage in sexual activities, discuss sexual conduct or intimate parts as that term is defined in N.J.S.2C:14-1, or provide personal sexual information acted with the purpose of committing, attempting to commit, conspiring to commit, or soliciting another person to commit an offense enumerated in paragraph (2) of subsection b. of N.J.S.2C:7-2.

(5) There shall be a permissive inference that a person who directly or indirectly discusses sexual conduct or intimate parts as that term is defined in N.J.S.2C:14-1 with, or provides personal sexual information to a person under the age of 16 or who the actor reasonably believes to be under the age of 16 acted with the purpose of committing, attempting to commit, conspiring to commit, or soliciting another person to commit an offense enumerated in paragraph (2) of subsection b. of N.J.S.2C:7-2.

2. This act shall take effect immediately.

STATEMENT

This bill supplements Title 2C of the New Jersey Statutes to make it a crime of the fourth degree for any person to communicate with or transmit an image via electronic means to any person who the actor reasonably believes is less than 13 years of age or who is at least 13 but less than 16 years old and at least four years younger than the actor (if the actor is or reasonably believes he is at least four years older than the victim or intended victim) for the purpose of committing, attempting to commit, conspiring to commit, or soliciting another person to commit any offense enumerated in paragraph (2) of subsection b. of N.J.S.2C:7-2.

The enumerated crimes are: a conviction, adjudication of delinquency, or acquittal by reason of insanity for aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to N.J.S.2C:13-1; endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S.2C:24-4; endangering the welfare of a child pursuant to paragraph (3) or (4) or subparagraph (a) of paragraph (5) of subsection b. of N.J.S.2C:24-4; luring or enticing pursuant to section 1 of P.L.1993, c.291 (C.2C:13-6); criminal sexual contact pursuant to N.J.S.2C:14-3b. if the victim is a minor; kidnapping pursuant to N.J.S.2C:13-1; criminal restraint pursuant to N.J.S.2C:13-2, or false imprisonment pursuant to N.J.S.2C:13-3 if the victim is a minor and the offender is not the parent of the victim; knowingly promoting prostitution of a child pursuant to paragraph (3) or paragraph (4) of subsection b. of N.J.S.2C:34-1; or an attempt to commit any of these enumerated offenses.

Under the provisions of the bill, “electronic means” includes, but is not limited to, the Internet, which shall have the meaning set forth in N.J.S.2C:24-4, or any electronic communication device. The bill defines “electronic communication device” as any device capable of transmitting information by wire, radio, optical cable, electromagnetic, or other similar means. “Electronic communication device” includes but is not limited to a computer or any other device with Internet capability, telephone, wireless phone or other wireless communications device, pager or electronic text messaging device.

This bill provides that a person convicted of a second or subsequent offense would be guilty of a crime of the third degree and sentenced to a mandatory term of imprisonment of three years, during which time the defendant would not be eligible for parole.

In addition, this bill provides for the following permissive inferences:

(1) There shall be a permissive inference that a person 25 years of age or older who falsely represents his age as less than 25 years of age when communicating via electronic means with another person believes the other person to be less than 16 years of age.

This bill is part of the Attorney General’s initiative concerning Internet safety.