Sec. B-1. 17 MRSA c. 93-B, as amended, is repealed.
Sec. B-2. 17-A MRSA §253, sub-§1, as amended by PL 2001, c. 383, §14 and affected by §156, is further amended to read:
1. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and:
A. The other person submits as a result of compulsion, as defined in section 251, subsection 1, paragraph E. Violation of this paragraph is a Class A crime; or
B. The other person, not the actor's spouse, has not in fact attained the age of 14 years. Violation of this paragraph is a Class A crime.; or
C. The other person, not the actor's spouse, has not in fact attained 12 years of age. Violation of this paragraph is a Class A crime.
Sec. B-3. 17-A MRSA §255-A, sub-§1, ¶¶E-1 and F-1 are enacted to read:
E-1. The other person, not the actor's spouse, is in fact less than 12 years of age and the actor is at least 3 years older. Violation of this paragraph is a Class B crime;
F-1. The other person, not the actor's spouse, is in fact less than 12 years of age and the actor is at least 3 years older and the sexual contact includes penetration. Violation of this paragraph is a Class A crime;
Sec. B-4. 17-A MRSA §256, as enacted by PL 1995, c. 72, §1, is repealed and the following enacted in its place:
§256. Visual sexual aggression against child
1. A person is guilty of visual sexual aggression against a child if:
A. For the purpose of arousing or gratifying sexual desire or for the purpose of causing affront or alarm, the actor, having in fact attained 18 years of age, exposes the actor's genitals to another person or causes the other person to expose that person's genitals to the actor and the other person, not the actor's spouse, has not in fact attained 14 years of age. Violation of this paragraph is a Class D crime; or
B. For the purpose of arousing or gratifying sexual desire, the actor, having in fact attained 18 years of age, exposes the actor's genitals to another person or causes the other person to expose that person's genitals to the actor and the other person, not the actor's spouse, has not in fact attained 12 years of age. Violation of this paragraph is a Class C crime.
Sec. B-5. 17-A MRSA §258, sub-§1, as enacted by PL 1997, c. 143, §1, is amended to read:
1. A person is guilty of sexual misconduct with a child under 14 years of age if that person, having in fact attained 18 years of age, knowingly displays any sexually explicit materials to another person, not the actor's spouse, who has not in fact attained the age of 14 years, with the intent to encourage the other person to engage in a sexual act or sexual contact. Violation of this subsection is a Class D crime.
Sec. B-6. 17-A MRSA §258, sub-§1-A is enacted to read:
1-A. A person is guilty of sexual misconduct with a child under 12 years of age if that person, having in fact attained 18 years of age, knowingly displays any sexually explicit materials to another person, not the actor's spouse, who has not in fact attained 12 years of age, with the intent to encourage the other person to engage in a sexual act or sexual contact. Violation of this subsection is a Class C crime.
Sec. B-7. 17-A MRSA §258, sub-§2, as enacted by PL 1997, c. 143, §1, is amended to read:
2. As used in this section, "sexually explicit materials" means any book, magazine, print, negative, slide, motion picture, videotape or other mechanically reproduced visual material that the person knows or should know depicts a person, minor or adult, engaging in sexually explicit conduct, as that term is defined in Title 17, section 2921, subsection 5 281.
Sec. B-8. 17-A MRSA §258, sub-§3, as enacted by PL 1997, c. 143, §1, is repealed.
Sec. B-9. 17-A MRSA §259, sub-§1-A, as enacted by PL 2001, c. 383, §25 and affected by §156, is amended to read:
1-A. A person is guilty of soliciting a child by a computer to commit a prohibited act if:
A. The actor:
(1) Uses a computer knowingly to solicit, entice, persuade or compel another person to meet with the actor;
(2) Is at least 16 years of age;
(3) Knows or believes that the other person is less than 14 years of age; and
(4) Is at least 3 years older than the expressed age of the other person; and
B. The actor has the intent to engage in any one of the following prohibited acts with the other person:
(1) A sexual act as defined in section 251, subsection 1, paragraph C;
(2) Sexual contact as defined in section 251, subsection 1, paragraph D; or
(3) Sexual exploitation of a minor pursuant to Title 17, section 2922 282.
Violation of this subsection is a Class D crime.
Sec. B-10. 17-A MRSA §259, sub-§1-B is enacted to read:
1-B. A person is guilty of soliciting a child by a computer to commit a prohibited act if:
A. The actor:
(1) Uses a computer knowingly to solicit, entice, persuade or compel another person to meet with the actor;
(2) Is at least 16 years of age;
(3) Knows or believes that the other person is less than 12 years of age; and
(4) Is at least 3 years older than the expressed age of the other person; and
B. The actor has the intent to engage in any one of the following prohibited acts with the other person:
(1) A sexual act;
(2) Sexual contact; or
(3) Sexual exploitation of a minor pursuant to section 282.
Violation of this subsection is a Class C crime.
Sec. B-11. 17-A MRSA §259, sub-§3, as enacted by PL 1999, c. 349, §3, is repealed.
Sec. B-12. 17-A MRSA c. 12 is enacted to read:
CHAPTER 12
SEXUAL EXPLOITATION OF MINORS
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
1. "Disseminate" means to manufacture, publish, send, promulgate, distribute, exhibit, issue, furnish, sell or transfer or to offer or agree to do any of these acts.
2. "Minor" means a person who has not attained 18 years of age.
3. "Photograph" means to make, capture, generate or save a print, negative, slide, motion picture, computer data file, videotape or other mechanically, electronically or chemically reproduced visual image or material.
4. "Sexually explicit conduct" means any of the following acts:
A. A sexual act;
B. Bestiality;
C. Masturbation;
D. Sadomasochistic abuse for the purpose of sexual stimulation;
E. Lewd exhibition of the genitals, anus or pubic area of a person. An exhibition is considered lewd if the exhibition is designed for the purpose of eliciting or attempting to elicit a sexual response in the intended viewer; or
F. Conduct that creates the appearance of the acts in paragraphs A to D and also exhibits any uncovered or covered portions of the genitals, anus or pubic area.
§282. Sexual exploitation of minor
1. A person is guilty of sexual exploitation of a minor if:
A. Knowing or intending that the conduct will be photographed, the person intentionally or knowingly employs, solicits, entices, persuades, uses or compels another person, not that person's spouse, who is in fact a minor, to engage in sexually explicit conduct. Violation of this paragraph is a Class B crime;
B. The person violates paragraph A and, at the time of the offense, has one or more prior convictions for violating this section. Violation of this paragraph is a Class A crime;
C. The person violates paragraph A and the minor has not in fact attained 12 years of age. Violation of this paragraph is a Class A crime;
D. Being a parent, legal guardian or other person having care or custody of another person who is in fact a minor, that person knowingly or intentionally permits that minor to engage in sexually explicit conduct, knowing or intending that the conduct will be photographed. Violation of this paragraph is a Class B crime;
E. The person violates paragraph D and, at the time of the offense, the person has one or more prior convictions for violating this section. Violation of this paragraph is a Class A crime; or
F. The person violates paragraph D and the minor has not in fact attained 12 years of age. Violation of this paragraph is a Class A crime.
2. The following mandatory minimum terms of imprisonment apply to sexual exploitation of a minor.
A. A court shall impose upon a person convicted under subsection 1, paragraph A or D a sentencing alternative involving a term of imprisonment of at least 5 years.
B. A court shall impose upon a person convicted under subsection 1, paragraph B or E a sentencing alternative involving a term of imprisonment of at least 10 years.
The court may not suspend a minimum term of imprisonment imposed under this section unless it sets forth in detail, in writing, the reasons for suspending the sentence. The court shall consider the nature and circumstances of the crime, the physical and mental well-being of the minor and the history and character of the defendant and may only suspend the minimum term if the court is of the opinion that the exceptional features of the case justify the imposition of another sentence. Section 9-A governs the use of prior convictions when determining a sentence.
§283. Dissemination of sexually explicit material
1. A person is guilty of dissemination of sexually explicit material if:
A. The person intentionally or knowingly disseminates or possesses with intent to disseminate any book, magazine, newspaper, print, negative, slide, motion picture, videotape, computer data file or other mechanically, electronically or chemically reproduced visual image or material that depicts any minor who the person knows or has reason to know is a minor engaging in sexually explicit conduct. Violation of this paragraph is a Class C crime;
B. The person violates paragraph A and, at the time of the offense, has one or more prior convictions for violating this section. Violation of this paragraph is a Class B crime;
C. The person intentionally or knowingly disseminates or possesses with intent to disseminate any book, magazine, newspaper, print, negative, slide, motion picture, videotape, computer data file or other mechanically, electronically or chemically reproduced visual image or material that depicts any minor who is less than 12 years of age who the person knows or has reason to know is a minor less than 12 years of age engaging in sexually explicit conduct. Violation of this paragraph is a Class B crime; or
D. The person violates paragraph C and, at the time of the offense, has one or more prior convictions for violating this section. Violation of this paragraph is a Class A crime.
Section 9-A governs the use of prior convictions when determining a sentence.
2. For the purposes of this section, possession of 10 or more copies of any of the materials as described in subsection 1 gives rise to a permissible inference under the Maine Rules of Evidence, Rule 303 that the person possesses those items with intent to disseminate.
§284. Possession of sexually explicit material
1. A person is guilty of possession of sexually explicit material if that person:
A. Intentionally or knowingly transports, exhibits, purchases or possesses any book, magazine, newspaper, print, negative, slide, motion picture, computer data file, videotape or other mechanically, electronically or chemically reproduced visual image or material that the person knows or should know depicts another person engaging in sexually explicit conduct, and:
(1) The other person has not in fact attained 14 years of age; or
(2) The person knows or has reason to know that the other person has not attained 14 years of age;
Violation of this paragraph is a Class D crime;
B. Violates paragraph A and, at the time of the offense, has one or more prior convictions for violating this section. Violation of this paragraph is a Class C crime;
C. Intentionally or knowingly transports, exhibits, purchases or possesses any book, magazine, newspaper, print, negative, slide, motion picture, computer data file, videotape or other mechanically, electronically or chemically reproduced visual image or material that the person knows or should know depicts another person engaging in sexually explicit conduct, and:
(1) The other person has not in fact attained 12 years of age; or
(2) The person knows or has reason to know that the other person has not attained 12 years of age.
Violation of this paragraph is a Class C crime; or
D. Violates paragraph C and, at the time of the offense, has one or more prior convictions for violating this section. Violation of this paragraph is a Class B crime.
Section 9-A governs the use of prior convictions when determining a sentence.
2. It is a defense to a prosecution under this section that the person depicted was the spouse of the person possessing the sexually explicit material at the time the material was produced.
3. The age of the person depicted may be reasonably inferred from the depiction. Competent medical evidence or other expert testimony may be used to establish the age of the person depicted.
4. Any material that depicts a person who has not attained 14 years of age engaging in sexually explicit conduct is declared to be contraband and may be seized by the State.
§285. Forfeiture of equipment used to facilitate violations
1. Upon a finding of guilt of any violation of this chapter, but prior to sentencing, an attorney for the State may, in writing, move the court for an order requiring the forfeiture to the State of any equipment, including computers, that may have facilitated the commission of the offense. Notice of the motion must be made by the State to the defendant and any party of interest; this notice must be done by registered mail.
2. If contesting the forfeiture, the defendant or other party-in-interest in the in rem civil forfeiture proceeding may request a jury trial. Absent that request, the proceeding must be before the court.
3. At the jury trial or court hearing, the State has the burden of proving to the fact finder by a preponderance of the evidence that the equipment was used in violation of this chapter.
4. Upon a finding by a preponderance of the evidence that the equipment was used to facilitate the commission of a violation of this chapter, the court shall order the equipment forfeited and may, upon the written recommendation of the attorney for the State, provide in its order for the disposition or use of the equipment by any state, county or municipal law enforcement agency that made a substantial contribution to the investigation or prosecution of the case. Any equipment forfeited that is not transferred to an investigating or prosecuting agency must be sold and the proceeds deposited in the General Fund.
5. The Attorney General may adopt by rule guidelines regulating the disposition and use of property forfeited or sought for forfeiture under this section. Rules adopted under this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. B-13. 17-A MRSA §1152, sub-§2-C, as amended by PL 2001, c. 439, Pt. OOO, §2, is further amended to read:
2-C. As part of At the time the court imposes a sentence, the court shall order every natural person who is a convicted sex offender or sexually violent predator, of a sex offense or a sexually violent offense as defined under Title 34-A, section 11203 to satisfy all requirements set forth in the Sex Offender Registration and Notification Act of 1999.
Sec. B-14. 17-A MRSA §1202, sub-§1-A, ¶A, as enacted by PL 1999, c. 788, §2, is repealed and the following enacted in its place:
A. If the State pleads and proves that at the time of the crime the victim had not attained 12 years of age, the period of probation for a person convicted under chapter 11 or 12 may not exceed:
(1) Eighteen years for a Class A crime;
(2) Twelve years for a Class B crime; and
(3) Six years for a Class C crime;
Sec. B-15. 17-A MRSA §1202, sub-§1-A, ¶B, as enacted by PL 1999, c. 788, §2, is amended to read:
B. The period of probation for a person sentenced as a dangerous repeat sexual assault offender pursuant to section 1252, subsection 4-B is any term of years.; and
Sec. B-16. 17-A MRSA §1202, sub-§1-A, ¶C is enacted to read:
C. In the case of a crime of gross sexual assault, if the State pleads and proves that at the time of the crime the victim had not attained 12 years of age and that the defendant has previously been convicted and sentenced for committing gross sexual assault, rape or gross sexual misconduct against a victim who had not attained 12 years of age, the period of probation may be life or any term of years. In addition to any conditions imposed under section 1204, the court shall attach as a condition of probation that the convicted person participate in counseling or treatment to the satisfaction of the probation officer.
Sec. B-17. 17-A MRSA §1203, sub-§1-A, ¶B, as enacted by PL 1999, c. 788, §4, is amended to read:
B. The court may revoke probation if, during the initial unsuspended portion of the term of imprisonment, a person sentenced as a dangerous repeat sexual assault offender, pursuant to section 1252, subsection 4-B, refuses to actively participate in a sex offender treatment program in accordance with the expectations and judgment of the treatment providers, when requested to do so by the Department of Corrections.
Sec. B-18. 17-A MRSA §1231, sub-§2, ¶A, as enacted by PL 1999, c. 788, §7, is amended to read:
A. Any period of years for a person sentenced as a dangerous repeat sexual assault offender pursuant to section 1252, subsection 4-B; and
Sec. B-19. 17-A MRSA §1252, sub-§4-B, as enacted by PL 1999, c. 788, §8, is amended to read:
4-B. If the State pleads and proves that the defendant is a dangerous repeat sexual assault offender, the court, notwithstanding subsection 2, may set a definite period of imprisonment for any term of years.
A. As used in this section, "dangerous repeat sexual assault offender" means a person who commits a new gross sexual assault after having been convicted previously and sentenced for any of the following:
(1) Gross sexual assault, formerly denominated as gross sexual misconduct;
(2) Rape;
(3) Attempted murder accompanied by sexual assault;
(4) Murder accompanied by sexual assault; or
(5) Conduct substantially similar to a crime listed in subparagraph (1), (2), (3) or (4) that is a crime under the laws of the United States or any other state.
The date of sentencing is the date of the oral pronouncement of the sentence by the trial court, even if an appeal is taken.
B. "Accompanied by sexual assault" as used with respect to attempted murder, murder and crimes involving substantially similar conduct in other jurisdictions is satisfied if the sentencing court at the time of sentence imposition makes such a finding.
Sec. B-20. 17-A MRSA §1252, sub-§§4-C and 4-D are enacted to read:
4-C. If the State pleads and proves that a Class A crime of gross sexual assault was committed by a person who had previously been convicted and sentenced for a Class B or Class C crime of unlawful sexual contact, or an essentially similar crime in another jurisdiction, that prior conviction must be given serious consideration by the court in exercising its sentencing discretion.
4-D. If the State pleads and proves that a crime under section 253, subsection 1, paragraph C or under section 282, subsection 1, paragraph C or F was committed against a person who had not attained 12 years of age at the time of the offense, the age of the victim must be given serious consideration by the court in exercising its sentencing discretion.
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