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REFERENCE TITLE: sexual exploitation; children; classification |
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State of Arizona House of Representatives Fiftieth Legislature First Regular Session 2011
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HB 2647 |
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Introduced by Representatives Ash: Court
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AN ACT
amending section 13-3553, Arizona Revised Statutes; relating to sexual exploitation of children.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-3553, Arizona Revised Statutes, is amended to read:
13-3553. Sexual exploitation of a minor; evidence; classification; definition
A. A person commits sexual exploitation of a minor by knowingly:
1. Recording, filming, photographing, developing, or duplicating exhibiting, selling or distributing any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.
2. Distributing, Transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing, duplicating or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.
B. If any visual depiction of sexual exploitation of a minor is admitted into evidence, the court shall seal that evidence at the conclusion of any grand jury proceeding, hearing or trial.
C. A violation of subsection A, paragraph 2 of this section that involves multiple visual depictions on the same occasion and that is solely for personal use is one violation.
C. D. Sexual exploitation of a minor A violation of:
1. Subsection A, paragraph 1 of this section is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13‑705 as a dangerous crime against children.
2. Subsection A, paragraph 2 of this section is a class 2 felony and if the minor is under fifteen years of age it is punishable as a dangerous crime against children, except that if the offense was committed solely for personal use, it is a class 6 felony. If the person commits a violation of subsection A, paragraph 2 of this section, the offense was committed solely for personal use and the person was previously convicted of an offense listed in chapter 14 or 35.1 of this title for which the person was required to register pursuant to section 13-3821, it is a class 2 felony.
E. For the purposes of this section, "personal use" means transporting, receiving, purchasing, electronically transmitting, possessing or duplicating any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct for the person's exclusive personal viewing.
Sec. 2. Disproportionality review; eligibility; hearing; commutation; delayed repeal
A. The board of executive clemency shall conduct a disproportionality review of inmates who are incarcerated under the jurisdiction of the state department of corrections and who meet all of the following initial eligibility requirements:
1. The inmate was sentenced for a violation of section 13-3553, Arizona Revised Statutes, that was committed on or after May 16, 1985.
2. The inmate was sentenced and convicted after a trial.
3. The inmate was not convicted of a serious offense as defined in section 13‑706, Arizona Revised Statutes, has no historical prior felony convictions and was given mandatory consecutive sentences of at least ten years.
4. The board of executive clemency has not previously denied the inmate a disproportionality review.
5. The inmate applies for a disproportionality review within ninety days after notice from the state department of corrections as prescribed by subsection B of this section is posted, mailed or broadcast. The application shall state that the inmate meets the eligibility requirements for review prescribed by this section.
B. The state department of corrections shall establish a procedure for providing notice to inmates of the eligibility requirements for disproportionality review and of the ninety day application deadline prescribed by subsection A of this section. The state department of corrections shall provide the notice prescribed by this subsection within one hundred twenty days after the effective date of this section.
C. If two members of the board constitute a quorum pursuant to section 31‑401, subsection I, Arizona Revised Statutes, and the two members do not concur on the action under consideration, the chairman of the board, if he is not one of the members who constituted the quorum and after review of the information considered by the two members, shall cast the deciding vote. If the chairman of the board is one of the two members constituting a quorum at a hearing and there is not concurrence on the action under consideration, no action shall be taken and the matter shall be heard before the board at which a majority of the full board is present.
D. After a hearing for which the victim, prosecutor and sentencing judge are given notice and an opportunity to be heard, the board of executive clemency shall recommend commutation or reduction of sentence to the governor if the board determines that an eligible applicant meets both of the following standards:
1. The sentence imposed is clearly excessive given the nature of the offense, the record of the offender and the sentence imposed on similarly situated offenders. In determining if a sentence is clearly excessive, the board shall consider among other criteria whether an eligible inmate would have been subject to a substantially different sentence of imprisonment under section 13-3553, Arizona Revised Statutes, as amended by section 1 of this act.
2. A substantial probability exists that if the offender is released, the offender will conform his conduct to the requirements of the law.
E. If the board of executive clemency members present and voting unanimously recommend commutation and the governor fails to act on that recommendation within ninety days after receiving the recommendation, the recommendation for commutation automatically becomes effective.
F. An inmate may not appeal a decision by the board of executive clemency pursuant to this section.
G. The board of executive clemency shall complete all disproportionality reviews by December 31, 2012.
H. This section is repealed from and after June 30, 2013.