By Shaffer & Engle Law Offices, LLC posted in Sex Crimes on Monday, February 25, 2013
Despite its title, 'sexual abuse of children' does not necessarily imply that any physical touching occurred.
By ** Attorney Elisabeth K.H. Pasqualini**, Sexual Offense Defense Lawyer, Harrisburg, PA
Despite the title of the offense in the PA Crimes Code, 'Sexual Abuse' need not be any type of actual touching, offensive use of objects, or what one would normally think of as rape or molestation. Rather, "Sexual Abuse of Children" envisions a wider variety of photographing and disseminating child pornography. The statute provides as follows:
18 Pa.C.S.A. § 6312- Sexual abuse of children
(b) Photographing, videotaping, depicting on computer or filming sexual acts.-- Any person who causes or knowingly permits a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act is guilty of a felony of the second degree if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed. Any person who knowingly photographs, videotapes, depicts on computer or films a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act is guilty of a felony of the second degree.
(c) Dissemination of photographs, videotapes, computer depictions and films.-- (1) Any person who knowingly sells, distributes, delivers, disseminates, transfers, displays or exhibits to others, or who possesses for the purpose of sale, distribution, delivery, dissemination, transfer, display or exhibition to others, any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense. (2) A first offense under this subsection is a felony of the third degree, and a second or subsequent offense under this subsection is a felony of the second degree.
There is legislation proposed legislation that would provide enhancements for multiple offenses:
2013 Pennsylvania House Bill No. 321; February 12, 2013
§ 6312. Sexual abuse of children. * * * (d.1) Multiple offenses.--A person who at the time of sentencing has been convicted of another offense under this section shall be sentenced to the penalties associated with second or subsequent violations of this section. For purposes of this subsection, a person shall be deemed to have been convicted of another offense under this section whether or not judgment of sentence has been imposed for that violation.
Note that dissemination is a critical issue
The legislature did not intend to include purely personal use of pornographic material within the purview of the statute, but it did intend to include all other interpersonal use; thus, noncommercial trading or exchange of such pornographic material falls within the coverage of the statute. Com. v. McCue, 338 Pa. Super. 117, 487 A.2d 880 (1985).