§ 750.145cDefinitions; child sexually abusive activity or material; penalties; possession of

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child sexually abusive material; expert testimony; defenses; acts of commercial film or
 photographic print processor; report to law enforcement agency by computer technician;
 reasonable availability of evidence to defendant; applicability and uniformity of section;
 enactment or enforcement of ordinance, rule, or regulation prohibited.
 Sec. 145c.
    (1) As used in this section:
    (a) "Access" means to intentionally cause to be viewed by or transmitted to a person.
    (b) "Appears to include a child" means that the depiction appears to include, or conveys the
 impression that it includes, a person who is less than 18 years of age, and the depiction meets
 either of the following conditions:
    (i) It was created using a depiction of any part of an actual person under the age of 18.
    (ii) It was not created using a depiction of any part of an actual person under the age of 18,
 but all of the following apply to that depiction:
    (A) The average individual, applying contemporary community standards, would find the
 depiction, taken as a whole, appeals to the prurient interest.
    (B) The reasonable person would find the depiction, taken as a whole, lacks serious literary,
 artistic, political, or scientific value.
    (C) The depiction depicts or describes a listed sexual act in a patently offensive way.
    (c) "Child" means a person who is less than 18 years of age, subject to the affirmative
 defense created in subsection (7) regarding persons emancipated by operation of law.
    (d) "Commercial film or photographic print processor" means a person or his or her
 employee who, for compensation, develops exposed photographic film into movie films,
 negatives, slides, or prints; makes prints from negatives or slides; or duplicates movie films or
 videotapes.
    (e) "Computer technician" means a person who installs, maintains, troubleshoots, upgrades,
 or repairs computer hardware, software, personal computer networks, or peripheral equipment.
    (f) "Contemporary community standards" means the customary limits of candor and
 decency in this state at or near the time of the alleged violation of this section.
    (g) "Erotic fondling" means touching a person's clothed or unclothed genitals, pubic area,
 buttocks, or, if the person is female, breasts, or if the person is a child, the developing or
 undeveloped breast area, for the purpose of real or simulated overt sexual gratification or
 stimulation of 1 or more of the persons involved. Erotic fondling does not include physical
 contact, even if affectionate, that is not for the purpose of real or simulated overt sexual
 gratification or stimulation of 1 or more of the persons involved.
    (h) "Erotic nudity" means the lascivious exhibition of the genital, pubic, or rectal area of
 any person. As used in this subdivision, "lascivious" means wanton, lewd, and lustful and
 tending to produce voluptuous or lewd emotions.
    (i) "Listed sexual act" means sexual intercourse, erotic fondling, sadomasochistic abuse,
 masturbation, passive sexual involvement, sexual excitement, or erotic nudity.



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    (j) "Make" means to bring into existence by copying, shaping, changing, or combining
 material, and specifically includes, but is not limited to, intentionally creating a reproduction,
 copy, or print of child sexually abusive material, in whole or part. Make does not include the
 creation of an identical reproduction or copy of child sexually abusive material within the
 same digital storage device or the same piece of digital storage media.
    (k) "Masturbation" means the real or simulated touching, rubbing, or otherwise stimulating
 of a person's own clothed or unclothed genitals, pubic area, buttocks, or, if the person is
 female, breasts, or if the person is a child, the developing or undeveloped breast area, either by
 manual manipulation or self-induced or with an artificial instrument, for the purpose of real or
 simulated overt sexual gratification or arousal of the person.
    (l) "Passive sexual involvement" means an act, real or simulated, that exposes another
 person to or draws another person's attention to an act of sexual intercourse, erotic fondling,
 sadomasochistic abuse, masturbation, sexual excitement, or erotic nudity because of viewing
 any of these acts or because of the proximity of the act to that person, for the purpose of real
 or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.
    (m) "Prurient interest" means a shameful or morbid interest in nudity, sex, or excretion.
    (n) "Child sexually abusive activity" means a child engaging in a listed sexual act.
    (o) "Child sexually abusive material" means any depiction, whether made or produced by
 electronic, mechanical, or other means, including a developed or undeveloped photograph,
 picture, film, slide, video, electronic visual image, computer diskette, computer or computer-
 generated image, or picture, or sound recording which is of a child or appears to include a
 child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or
 other visual or print or printable medium containing such a photograph, picture, film, slide,
 video, electronic visual image, computer, or computer-generated image, or picture, or sound
 recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video,
 electronic visual image, book, magazine, computer, or computer-generated image, or picture,
 other visual or print or printable medium, or sound recording.
    (p) "Sadomasochistic abuse" means either of the following:
    (i) Flagellation or torture, real or simulated, for the purpose of real or simulated sexual
 stimulation or gratification, by or upon a person.
    (ii) The condition, real or simulated, of being fettered, bound, or otherwise physically
 restrained for sexual stimulation or gratification of a person.
    (q) "Sexual excitement" means the condition, real or simulated, of human male or female
 genitals in a state of real or simulated overt sexual stimulation or arousal.
    (r) "Sexual intercourse" means intercourse, real or simulated, whether genital-genital, oral-
 genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or
 between a human and an animal, or with an artificial genital.
    (2) A person who persuades, induces, entices, coerces, causes, or knowingly allows a child
 to engage in a child sexually abusive activity for the purpose of producing any child sexually
 abusive material, or a person who arranges for, produces, makes, copies, reproduces, or
 finances, or a person who attempts or prepares or conspires to arrange for, produce, make,
 copy, reproduce, or finance any child sexually abusive activity or child sexually abusive
 material for personal, distributional, or other purposes if that person knows, has reason to
 know, or should reasonably be expected to know that the child is a child or that the child
 sexually abusive material includes a child or that the depiction constituting the child sexually
 abusive material appears to include a child, or that person has not taken reasonable precautions
 to determine the age of the child is guilty of a crime as follows:




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    (a) Except as provided in subdivision (b), the person is guilty of a felony punishable by
 imprisonment for not more than 20 years or a fine of not more than $100,000.00, or both.
    (b) If the child sexually abusive activity or child sexually abusive material involves a
 prepubescent child, sadomasochistic abuse or bestiality, or includes a video or more than 100
 images of child sexually abusive material, the person is guilty of a felony punishable by
 imprisonment for not more than 25 years or a fine of not more than $125,000.00, or both.
    (3) Except as provided in subsection (14), a person who distributes or promotes, or finances
 the distribution or promotion of, or receives for the purpose of distributing or promoting, or
 conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually
 abusive material or child sexually abusive activity if that person knows, has reason to know, or
 should reasonably be expected to know that the child is a child or that the child sexually
 abusive material includes a child or that the depiction constituting the child sexually abusive
 material appears to include a child, or that person has not taken reasonable precautions to
 determine the age of the child is guilty of a crime as follows:
    (a) Except as provided in subdivision (b), the person is guilty of a felony punishable by
 imprisonment for not more than 7 years or a fine of not more than $50,000.00, or both.
    (b) If the child sexually abusive activity or child sexually abusive material involves a
 prepubescent child, sadomasochistic abuse or bestiality, or includes a video or more than 100
 images of child sexually abusive material, the person is guilty of a felony punishable by
 imprisonment for not more than 15 years or a fine of not more than $75,000.00, or both.
    (4) A person who knowingly possesses or knowingly seeks and accesses any child sexually
 abusive material if that person knows, has reason to know, or should reasonably be expected to
 know the child is a child or that the child sexually abusive material includes a child or that the
 depiction constituting the child sexually abusive material appears to include a child, or that
 person has not taken reasonable precautions to determine the age of the child is guilty of a
 crime as follows:
    (a) Except as provided in subdivision (b) and section 145g, the person is guilty of a felony
 punishable by imprisonment for not more than 4 years or a fine of not more than $10,000.00,
 or both.
    (b) If the child sexually abusive activity or child sexually abusive material involves a
 prepubescent child, sadomasochistic abuse or bestiality, or includes a video or more than 100
 images of child sexually abusive material, the person is guilty of a felony punishable by
 imprisonment for not more than 10 years or a fine of not more than $50,000.00, or both.
    (5) Subsection (4) does not apply to any of the following:
    (a) A person described in section 7 of 1984 PA 343, MCL 752.367, a commercial film or
 photographic print processor acting under subsection (9), or a computer technician acting
 under subsection (10).
    (b) A police officer acting within the scope of his or her duties as a police officer.
    (c) An employee or contract agent of the department of health and human services acting
 within the scope of his or her duties as an employee or contract agent.
    (d) A judicial officer or judicial employee acting within the scope of his or her duties as a
 judicial officer or judicial employee.
    (e) A party or witness in a criminal or civil proceeding acting within the scope of that
 criminal or civil proceeding.
    (f) A physician, psychologist, limited license psychologist, professional counselor, or
 registered nurse licensed under the public health code, 1978 PA 368, MCL 333.1101 to
 333.25211, acting within the scope of practice for which he or she is licensed.




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    (g) A social worker registered in this state under article 15 of the public health code, 1978
 PA 368, MCL 333.16101 to 333.18838, acting within the scope of practice for which he or she
 is registered.
    (6) Expert testimony as to the age of the child used in a child sexually abusive material or a
 child sexually abusive activity is admissible as evidence in court and may be a legitimate basis
 for determining age, if age is not otherwise proven.
    (7) It is an affirmative defense to a prosecution under this section that the alleged child is a
 person who is emancipated by operation of law under section 4(2) of 1968 PA 293, MCL
 722.4, as proven by a preponderance of the evidence.
    (8) If a defendant in a prosecution under this section proposes to offer in his or her defense
 evidence to establish that a depiction that appears to include a child was not, in fact, created
 using a depiction of any part of an actual person under the age of 18, the defendant shall at the
 time of the arraignment on the information or within 15 days after arraignment but not less
 than 10 days before the trial of the case, or at such other time as the court directs, file and
 serve upon the prosecuting attorney of record a notice in writing of his or her intention to offer
 that defense. The notice must contain, as particularly as is known to the defendant or the
 defendant's attorney, the names of witnesses to be called on behalf of the defendant to
 establish that defense. The defendant's notice must include specific information as to the facts
 that establish that the depiction was not, in fact, created using a depiction of any part of an
 actual person under the age of 18. Failure to file a timely notice in conformance with this
 subsection precludes a defendant from offering this defense.
    (9) If a commercial film or photographic print processor reports to a law enforcement
 agency having jurisdiction his or her knowledge or observation, within the scope of his or her
 professional capacity or employment, of a film, photograph, movie film, videotape, negative,
 or slide depicting a person that the processor has reason to know or reason to believe is a child
 engaged in a listed sexual act; furnishes a copy of the film, photograph, movie film, videotape,
 negative, or slide to a law enforcement agency having jurisdiction; or keeps the film,
 photograph, movie film, videotape, negative, or slide according to the law enforcement
 agency's instructions, both of the following apply:
    (a) The identity of the processor must be confidential, subject to disclosure only with his or
 her consent or by judicial process.
    (b) If the processor acted in good faith, he or she is immune from civil liability that might
 otherwise be incurred by his or her actions. This immunity extends only to acts described in
 this subsection.
    (10) If a computer technician reports to a law enforcement agency having jurisdiction his or
 her knowledge or observation, within the scope of his or her professional capacity or
 employment, of an electronic visual image, computer-generated image or picture or sound
 recording depicting a person that the computer technician has reason to know or reason to
 believe is a child engaged in a listed sexual act; furnishes a copy of that image, picture, or
 sound recording to the law enforcement agency; or keeps the image, picture, or sound
 recording according to the law enforcement agency's instructions, both of the following apply:
    (a) The identity of the computer technician must be confidential, subject to disclosure only
 with his or her consent or by judicial process.
    (b) If the computer technician acted in good faith, he or she is immune from civil liability
 that might otherwise be incurred by his or her actions. This immunity extends only to acts
 described in this subsection.
    (11) In any criminal proceeding regarding an alleged violation or attempted violation of this
 section, the court shall deny any request by the defendant to copy, photograph, duplicate, or


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 otherwise reproduce any photographic or other pictorial evidence of a child engaging in a
 listed sexual act if the prosecuting attorney makes that evidence reasonably available to the
 defendant. Evidence is considered to be reasonably available to the defendant under this
 subsection if the prosecuting attorney provides an opportunity to the defendant and his or her
 attorney, and any person the defendant may seek to qualify as an expert witness at trial, to
 inspect, view, and examine that evidence at a facility approved by the prosecuting attorney.
    (12) This section applies uniformly throughout the state and all political subdivisions and
 municipalities in the state.
    (13) A local municipality or political subdivision shall not enact any ordinance or enforce
 any existing ordinance, rule, or regulation governing child sexually abusive activity or child
 sexually abusive material.
    (14) Subsection (3) does not apply to the persons described in section 7 of 1984 PA 343,
 MCL 752.367.

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