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2006 SESSION

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062472340
HOUSE BILL NO. 1031 AMENDMENT IN THE NATURE OF A SUBSTITUTE (Proposed by the House Committee for Courts of Justice on February 6, 2006) (Patrons Prior to Substitute--Delegates Hurt and Gilbert [HB 1310]) A BILL to amend and reenact § 18.2-374.1:1 of the Code of Virginia, relating to possession of child pornography; penalty.

Be it enacted by the General Assembly of Virginia:

1.  That § 18.2-374.1:1 of the Code of Virginia is amended and reenacted as follows:

§ 18.2-374.1:1. Possession of child pornography; penalty.

A. Any person who knowingly possesses any sexually explicit visual material utilizing or having as a subject a person less than 18 years of age shall be guilty of a Class 6 felony. However, no prosecution for possession of material prohibited by this section shall lie where the prohibited material comes into the possession of the person charged from a law-enforcement officer or law-enforcement agency.

B. The provisions of this section shall not apply to any such material which is possessed for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial or other proper purpose by a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, attorney, judge, or other person having a proper interest in the material.

C. All sexually explicit visual material which utilizes or has as a subject a person less than 18 years of age shall be subject to lawful seizure and forfeiture pursuant to § 19.2-386.31.

D. Any person convicted of a second or subsequent offense under this section shall be guilty of a Class 5 felony.

E. In a prosecution under this section, the trier of fact may infer that a participant in sexually explicit visual material, whom the material through its title, text, visual representations, or otherwise, represents or depicts as being a person less than 18 years of age is under 18 years of age, provided the totality of the facts and circumstances warrants drawing such an inference.

F. The provisions of this section shall be severable, and if any of its provisions shall be held unconstitutional by a court of competent jurisdiction, then the decision of such court shall not affect or impair any of the remaining provisions.

2.  That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice.