An Act concerning territorial jurisdiction and amending N.J.S.2C:24-4.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:24-4 is amended to read as follows:

2C:24-4. Endangering Welfare of Children.

a. (1) (a) Any person having a legal duty in this State for the care of a child or who has assumed responsibility in this State for the care of a child who engages in sexual conduct within or outside this State which would impair or debauch the morals of the child is guilty of a crime of the second degree. Any legal duty or assumption of responsibility which commenced in this State continues in any jurisdiction.

(b) Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.

(2) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and section 1 of P.L.1974, c.119 [, s.1] (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.

b. (1) As used in this subsection:

"Child" means any person under 18 years of age.

"Distribute" means to sell, or to manufacture, give, provide, lend, trade, mail, deliver, publish, circulate, disseminate, present, exhibit, display, share, advertise, offer, or make available via the Internet or by any other means, whether for pecuniary gain or not. The term also includes an agreement or attempt to distribute.

"File-sharing program" means a computer program, application, software or operating system that allows the user of a computer on which such program, application, software or operating system is installed to designate files as available for searching by and copying to one or more other computers, to transmit such designated files directly to one or more other computers, and to request the transmission of such designated files directly from one or more other computers. The term "file-sharing program" includes but is not limited to a computer program, application or software that enables a computer user to participate in a peer-to-peer network. "Internet" means the international computer network of both federal and non-federal interoperable packet switched data networks.

"Item depicting the sexual exploitation or abuse of a child" means a photograph, film, video, an electronic, electromagnetic or digital recording, an image stored or maintained in a computer program or file or in a portion of a file, or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act.

"Peer-to-peer network" means a connection of computer systems through which files are shared directly between the systems on a network without the need of a central server.

"Prohibited sexual act" means

(a) Sexual intercourse; or

(b) Anal intercourse; or

(d) Bestiality; or

(e) Sadism; or

(f) Masochism; or

(g) Fellatio; or

(h) Cunnilingus; or

(i) Nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction; or

(j) Any act of sexual penetration or sexual contact as defined in N.J.S.2C:14-1.

"Reproduction" means, but is not limited to, computer generated images.

(2) (Deleted by amendment, P.L.2001, c.291).

(3) A person commits a crime of the first degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance.

(4) A person commits a crime of the second degree if he photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act.

(5) (a) A person commits a crime of the second degree if, by any means, including but not limited to the Internet, he:

(i) knowingly distributes an item depicting the sexual exploitation or abuse of a child;

(ii) knowingly possesses an item depicting the sexual exploitation or abuse of a child with the intent to distribute that item; or

(iii) knowingly stores or maintains an item depicting the sexual exploitation or abuse of a child using a file-sharing program which is designated as available for searching by or copying to one or more other computers.

In a prosecution under sub-subparagraph (iii) of this subparagraph, the State shall not be required to offer proof that an item depicting the sexual exploitation or abuse of a child had actually been searched, copied, transmitted or viewed by another user of the file-sharing program, or by any other person, and it shall be no defense that the defendant did not intend to distribute the item to another user of the file-sharing program or to any other person. Nor shall the State be required to prove that the defendant was aware that the item depicting the sexual exploitation or abuse of a child was available for searching or copying to one or more other computers, and the defendant shall be strictly liable for failing to designate the item as not available for searching or copying by one or more other computers.

Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person whose offense under this subparagraph involved 25 or more items depicting the sexual exploitation or abuse of a child shall be sentenced to a mandatory minimum term of imprisonment, which shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall be ineligible for parole.

Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person convicted of a second or subsequent offense under this subparagraph shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7. For the purposes of this subparagraph, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to paragraph (3), (4) or (5) of this subsection, or under any similar statute of the United States, this State or any other state for an offense that is substantially equivalent to paragraph (3), (4) or (5) of this subsection.

For purposes of this subparagraph, the term "possess" includes receiving, viewing, or having under one's control, through any means, including the Internet.

(b) A person commits a crime of the third degree if he knowingly possesses, knowingly views, or knowingly has under his control, through any means, including the Internet, an item depicting the sexual exploitation or abuse of a child.

Notwithstanding the provisions of subsection e. of N.J.S.2C:44-1, in any instance where a person was convicted of an offense under this subparagraph that involved 100 or more items depicting the sexual exploitation or abuse of a child, the court shall impose a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that imprisonment would be a serious injustice which overrides the need to deter such conduct by others.

Nothing in this subparagraph shall be construed to preclude or limit any prosecution or conviction for the offense set forth in subparagraph (a) of this paragraph.

(6) For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of 18 in any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of 18. If the child who is depicted as engaging in, or who is caused to engage in, a prohibited sexual act or simulation of a prohibited sexual act is under the age of 18, the actor shall be strictly liable and it shall not be a defense that the actor did not know that the child was under the age of 18, nor shall it be a defense that the actor believed that the child was 18 years of age or older, even if such a mistaken belief was reasonable.

(7) For aggregation purposes, each depiction of the sexual exploitation or abuse of a child shall be considered a separate item, and each individual act of distribution of an item depicting the sexual exploitation or abuse of a child shall be considered a separate item. For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (a) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the act or acts constituting the violation occurred at the same time or at different times and, with respect to distribution, whether the act or acts of distribution were to the same person or several persons or occurred at different times, provided that each individual act was committed within the applicable statute of limitations. For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (b) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the possession of such items occurred at the same time or at different times, provided that each individual act was committed within the applicable statute of limitations.

(cf: P.L.2013, c.136, s.1)

2. This act shall take effect immediately.

STATEMENT

The bill would expand the jurisdiction of the statute concerning endangering the welfare of a child, N.J.S.2C:24-4. Under the bill, the statute would apply to situations where a person having a legal duty of care or having assumed responsibility for the care of a child in New Jersey engages in sexual conduct with that child in a jurisdiction other than New Jersey. Currently, N.J.S.2C:24-4 makes it a crime of the second degree if a person with the legal duty for the care of the child or who has assumed responsibility for the care of the child "engages in sexual conduct which would impair or debauch the morals of a child." A crime of the second degree is punishable by a term of imprisonment of five to 10 years, a fine of $150,000 or both.

This bill is in response to the recent case of State v. Sumulikoski and Sopel, 2015 N.J.LEXIS 276 (decided March 18, 2015) where the New Jersey Supreme Court held that New Jersey courts did not have jurisdiction to prosecute New Jersey school officials who were chaperones on a school trip to Germany and allegedly engaged in sexual conduct in Germany with students from the school.

By adding the proposed language to the statute, it is the sponsor's intent to make it clear that N.J.S.2C:24-4, endangering the welfare of a child, applies to sexual conduct with a child that takes place within and outside of New Jersey under these circumstances. Thus, this bill would confer jurisdiction to New Jersey courts in cases similar to the State v. Sumulikoski and Sopel case.

In addition, the bill is intended to be consistent with the provisions of N.J.S.2C:1-3 concerning territorial jurisdiction in criminal cases. The statute provides that a person may be convicted in New Jersey if "the offense is based on a statute of this State which expressly prohibits conduct outside of the State, when the conduct bears a reasonable relation to an interest of this State." (See: paragraph (6) of subsection a. of N.J.S.2C:1-3).

In the view of the sponsor, there can be no question that New Jersey has a significant interest in ensuring that children for whom an adult has assumed a duty or responsibility of care in New Jersey are subject to prosecution for unlawful sexual conduct, no matter where the sexual conduct occurs.