MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session June 13, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:30 a.m., on Tuesday, June 13, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee GUEST LEGISLATORS PRESENT: Assemblyman Jack D. Close STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Russell J. Shoemaker, Sergeant, Sexual Assault Detail, Las Vegas Metropolitan Police Department (METRO) Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association Janine Hansen, Lobbyist, President, Nevada Eagle Forum Sheila Ward, Lobbyist, Carson/Douglas Christian Coalition Lucille Lusk, Lobbyist, Nevada Concerned Citizens Stan Olsen, Lobbyist, Las Vegas Metropolitan Police Department (METRO) Carlos Concha, Acting Deputy Chief, Division of Parole and Probation Joseph K. Evers, Director, Detention Facilities, Las Vegas Metropolitan Police Department (METRO) Laurel Stadler, Lobbyist, Mothers Against Drunk Driving (MADD), Lyon County Chapter ASSEMBLY BILL 405: Revises provisions prohibiting sexual exploitation of children. The chairman called Assemblyman Jack D. Close to the witness table to explain his bill. Mr. Close spoke to the committee offering them a copy of a prepared statement (Exhibit C). He explained the bill originated from a problem that arose in a Las Vegas water park and swimming pool: the unauthorized and exploitative photographing of young children. These photographs were reproduced in such a way as to be pornographic, he reported. The bill is to address this situation. SENATE BILL 192: Makes various changes related to provisions pertaining to sexual deviants. The assemblyman explained the bill is not intended to prohibit a parent from photographing their naked infant on the bear skin rug. These prohibitions are against photos made with an intent to arouse the prurient interests of the viewer, he said. This situation was clarified during the hearings held in the Assembly, he told, and a language change was made to the original draft to that effect. Senator James asked what the original language of the bill was. Mr. Close told him that on page 2, lines 6 and 7 included the wording, "...sexual portrayal means the lewd and lascivious depiction of the genitals or pubic area, whether clothed or not." The assemblyman opined that Assembly Bill (A.B.) 405, in combination with Senate Bill (S.B.) 192, will provide a means of dealing with sexual exploitation of children. He encoraged the committee to support he bill. Mr. Close explained the situation is difficult to deal with, especially if viewing the videos that are produced. He told the committee he had viewed some of the materials provided by the Las Vegas Metropolitan Police Department (METRO) in an attempt to become more educated about the subject. There were videos which would not come under the bill, including a video of a backyard barbeque held at a nudist colony. These pictures, he explained were not lewd in any way and could not be made to seem so. However, another video he viewed was a portion of the one produced with the pictures taken at the water park. These were clearly intended to focus on the genitals of the child for lewd purposes. These two films provided him with a good example of how videos of similar subject matter can be very different in their intent. Sometimes, however, it is difficult for the courts to make such determinations, and the wording, "...appeals to the prurient interest in sex," was an attempt to make this distinction more clear. Senator James asked if there was an objective standard to be applied in the bill. He wondered what the objective standard would be for "appeals to the prurient interest in sex?" Mr. Close asked to have one of the law enforcement officers respond to that question. The chairman asked what attorneys testified at the Assembly hearings, because he said he is interested in "fleshing this out pretty well in the minutes," in order to clearly state the intent of the law. Subjects such as this one are easily misinterpreted or interpreted in a manner other than the intent of the bill's sponsors. If the intent is found to be overbroad, the courts are likely to "strike the whole thing down as unconstitutional," the senator pointed out, and that would defeat the purpose of the law, altogether. Russell J. Shoemaker, Sergeant, Sexual Assault Detail, Las Vegas Metropolitan Police Department (METRO), came to the witness table in support of the bill. Sgt. Shoemaker explained he is assigned to the child sexual abuse detail. There, he explained, he investigates allegations of "people touching children in a sexual manner, as well as videotaping or photographing them in such a manner. Sgt. Shoemaker attempted to answer the question put to Mr. Close by the chairman, as to what the objective standard would be to "appealing to the prurient interest in sex." He stated, "The prurient sexual interest is that which might be viewed by any person and after such viewing be able to determine that the purpose of the video presentation photograph performance was sexually explicit conduct to incite the prurient interest of another person." The witness agreed it is difficult to explain what this means without "showing examples." He offered to do so, noting he has several videotapes as examples. One case which the police were unable to prosecute was a man with his two nieces at Discovery Zone. This man filmed the young girls' crotches, had them dress in white cotton panties and filmed their crotches some more, along with filming the crotches of passersby. It was not just the crotches being present in the video, he explained, but rather the entire screen was filled with a view of the crotch areas of the subject. Prurient interest, Sgt. Shoemaker continued, might best be demonstrated by the lewd or lascivious exhibition of the genitalia, whether clothed or not, in such a fashion as to incite sexual interest. He offered the names of a couple of cases that caused the police to seek this bill. One, Knox, distributed material similar to that taken at the water park. Knox was arrested and his case went all the way to the U.S. Supreme Court. Sgt. Shoemaker offered a copy of the supreme court decision in Knox as an exhibit (Exhibit D). The decision was that Knox was producing pornography according to the standards set by the U.S. Supreme Court. METRO deals with a lot of people who could be called pedophile, the witness told. These investigations reveal films similar to those produced at the water park. These films are stored by individuals alongside other forms of pornography, including blatant child pornography, Sgt. Shoemaker stated. Finding these films all stored together, the witness testified, leads him to believe even the less blatant films are for the sexual interests of the owner of the film. He offered an example of a man who moved to the area from San Diego. This man had a collection of videos that cover the entire spectrum of pornography, including the ones produced from pictures taken at the water park and ones where he was pictured having sex with very young girls. When the man was arrested, the only charges he faced in Nevada were gross misdemeanors, because, Sgt. Shoemaker explained, current Nevada law makes possession of such pictures a crime on that level. Senator James asked why the man could not be charged with the crime of having sex with children. The witness explained those activities did not occur in Nevada, and it was up to California authorities to prosecute him for those crimes. Senator Washington asked the witness if this bill will give police the tools to be able to apprehend and convict these people a lot quicker than we are doing now. He stated he feared it might be just going through another formality, another "hoop" to jump through, to finally incarcerate them and put them away. Sgt. Shoemaker replied: Senator Washington, there is no one bill that, I think, would ever be able to do that for us. It's a combination of all of the laws that we pass. Senate Bill 192 has taken us a great step farther, through that one bill that we all visualize as being the one cure-all for this problem. This, Assembly Bill 405, in conjunction with Senate Bill 192, will be a powerful tool that I can use. Current laws requires the subjects of the pictures be naked and engaged in sexual conduct before felonies can be charged. A.B. 405 will move the laws in the right direction; however, he stated, it is not a "cure-all." Senator Adler asked what the intent was under section 2 of the bill. "Is this an attempt to prosecute persons for having a minor prepare, advertise or distribute the materials to other minors or is it an attempt to prosecute persons for distributing this material?," he asked. He read the section to the witness and asked for an interpretation, noting the way it is worded sounds like the person would be prosecuted for encouraging a minor to distribute the materials to a minor. The chairman called Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association, to answer the legal questions being put by the committee. Senator James referred to lines 3-5 of the bill and asked Mr. Graham to interpret the sentence. Mr. Graham agreed the wording was confusing, stating there may be an omission in the drafting of the bill. He opined the intent of the section is to prosecute anyone who utilizes a minor to prepare any advertising, or anything to be distributed, rather than to prosecute a minor who might be "handing it out." Senator James offered the intent of the bill is to go after people who prepare, advertise and distribute anything that depicts a minor in this fashion. Mr. Graham agreed. The way the section is currently worded, Senator James explained, requires the proof of two separate elements: a minor depicted in the materials, and a minor distributing the materials. This wording would allow a person to slip through by proving he did not use a minor to distribute the materials, he stated. Mr. Graham, after discussing with the bill's sponsor, referred to page 2, line 6, "sexual portrayal which...prurient interest in sex." There he suggested the words "in sex" are redundant and might be removed. He suggested wording might be added at the end of the definition of sexual portrayal to the effect, "with no social redeeming value," because this is the standard utilized by the supreme court. Using this standard might provide the law with a better chance of withstanding a constitutional challenge, he stated. Senator James agreed with the witnesses' statements and suggestions. He asked to "nail down" the standard, wondering if the law contains a Miller-type standard it might be on safer ground against challenge. Mr. Graham agreed. The senator noted the Miller standard is an objective community standard to be determined by the jury. Mr. Graham agreed it would be a jury question. Senator James reminded the witness the Miller decision does not refer to socially redeeming value, but rather material having "no serious literary, artistic, or other value." Mr. Graham could not recall the exact wording in Miller, but opined both phrases are the same in meaning. Senator Adler referred to section 5, wondering if there was a difference between subsections 1 and 2 of that section. Both subsections speak of performances, he observed. Senator James interjected the definition of sexual conduct is not as broad as the definition of sexual portrayal. This section puts sexual portrayal into the same definition. This section attempts to remove the need for a lewd and lascivious exhibition, he added. Senator Adler stated he understood. Senator Adler next referred to section 4, page 1, lines 17-18. He asked if this language was overbroad in its coverage. Mr. Graham explained the old language is even more broad, but the section also attempts to include more modern methods of transmission of these pictures, including computer-generated images. Senator Adler wondered if an electronic representation would include stick figures on the computer screen. Mr. Graham replied, "It would depend on how prurient you could make those sticks." Senator James interjected the definition of performance is not so important because it is not "operative" in the crime. Mr. Shoemaker added that an electronic representation could be so broad as to include a composite picture of an adult head on a child's body. Mr. Close referred to section 2 noting it is not the intent to punish the children involved in the activity, but the adults who are facilitating it. He suggested there could be a simple change in the wording to clarify that intent. As for section 4, he stated, he is willing to accommodate any changes suggested by the committee. There was no further testimony from these witnesses. The chairman asked the research analyst to use the Miller v. California decision along with the Knox case to determine how the court defines the community standard for pornography. This will provide the bill with a proven standard that will withstand constitutional challenges, he stated. He suggested, "Sexual portrayal means the depiction of a person in a manner which appeals to the purely prurient interest without serious literary, artistic or social value." Senator Titus stated she teaches a class which discusses pornography. She remembered the Miller test as being "the average person, applying contemporary community standards, finds the content of the material, taken as a whole, appeals to prurient interests." Who the average person is, what the contemporary community standards are, all remain to be decided by the jury, she stated. Senator James asked that the cases be Shepardized to ensure there have been no recent decisions which would affect the standard of using minors in pornography. Because, he observed, if there is a stricter standard, it would be preferable to use it. Janine Hansen, Lobbyist, President, Nevada Eagle Forum, came to speak in support of A.B. 405. She reported the national organization has been very active in fighting child exploitation. She opined there is a different standard to be applied to children and pornography. The witness also offered the committee a copy of the recently passed California statute similar to the one before them today. Ms. Hansen quoted the final report from the U.S. Attorney General on Children, reading, "What is commonly referred to as child pornography is not so much a form of pornography as it is a sexual exploitation of children." Because the children are photographed while they are engaged in real sexual activity, it involved sexual abuse of children as well, she reported. Additionally, child pornography is a frequent tool used by pedophiles in their attempts to seduce and abuse children. Ms. Hansen read further excepts from the attorney general's report, especially in reference to the use of child pornography as a tool to molest other children. Finally, the witness urged the committee to pass this bill using the standard that is most applicable to child pornography. She stated it is important to have the felony penalty for possession of child pornography because it is used as a tool to damage other children. Sheila Ward, Lobbyist, Carson/Douglas Christian Coalition, came forward to speak in support of this bill, as well. She did not wish to make any statement other than the coalition does support this bill. She stepped down. Lucille Lusk, Lobbyist, Nevada Concerned Citizens, also spoke for the bill. She reported her organization was very interested in this subject because of the water park incident. This incident resulted in the humiliation of children and their families due to the unscrupulous activities of others, she said. Ms. Lusk opined the question about section 2 of the bill could be resolved by deleting "uses, employs, encourages, entices, coerces, or permits a minor..." and simply saying, "A person who knowingly prepares, advertises or distributes...." The other areas of concern, she observed, are addressed on page 2, section 5, subsection 2 of the bill, where it says,"a person who knowingly uses, encourages, entices or permits a minor...." She suggested the only word missing from this section is the word "coerces," which the committee may wish to insert. She encouraged the committee to move the bill as quickly as possible. There was no further testimony. The chairman reassured the witnesses the bill would have time to proceed. He reported the Knox case used the phrase "the prurient interest in sex," and thus, it is not necessarily redundant in its meaning. He read from the decision, noting it states the Miller standard is not necessarily the standard to be used when directing legislation at child pornography. "The supreme court relaxes the Miller obscenity test when pornographic material portrays minors, since the government's interest in safeguarding the physical and psychological well being of the minor is compelling," he read from the decision. The decision brings out a constitutional standard which is much stricter, he said, allowing material to be considered obscene even though the children were clothed. Senator Adler finally asked the assemblyman if section 2 of the bill is intended to attack the individual who employs a minor, or the individual who knowingly prepares, advertises or distributes the material depicting the minor. Mr. Close agreed it is the distributor, not the child. Senator James asked the researcher to have the information about the obscenity standard ready for the next day's work session, as he desired to move the bill as soon as possible. He then closed the hearing on A.B. 405. The next bill to be heard was S.B. 464. SENATE BILL 464: Makes various changes to provisions governing incarceration and custody of parolee who violates condition of parole. Senator James explained the bill had been heard previously and it requires the Division of Parole and Probation to transfer more quickly an individual who has been arrested and detained on a parole violation. There was a fiscal note of $178,000 for the first year, he reported. There were representatives of the Division of Parole and Probation as well as the proponents of the bill present. The chairman asked these individuals if they had been able to come to a compromise on the issue. The chairman explained that if the number of days was changed to 5 days the fiscal note would be removed, except in the case of female inmates. The female inmates do not have a facility close by in Las Vegas and this results in a delay of their transportation to the women's prison, he added. Stan Olsen, Lobbyist, Las Vegas Metropolitan Police Department (METRO), greeted the committee and was joined at the witness table by Carlos Concha, Acting Deputy Chief, Division of Parole and Probation, and Joseph K. Evers, Director, Detention Facilities, Las Vegas Metropolitan Police Department (METRO). Mr. Olsen explained the three of them had discussed an amendment to the bill which would meet the needs of everyone. This amendment will allow the division to leave their prisoners in the Clark County jail for a slightly longer period of time. Mr. Concha explained if the division was required to pay boarding fees after only the second day of incarceration in Clark County, there would be a huge fiscal note. If 5 days were allowed, however, there would not be a problem. The female inmates cause a different problem, he told the committee. If they are transported after only 5 days, the parole board would have to transport witnesses to Carson City for a hearing. Carson City is the location of the Women's prison, he said. Once a women's prison is built in the Las Vegas area, this problem will be alleviated, as well. As things stand now, Mr. Concha testified, the women prisoners must remain in the Clark County jail until they have their probation revoked or they are released. The proposed amendment, Mr. Concha opined, will be workable because the division can transport the male inmates to the prison. Mr. Evers stated that after meeting and talking with Mr. Concha, the detention division of METRO would be willing to "live with" the 5-day time frame. The present average length of stay, he reported, is 28 days. Thus, 5 days is a great reduction in time. He concluded that the female inmates do present a difficult problem and he agreed to allow the females to remain at the detention facility for a longer time. This will be possible because there are far fewer females than males who are detained for parole violations, he reported. Senator Titus asked Mr. Concha for reassurance that the department can reduce their time from 28 to 5 days. Mr. Concha replied that once the hearing has been completed on an offender (a hearing to show cause that a violation of probation was committed), he can be transported within the 5 days. All that is needed after the hearing is a summary report of the hearing. Without a warrant or a summary of the preliminary hearing, the prison will not allow the inmate to be transported back to prison. The 5 days should be sufficient to generate the report, he said. The current 28-day average is probably the result of negligence on the part of the prison and the department, in simply not picking up the inmate in a timely fashion. Senator Titus wondered if the charges would still accrue for the women who are held longer than 5 days. Mr. Evers suggested that the bill be amended to provide language that allows the 5-day limit on male inmates with some other arrangement made for the females. The senators were unsure if it is possible to pass the law with reference to males only. Mr. Concha interjected the females in Washoe County or other areas in the north would be transported in the 5-daytime frame. The only problem lies with the females in the southern part of the state. Senator Porter asked Mr. Evers if Clark County should still be paid for the inmates, male or female, who must be held longer than the 5-day limit. Mr. Evers replied it is not his intent to charge the state for the females, because the situation is out of their control at this time. He observed the "state system is in a bind, basically they have no alternative." The senator asked the witness if he felt the state should reimburse Clark County for their costs. Mr. Evers agreed, but he opined the female were a special case at this time, which he was willing to accommodate. There was some discussion as to suggested language which would cover the situation without being too limiting in the circumstances. Senator Adler wondered if language to the effect, "...if there is a correctional facility within 30 miles, or 50 miles of the jail, for that inmate, they must be transported...." He opined it might be possible to extend the distance limit to as high as 100 miles. Mr. Olsen interjected another possibility. He suggested language to the effect, "...absent an agreement with parole and probation..." Then the detention facility could enter into an agreement with the division regarding the female inmates, which could be amended once the female facility was built in the south. Senator James suggested the committee request the bill drafters to draft the amendment to include an exception for female parole violators in southern Nevada. He said it would be best to leave the wording to them. Mr. Evers opined the reduction in inmates would be appreciable and his goal in bringing the bill will have been accomplished. Laurel Stadler, Lobbyist, Mothers Against Drunk Driving (MADD), Lyon County Chapter, came and spoke, reminding the committee of her previous testimony in opposition to the bill. This opposition was based on the possibility that parole violators might be released into the public. This, she observed, does not appear to be the case and she withdrew her objections. There was no further testimony on the bill and the chairman closed the hearing on S.B. 464. He reviewed the amendment to the bill as extending the time limit to 5 days, in order to eliminate the fiscal note. Plus, there will be an exception for southern Nevada as to the charge for housing female inmates longer than 5 days. He stated the females in southern Nevada would retain the existing time frame of 15 to 30 days. Senator Titus stated she prefers the suggestion of allowing an agreement between the division and the detention facilities. This way, she said, it would not be necessary to retain the old language in reference to female inmates in southern Nevada. Mr. Olsen explained the language about an agreement would remove the need to return to the Legislature later, after the female facility is built, to change the law once again. Senator Adler pointed out the might be other cases that are exceptions to the 5-day rule, such as severely mentally ill inmates, who must be sent to Reno. Mr. Olsen represented that Mr. Concha was willing to draft some type of agreement. The chairman conceded this would be the best approach. He called for a motion to amend and do pass S.B. 464. SENATOR LEE MOVED TO AMEND AND DO PASS S.B. 464 AS DISCUSSED. SENATOR WASHINGTON SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** There was discussion of upcoming hearings. The chairman asked Senator McGinness if he had obtained the amendment for one of his bills. He reported the amendment would probably be ready the following day. Senator Adler told the committee a question has arisen as to whether the Legislature can allow the Governor to reappoint members of the parole board. An opinion was issued which stated the Legislature can authorize the Governor to reappoint. This seems to be the desire of a lot of people, the senator reported. Senator Porter spoke briefly about the session in general. He stated it has been a session full of adjustments and changes to the criminal justice system. He said it is still his concern that drug and other substance abuse is not being addressed effectively. He said it is his desire, during the coming session to look at that subject more closely, and not to allow it to further shift from public attention. Senator Washington pointed out there have been many attempts during the session to address substance abuse at the front end. Many bills have been passed to divert these offenders into treatment programs that will give a long-term solution to their problems. There was no further discussion and the chairman adjourned the hearing at 9:35 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary June 13, 1995 Page Senate Committee on Judiciary June 13, 1995 Page