2021 legislation
Child Exploitation Bill
HB1346 Moody / SB1227 Rose
Introduction: [Tenn. Code Ann. § 39-17-1002(8)(G)]
Under the current law, to charge Especially Aggravated Sexual Exploitation of a Child (Production of Child Pornography) requires a jury to consider whether the images or videos were intended to elicit a sexual response in the average viewer (objective intent), not whether the content was intended to elicit a sexual response from the defendant himself or a like-minded pedophile (subjective intent). See State v. Whited, 506 S.W.3d 416 (Tenn. 2016).
Thus, someone with a sexual interest in children who surreptitiously records minor(s) in a state of undress, such as getting in and out of a shower at home or in the bathroom at a children’s soccer field, would not be included under the Especially Aggravated Sexual Exploitation of a Child statute.
Changing part of the definition of “sexual activity” in the child exploitation statutes to include the subjective intent of the accused (i.e. for the purpose of sexual arousal or gratification of himself or another like-minded person) would result in language consistent with that in the Aggravated Sexual Battery statute.
In Whited, the Tennessee Supreme Court essentially invited a legislative fix, noting that other states “have included in their child exploitation statutes explicit language making the defendant’s subjective purpose of sexual gratification an element of the offense,” unlike Tennessee’s statute.
This minor change provides more protection for the children in our community from individuals who secretly record children in a state of partial or complete undress for the purpose of sexual arousal or gratification.
Including the subjective intent of the accused as an element of the crime will allow intentional surreptitious recordings of minors in a state of undress to be charged as production of child pornography when the accused made the recording for the purpose of sexual arousal or gratification of himself or another like-minded person.
This change would not criminalize normal childhood photos, such as pictures of a baby in a bathtub, unless they were taken for the purpose of sexual arousal or gratification. Nor would it criminalize photos in medical or other literature (e.g. National Geographic).
(G) Exhibition of the breast, genitals, buttocks, anus, or pubic or rectal area of any minor that can be reasonably construed as being for the purpose of the sexual arousal or gratification of the defendant or another.