3.16Disseminating Sexually Explicit Matter to Minors
“A person is guilty of disseminating sexually explicit matter to a minor if that person does either of the following:
(a) Knowingly disseminates to a minor sexually explicit visual or verbal material that is harmful to minors.
(b) Knowingly exhibits to a minor a sexually explicit performance that is harmful to minors.” MCL 722.675(1).
“A person knowingly disseminates sexually explicit matter to a minor if the person knows both the nature of the matter and the status of the minor to whom the matter is disseminated.” MCL 722.675(2). “A person knows the nature of matter if the person either is aware of its character and content or recklessly disregards circumstances suggesting its character and content.” MCL 722.675(3).
“A person knows the status of a minor if the person either is aware that the person to whom the dissemination is made is under 18 years of age or recklessly disregards a substantial risk that the person to whom the dissemination is made is under 18 years of age.” MCL 722.675(4).
2.Persons Exempted From Offense
MCL 722.675 “does not apply to the dissemination of sexually explicit matter to a minor by any of the following:
(a) A parent or guardian who disseminates sexually explicit matter to his or her child or ward unless the dissemination is for the sexual gratification of the parent or guardian.
(b) A teacher or administrator at a public or private elementary or secondary school that complies with the revised school code, 1976 PA 451, MCL 380.1 to [MCL] 380.1852, and who disseminates sexually explicit matter to a student as part of a school program permitted by law.
(c) A licensed physician or licensed psychologist who disseminates sexually explicit matter in the treatment of a patient.
(d) A librarian employed by a library of a public or private elementary or secondary school that complies with the revised school code, 1976 PA 451, MCL 380.1 to [MCL] 380.1852, or employed by a public library, who disseminates sexually explicit matter in the course of that person’s employment.
(e) Any public or private college or university or any other person who disseminates sexually explicit matter for a legitimate medical, scientific, governmental, or judicial purpose.
(f) A person who disseminates sexually explicit matter that is a public document, publication, record, or other material issued by a state, local, or federal official, department, board, commission, agency, or other governmental entity, or an accurate republication of such a public document, publication, record, or other material.” MCL 722.676.
Disseminating sexually explicit matter to minors “does not apply to any of the following:
(a) A medium of communication to the extent regulated by the federal communications commission.
(b) An internet service provider or computer network service provider that is not selling the sexually explicit matter being communicated but that provides the medium for communication of the matter. As used in this section, ‘internet service provider’ means a person who provides a service that enables users to access content, information, electronic mail, or other services offered over the internet or a computer network.
(c) A person providing a subscription multichannel video service under terms of service that require the subscriber to meet both of the following conditions:
(i) The subscriber is not less than 18 years of age at the time of the subscription.
(ii) The subscriber proves that he or she is not less than 18 years of age through the use of a credit card, through the presentation of government-issued identification, or by other reasonable means of verifying the subscriber’s age.” MCL 722.682a.
“[A] defendant violates MCL 722.675(1)(b) if he or she knowingly exhibits to a minor a depiction of nudity, sexual excitement, erotic fondling, sexual intercourse, or sadomasochistic abuse that is harmful to minors.” People v Lockett, 295 Mich App 165, 181 (2012).
“Disseminating sexually explicit matter to a minor is a felony punishable by imprisonment for not more than 2 years or a fine of not more than $10,000.00, or both. In imposing the fine, the court shall consider the scope of the defendant’s commercial activity in disseminating sexually explicit matter to minors.” MCL 722.675(5).
A defendant convicted of disseminating sexually explicit matter to a minor must pay a crime victim assessment of $130. See MCL 780.905(1)(a).
3.Minimum State Cost and Other Costs
If the court orders payment of any combination of a fine, costs, or applicable assessments, the court must impose the minimum state cost of not less than $68. See MCL 769.1j(1)(a); MCL 769.1k(1)(a).
“It is unquestioned that defendant could not be convicted of [MCL 722.675], because defendant allegedly distributed obscene material not to a ‘minor,’ but to an adult [undercover deputy posing as a minor]. Instead, defendant [was] charged with the distinct offense of attempt [to violate MCL 722.675 under MCL 750.92], which requires only that the prosecution prove intention to commit an offense prohibited by law, coupled with conduct toward the commission of that offense.” People v Thousand (Thousand II), 465 Mich 149, 153, 165-166 (2001) (“Because the nonexistence of a minor victim d[id] not give rise to a viable defense to the attempt charge in this case, the circuit court erred in dismissing this charge on the basis of ‘legal impossibility.’”).