The provisions of the bill addressing felony sanctions are the subject of this analysis. The bill would amend the Penal Code as it relates to affirmative defenses to prosecution for certain offenses involving material or conduct that is obscene or otherwise harmful to children. Under the provisions of the bill, it would no longer be an affirmative defense to prosecution that the conduct for the offense of sexual performance by child was for a bona fide educational, medical, psychological, psychiatric, judicial, or legislative purpose or that the offense of sale, distribution, or exhibition of harmful material to a minor was by a person having scientific, educational, governmental, or similar justification. These offenses are punishable at multiple felony levels with punishment based on the specific circumstances of the offense. A first degree felony is punishable by confinement in prison for life or a term from 5 to 99 years; a second degree felony is punishable by confinement in prison for a 2 to 20 years; and a third degree felony is punishable by confinement in prison for 2 to 10 years. In addition to confinement, most felonies may be subject to an optional fine not to exceed $10,000.

Reducing the affirmative defenses to prosecution, which results in expanding the circumstances for a criminal offense, is expected to result in additional demands on the correctional resources of the counties and of the State due to an increase in individuals placed under supervision in the community or sentenced to terms of confinement within state correctional institutions. In fiscal year 2018, fewer than ten people were arrested, placed on felony direct community supervision, or admitted into state correctional institutions for the sale, distribution, or display of harmful material to a minor. In fiscal year 2018, 81 people were arrested, 12 placed on felony direct community supervision, and 15 admitted into state correctional institutions for sexual performance by child. This analysis assumes the provisions of the bill addressing felony sanctions would not result in a significant impact on state correctional populations or on the demand for state correctional resources.