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2019 Guam Statutes
Title 9 - Crimes & Corrections
Chapter 28 - Public Indecency

Universal Citation: 9 Guam Code §§ 28.10 - 28.102 (2019)
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9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY CHAPTER 28 PUBLIC INDECENCY 2014 NOTE: Unless otherwise indicated, the Notes and Comments are the original annotations from the Criminal and Correctional Code (1977), enacted by P.L. 32-185 (Sept. 2, 1976). These annotations were included when the Criminal and Correctional Code (1977) was “recodified” as Title 9 of the Guam Code Annotated pursuant to P.L. 15-104:8 (Mar. 5, 1980). These original annotations were retained in past print publications of the GCA,and are included herein for historical purposes. The Source notes, however, have been updated to reflect subsequent changes to each provision. Article 1. Prostitution. Article 2. Obscenity and Related Offenses. ARTICLE 1 PROSTITUTION § 28.10. § 28.15. § 28.20. § 28.25. § 28.30. § 28.35 Prostitution Defined; Punishment Established; Definitions. Loitering for the Purpose of Soliciting to Engage in Prostitution. Promoting Prostitution; Punishment; Defense. Abetting Prostitution; Punishment. Compelling Prostitution; Punishment. Evidence of Place & Persons Admissible. COMMENT: (1978) Article 1 continues what appeared to be the policy of repressing commercialized sexual activity found in the former Guam Penal Code. However, because of defects in that Code which did not permit the prosecution of prostitution, per se, very little has been done in the area. This Code improves upon the situation by defining prostitution to mean engaging in, or agreeing to engage in, or offering to engage in sexual intercourse or deviate sexual intercourse in return for a “pecuniary benefit.” Thus, one need prove only one act to prove prostitution rather than, as in the past, proving a Acourse of conduct.@ Section 28.15 creates a crime of soliciting, engaging in or offering to engage in prostitution in, or in view of, a place which could be described broadly as a “public place.” Sections 28.20 and 28.25 follows the Model Penal Code in providing comprehensively for various aspects of conduct engaged in by those who exploit prostitutes for their own benefit. § 28.30 groups together conduct of aiding prostitution which is accompanied by force or duress which exploits the immature, or which victimizes a dependent person. This both broadens former law by addressing itself directly to the exploitation of dependents and minors and narrows it by excluding 1 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY conduct which is peripheral to prostitution. Contrast former § 266g. Compare former §§ 273b and 309, G.P.C. Section 28.35 deals with the admissibility of evidence proving the general repute of persons who frequent a place alleged to be a house of prostitution. (1994) In general, P.L. 22-158 toughened definitions, penalties and the scope of the prostitution laws. Both parties to the transaction maybe prosecuted and prostitution is illegal whether or not it takes place in a “public place”. § 28.10. Prostitution Defined; Punishment Established; Definitions. (a) A person who engages in, or agrees to engage in, or offers to engage in, sexual penetration or sexual contact or in any sexual conduct or act with another person in return for a fee or in consideration of a pecuniary benefit commits the crime of prostitution. It is the intent of this section that guilt attach to both the payor and the recipient of the fee or pecuniary benefit that is the consideration for the act of prostitution, except that a police officer engaged in the performance of his or her official duties in the performance of an investigation of offenses committed under this chapter shall not be charged under this section. (b) (1) A person convicted of prostitution shall be guilty of a misdemeanor; or (2) A person convicted of a third offense of prostitution within three (3) years of the first two (2) offenses shall be guilty of a felony of the third degree; or (3) A person convicted of prostitution who is determined to have known that he or she was infected with either HIV or AIDS at the time of the commission of the act shall be guilty of a felony of the first degree. (c) As used in this section, the terms sexual penetration and sexual contact have the meanings provided by § 25.10 of this title. SOURCE: Amended by P.L. 15-60:2, eff. 08/31/79. Repealed/ reenacted by P.L. 22158:1 (12/30/94). § 28.15. Loitering for the Purpose of Soliciting to Engage in Prostitution. (a) For the purposes of this section, public place means any street, sidewalk, bridge, alley or alleyway, plaza, park, driveway, parking lot or transportation facility or the doorways and entrance ways to any building 2 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY which fronts on any of the aforesaid places, or motor vehicle in, on or at such place, or in any building area which is open to the public. (b) Any person who remains or wanders about in a public place and repeatedly beckons to or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons for the purpose of committing prostitution shall be guilty of a misdemeanor. SOURCE: New Section, (1978). Repealed/reenacted by P.L. 22-158:2 (12/30/94). COMMENT: (1994) Guam law has been changed to considerably broaden the scope of the earlier law regarding where prostitution and the solicitation for it will be prohibited. § 28.20. Promoting Prostitution; Punishment ; Defense. (a) A person is guilty of promoting prostitution who: (1) owns, controls, manages, supervises or otherwise keeps, alone or in association with others, a place of prostitution or a prostitution enterprise; or (2) knowingly solicits, induces or causes a person to commit or engage in prostitution or to reside in or occupy a place of prostitution. (b) Promoting prostitution is a felony of the third degree. (c) It shall not be a defense to a prosecution under this section that the place of prostitution or prostitution enterprise is licensed for any purpose other than prostitution or that the act or the attempted act of prostitution that is promoted occurs at a place other than the site of the offense charged under this section. SOURCE: G.P.C. §§ 266, 266a, 266b, 266f, 315, 316; see also §§ 266e, 266f; M.P.C. § 251.2(2), (3); *Cal. § 1803 (T.D.2 1968); Cal. § 954 (1971); Mass. ch. 272, § 4(a), (f)(3); N.J. § 2C:34-2(b), (c). Amended by P.L. 22-158:3 (12/30/94). § 28.25. Abetting Prostitution; Punishment. (a) A person is guilty of abetting prostitution who: (1) solicits a person to patronize a prostitute; or (2) procures a prostitute for himself, herself or another person; or (3) knowingly and for the purpose of prostitution, transports any person into, out of or within Guam, or who procures or pays for the 3 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY transportation of any person into, out of or within Guam for the purpose of prostitution; or (4) knowingly permits prostitution in any premises under his or her possession or control or fails to make reasonable effort to halt or abate such use. For purposes of this paragraph, premises shall include a motor vehicle. (b) (1) A person convicted of abetting prostitution shall be guilty of a misdemeanor; or (2) A person convicted of a third offense of abetting prostitution within three years of the first two offenses shall be guilty of a felony of the third degree. SOURCE: G.P.C. §§ 266c, 266d, 316, 318; M.P.C. § 251.2(2), (3); *Cal. § 1804 (T.D.2 1968); Cal. § 954 (1971); Mass. ch. 272, § 4(a), (f)(3); N.J. 2C:34-2(b), (c). Amended by P.L. 22-158:4 (12/30/94). COMMENT: (1977) § 28.25 creates a misdemeanor for those persons found guilty of the lesser offenses of soliciting either prostitutes or their patrons, permitting prostitution on premises they control, or transporting or paying for transportation of prostitutes in, to or out of Guam. (1994) Penalties have been enhanced. § 28.30. Compelling Prostitution; Punishment. (a) A person is guilty of compelling prostitution who: (1) by force, threat or duress compels another to engage in, promote or abet prostitution; or (2) causes or aids a person under the age of eighteen (18) to commit or engage in, promote or abet prostitution; or (3) causes or aids his or her spouse, child or any person whose care, protection or support he or she is responsible for, to commit or engage in or aid or abet prostitution. (b) (1) A person convicted or compelling prostitution shall be guilty of a felony of the third degree; or (2) A person convicted of a third offense of compelling prostitution within three years of the first two offenses shall be guilty of a felony of the first degree. 4 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY SOURCE: G.P.C. §§ 266, 266a, 266g, 267, cf. §§ 273b, 309; M.P.C. § 251.2(2), (3); Cal. § 1805 (T.D.2 1968); Cal. § 954 (1971); Mass. ch. 272, § 4(a), (f)(3); N.J. § 2C:34-2(b), (c). Amended by P.L. 22-158:5 (12/30/94). § 28.35. Evidence of Place and Persons Admissible. On the issue whether a premise is a place of prostitution, its general repute and the repute of the persons who reside in or frequent the place shall be admissible evidence. NOTE: The amendments made by P.L. 22-158 to this Article take effect 90 days following December 30, 1994. See P.L. 22-158:9. P.L. 22-158:7 provides that the Act does not affect acts done, penalties accrued or proceedings undertaken prior to its effective date. ---------ARTICLE 2 OBSCENITY AND RELATED OFFENSES § 28.40. § 28.45. § 28.49. § 28.50. § 28.51. § 28.52. § 28.55. § 28.60. § 28.65. § 28.70. Definitions. Obscenity: Standards.[Repealed] Same: Distribution. Same: Participation In. Same: Employment of Minor. Use of One's Child in Obscene Acts. Defenses. Disposition of Obscene Material. Indecent Exposure; Defined & Punished. Loitering to Solicit Sexual Contact; Defined & Punished. [Repealed] § 28.80. Photography of Minors' Sexual Acts: Punished. § 28.90. Obscene, Anonymous, Harassing and Threatening Communications by Computer; Defined and Punished. § 28.100. Illegal Use of a Computer or Telecommunications Device to Disseminate Prohibited Materials Involving a Minor- Sexting; Crime Defined and Punished. § 28.101. Illegal Use of a Computer or Telecommunications Device to Disseminate Prohibited Materials Involving a Minor- Sexting; Mandatory Distribution of Information Brochure about Sexting by Retail Stores Who Sell Cellular Telephone Equipment or Cellular Telephone Equipment Service Contracts. 5 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY § 28.102. Unlawful Distribution of Images; Exceptions; Definitions; and Penalties. COMMENT: The provisions set forth in this Article relating to obscenity are believed to conform to the standards presently set by the U.S. Supreme Court (1976). This is, however, a volatile area of the law and the Commission has not attempted it to update this provision to cover developments in the last two (2) years. This must be done if, upon further research, it appears that there are any serious defects in this Article. Since the trend of the Supreme Court has been to give more power to “local standards” this Article is probably somewhat more limited than the Supreme Court would require at the time of enactment (1977). The main benefit of this Article is that it creates a standard by which the jury and court may determine what is obscene, a fatal defect in the former law. Certain defenses are allowed, most of which reflecting the view that the private view of obscene material or their receipt by children when accompanied by responsible adult, no matter how morally objectionable, should not be contrary to law. This Article covers “public lewdness” and seals a gap in the former law of obscenity by providing means for the destruction of obscene materials. § 28.40. Definitions. As used in this Article: (a) Material means any picture, drawing, photograph, motion picture or pictorial representation, or any statue or other figure, or any mechanical, chemical or electrical reproduction, or anything which is or may be used as a means of communication (other than the written or spoken word). Material includes molds, printing plates and other latent representational objects. (b) Prurient interest means a shameful or morbid interest in nudity, sex or excretion. (c) Performance means any physical human bodily activity, whether engaged in alone or with other persons, including but not limited to dancing, acting, simulating or pantomiming which is either public or for commercial gain. (d) Distribute means to transfer possession of material. (e) Any material or performance is obscene if: (1) The average person, applying contemporary community standards, finds that the material or performance, taken as a whole, appeals to the prurient interest; and 6 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY (2) The material or performance depicts or describes in a patently offensive way, sexual conduct, normal or perverted, actual or simulated; and (3) The material or performance, taken as a whole, lacks serious literary, artistic, political or scientific value. (f) Sadomasochistic abuse means flagellation or torture by or upon a person as an act of sexual stimulation or gratification. (g) Sexual conduct means acts of masturbation, excretory functions, lewd exhibition of the genitals, sadomasochistic abuse, bestiality, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or the breast or breasts of a female for the purpose of sexual stimulation, gratification or perversion. (h) Owner means any person who owns or has legal right to possession of any material. (i) Pornographic means any material or performance which all of the following coalesce: (1) The average person, applying contemporary community standards, would find that taken as a whole, it appeals to the prurient interest. (2) It depicts or describes sexual conduct in a patently offensive way. (3) Taken as whole, it lacks serious literary, artistic, political, or scientific merit. SOURCE: G.P.C. §§ 266g, 315; M.P.C. § 251.2(6); *Cal. § 1806 (T.D.2 1968); Mass. ch. 272, § 4(d); amended by P.L. 16-84. Subsection (i) added by P.L. 31-245:2 (Dec. 6, 2012). § 28.45. Obscenity: Standards. [Repealed.] SOURCE: CF. G.P.C. § 311; M.P.C. § 251.4(1); Cal. § 1750 (T.D. 2 1968); *Cal. § 962, 970 (1971); Mass. Ch. 272, § 6. Repealed by P.L. 16-84. § 28.49. Same: Distribution. Every person who knowingly sends or causes to be sent, or who in Guam possesses, prepares, publishes, shows, prints or who offers to 7 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY distribute, distributes or exhibits to another any obscene material, when such act or acts are public or for commercial gain, is guilty of a misdemeanor. SOURCE: Added by P.L. 16-84. § 28.50. Same: Participation in. Every person who knowingly engages or participates in, manages, produces, sponsors, presents or exhibits any obscene performance which is public or for commercial gain is guilty of a misdemeanor. SOURCE: G.P.C. § 311(2-7); M.P.C. § 251 4(2); *Cal. § 1751 (T.D.2 1968); Cal. §§ 964, 972 (1971); Mass. ch. 272, §§ 5 & 6. Enacted 1977 as § 28.50(h); renumbered as § 28.50(g) by P.L. 14-137, eff. 07/25/78; R/R by P.L. 16-84. COMMENT: Section 28.50 punishes as a misdemeanor certain acts, if done knowingly or recklessly. Subsection (g), formerly numbered Subsection (h), is one of those acts. Section 28.50 punishes as a misdemeanor certain acts, if done knowingly or recklessly. Subsection (h), formerly numbered Subsection (g), makes those acts firstdegree felonies under certain circumstances. Section 28.50 restates Paragraphs (2) thru (7) of § 311 of the Penal Code. § 28.51. Same: Employment of Minor. A person is guilty of a felony of the third degree if he knowingly or recklessly employs or uses a minor under the age of sixteen (16) years to do or assist in doing any of the acts described in §§ 28.49 or 28.50 of this Chapter. SOURCE: Added by P.L. 16-84. § 28.52. Use of One's Child in Obscene Acts. A person is guilty of a felony of the first degree if while having custody or control of any child under the age of sixteen (16) years, he shall knowingly permit that child to be used in or be a party to any material or performance that is obscene. SOURCE: Added by P.L. 16-84. § 28.55. Defenses. It shall be an affirmative defense in a prosecution under this Article for the defendant to show: (a) That the distribution was made to the recipient by a bona fide school, museum or public library or by an employee of such 8 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY organization acting in the course of his employment or of a retail outlet affiliated with and serving the educational purposes of such organization; or (b) That the act was done for legitimate scientific or education purposes. SOURCE: M.P.C. § 251.4(3); *Cal. § 1753 (T.D.2 1968); *Cal. §§ 964, 972 (1971); R/R by P.L. 16-84. 2012 NOTE: In maintaining the general codification scheme of the GCA the Compiler changed the hierarchy of subsections beginning with “Numbers” to “Lowercase Letters” in this section. § 28.60. Disposition of Obscene Material. When the conviction of any person for the commission of any offense defined in § 28.50 becomes final, copies of any obscene material described in the indictment, information or complaint or admitted in evidence which were taken from the possession of the defendant and which are in the possession or under the control of the Attorney General or any law enforcement officer or the clerk of the court may be destroyed upon order of the court. A copy of the order shall be mailed to the defendant and his counsel by the clerk of the court. The date fixed for the destruction of the obscene material must be at least thirty (30) days after the mailing of the order. SOURCE: G.P.C. § 314; *Cal. § 1754 (T.D.2 1968); Cal. § 968 (1971). COMMENT: While § 28.60 continues the substance of former § 314 of the Penal Code, this Section now provides for destruction upon a court order after notice to the defendant and allowance of 30-day period for the defendant's response, if any, to the notice. This latter requirement has been made into a constitutional requirement by the U.S. Supreme Court and, therefore, a necessary part of the Guam Penal Code. § 28.65. Indecent Exposure; Defined & Punished. (a) A person commits the crime of indecent exposure if he or she intentionally exposes their genitals or performs any other lewd act under circumstances in which their conduct is likely to be observed by any person who would be offended or alarmed. (b) Except as provided below, indecent exposure is a misdemeanor. Indecent exposure is a felony in the third degree if: 9 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY (1) a person intentionally exposes their genitals or intentionally performs any other lewd act to a person under the age of sixteen (16) years; or (2) a person intentionally exposes their genitals or performs any other lewd act for the purpose of sexual gratification; or (3) a person has previously been convicted under this Section; or (4) a person has been convicted of any other sexual offense as defined in a provision of the Guam Code Annotated. SOURCE: G.P.C. § 311(1); M.P.C. § 251.1; Cal. § 609 (T.D.1 1967); Cal. § 914 (1971); Mass. ch. 272, § 3; N.J. § 2C:34-1. Amended by P.L. 32-125:2 (Feb. 10, 2014). 2016 NOTE: Subsection/subitem designations added/altered pursuant to the authority of 1 GCA § 1606. CROSS-REFERENCES: 9 GCA §§ 80.34, 80.64 and 80.62. COMMENT: This Section continues the crime of ‘indecent exposure’ while § 28.70 covers a portion of the former crime of ‘vagrancy’and makes the prohibited behavior sufficiently precise so as to avoid the constitutional infirmities which have voided much of the former crime of ‘vagrancy.’ This Section differs from § 28.10 in that the solicitation prohibited by this § 28.10 is not ‘for hire.’ The behavior prohibited here is nuisance behavior engaged in by sexual deviates of all types. § 28.70. Loitering to Solicit Sexual Contact; Defined and Punished. [Repealed.] SOURCE: cf. G.P.C. §§ 647(8), 647a; M.P.C. § 251.3; *Cal. § 1610 (T.D.1 1967); Cal. §§ 912, 938 (1971); N.J. 2C:14-3. Repealed by P.L. 22-158:6 (12/30/94). CROSS-REFERENCES: (1994) See § 28.15 of this Chapter for the replacement section. § 28.80. Photography of Minors' Sexual Acts: Punished. A person commits a felony of the first degree if he knowingly: (a) sells or offers for sale publications, pictures or films that depict minors under 16 years of age performing sexual acts; or (b) photographs minors under 16 years of age to engaging [sic] sexual acts. SOURCE: Added by P.L. 14-137, eff. 07/25/78. 10 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY 2012 NOTE: In maintaining the general codification scheme of the GCA the Compiler changed the hierarchy of subsections beginning with “Numbers” to “Lowercase Letters” in this section. COURT DECISIONS: SUPERIOR COURT, 1978. Although Guam's obscenity statutes [9 GCA § 28.40 et seq.] contain no specific definitions of prohibited sexual conduct, those statutes include by implication the examples of conduct set forth in Miller v. California, 413 U.S. 15, 93 Sup. Ct. 2607 (1973). People v. Daly, Sup. Ct. Cr. #35-78 (Order, 05/12/78; Abbate, P.J.) SUPERIOR COURT, 1978. The examples of conduct set forth in Miller v. California, 413 U.S. 15, 93 Sup. Ct. 2607 (1973), having been adopted by implication as the only specific examples of prohibited sexual conduct, those examples constitute the beginning and end of the obscenity area; thus, sexual conduct not defined by statute cannot be criminal. People v. Schott, Sup. Ct. Cr. #104-78 (Order, 06/19/78; Raker, J.) § 28.90. Obscene, Anonymous, Harassing and Threatening Communications by Computer; Defined and Punished. (a) It is unlawful for any person, with the intent to harass or abuse another person, to use a computer to: (1) make contact via the internet with another without disclosing his or her identity with the intent to harass or abuse; (2) make contact via the internet with a person after being requested by the person to desist from contacting them; (3) threaten via the internet to commit a crime against any person or property; or cause obscene material to be delivered or transmitted via the internet to a specific person after being requested to desist from sending such material; or (4) publish via the internet a webpage or posting on a newsgroup untrue statements about another person which are false and designed to entice or encourage other people to ridicule or perpetuate the untruth about that person. For purposes of this Article and Sections therein, “obscene material” means material that: (A) An average person, applying contemporary adult community standards, would find, taken as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest, or is pandered to a prurient interest; 11 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY (B) An average person, applying contemporary adult community standards, would find, depicts or describes, in a patently offensive way, sexually explicit conduct consisting of an ultimate sexual act, normal or perverted, actual or simulated, an excretory function, masturbation, lewd exhibition of the genitals or sadomasochistic sexual abuse; and (C) A reasonable person would find, taken as a whole, lacks literary, artistic, political or scientific value. (b) It is unlawful for any person to knowingly permit a computer under his or her control to be used for any purpose prohibited by this Section. (c) Any offense committed under this Section may be determined to have occurred at the place at which the contact originated or the place at which the contact was received or intended to be received. (d) Any person who violates a provision of this Section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than One Thousand Dollars ($1,000) or imprisoned for not more than one (1) year, or both. SOURCE: Added by P.L. 31-009:6 (Mar. 9, 2011). § 28.100. Illegal Use of a Computer or Telecommunications Device to Disseminate Prohibited Materials Involving a Minor- Sexting; Crime Defined and Punished. (a) A minor is guilty of an offense of Illegal Use of a Computer Telecommunications Device Involving a Minor, otherwise known as Sexting, if the minor, by use of a computer or any telecommunications device, recklessly or knowingly creates, receives, exchanges, sends, disseminates, transmits or possesses a photograph, video, depiction or other material that shows himself or herself, or of another minor, in a state of nudity. (b) It is no defense to a charge under this Section that the minor creates, receives, exchanges, sends, or possesses a photograph, video, or other material that shows themselves in a state of nudity. (c) Applicability. This Section shall not apply to the use of a computer or a telecommunications device to transmit or distribute a photograph or other depiction involving sexual intercourse, deviate sexual intercourse, sadism, masochism or masturbation. This Section does not prohibit a person 12 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY guilty under this Section to be charged with other chargeable criminal sex offenses under Guam law. (d) An offense under this Section constitutes a "status offense". Any minor found to commit an offense under this Section shall be found guilty of illegal use of a telecommunications device involving a minor in a state of nudity, a delinquent act that would be a misdemeanor if it could be committed as an adult. (e) A minor who violates this Section is guilty of a separate offense for each separate photograph, video, or other material that shows a minor in a state of nudity which is created, received, exchanged, sent, or possessed. (f) Any minor who is convicted of a violation of this Section shall be ordered in addition to the sentence ordered by the Court, as part of his or her sentence, to participate in the educational program similar to that discussed under Subsection (g) of this Section. (g) A juvenile or minor who commits the offense of Illegal Use of a Computer or Telecommunications Device to Disseminate Prohibited Materials Involving a Minor- Sexting, may be eligible for a diversionary program. (1) As used herein, 'eligible offense' means an offense chargeable under this Section where: (A) the facts of the case involve the creation, exhibition or distribution without malicious intent of a photograph depicting nudity as defined in that section through the use of a telecommunications device or a computer; and (B) the creator and subject of the photograph are juveniles or were juveniles at the time of its making. (2) The Office of the Attorney General, Family Division, or whichever designated division of the Office of the Attorney General that addresses matters involving juveniles in the community of Guam, will incorporate such a diversionary program under its current services. Such diversionary program would be similar to or incorporated under the current Pre-Adjudicatory Diversionary Program that the Office of the Attorney General currently utilizes. The program would require the Office of the Attorney General to develop an educational program for juveniles who commit an eligible offense as defined in this Act. The Office of the Attorney General shall then consult with the Judiciary of 13 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY Guam, Juvenile Probation Division, to discuss and implement such educational program, to include the same or similar conditions as the current Pre-Adjudicatory Diversionary Program in place between the Office of the Attorney General and Judiciary of Guam, Juvenile Probation Office. The Office of the Attorney General shall be the sole agency responsible for the determination as to whether a minor may be admitted into the diversionary program. A juvenile who successfully completes the program would have the opportunity to avoid prosecution, and any records relating to such an offense, upon completion of the program, would be dismissed and expunged. (3) Admission to the program shall be limited to juveniles who: (A) have not previously been adjudicated delinquent for or convicted of a criminal offense under Title 9 of the Guam Code Annotated that constitutes a third degree felony or greater; (B) were not aware that their actions could constitute and did not have the intent to commit a criminal offense; (C) may be harmed by the imposition of criminal sanctions; and (D) would likely be deterred from engaging in similar conduct in the future by completing the program. (4) The educational program shall provide information concernmg: (A) the legal consequences of and penalties for sharing sexually suggestive or explicit materials, including applicable local and federal statutes; (B) the non-legal consequences of sharing sexually suggestive or explicit materials including, but not limited to, the effect on relationships, loss of educational and employment opportunities, and being barred or removed from school programs and extracurricular activities; (C) how the unique characteristics of cyberspace and the Internet, including searchability, replicability, and an infinite audience, can produce long-term and unforeseen consequences for sharing sexually suggestive or explicit materials; and (D) the connection between bullying and cyberbullying and juveniles sharing sexually suggestive or explicit materials. 14 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY (5) The Attorney General may promulgate guidelines to effectuate the provisions of this Section. SOURCE: Added by P.L. 31-009:7 (Mar. 9, 2011). § 28.101. Illegal Use of a Computer or Telecommunications Device to Disseminate Prohibited Materials Involving a Minor- Sexting; Mandatory Distribution of Information Brochure about Sexting by Retail Stores Who Sell Cellular Telephone Equipment or Cellular Telephone Equipment Service Contracts. (a) Definitions. As used in this Section: (1) Cellular telephone equipment or equipment means a wireless telephone handset used in conjunction with wireless telephone service. (2) Wireless telephone service means commercial mobile radio service, as defined in Subsection (d) of Section 332 of the Communications Act of 1934 (47 U.S.C. s.332). (3) Sexting is defined in § 28.100 (a) of Title 9, Guam Code Annotated. (4) Store or other retail mercantile establishment or store means a place where merchandise is displayed, held, stored or sold or offered to the public for sale on Guam. (b) It shall be an unlawful practice for any store or other retail mercantile establishment to sell cellular telephone equipment to an individual, or to sell a contract for cellular telephone equipment service to an individual, or to renew a contract for cellular telephone equipment service with an individual, unless the store encloses an informational brochure with such equipment or contract that informs the individual about the dangers of the practice known as sexting. (1) The informational brochure required pursuant to this Subsection (b) shall include, but not be limited to, an explanation of the types of criminal penalties that may be imposed on an individual who engages in sexting, as well as a list of the names, telephone numbers, and addresses of agencies qualified and available to answer questions related to sexting, such as the Office of the Attorney General, Consumer Protection Division, or any other government or nonprofit organizations that is dedicated to educating communities about safety and self-responsibility when usmg cellular telephone equipment. 15 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY (2) The Office of the Attorney General, Consumer Protection Division, the Guam Police Department, and the Department of Revenue and Taxation shall notify all stores that sell cellular telephone equipment or cellular telephone equipment service contracts, of the requirements of this Act by advertising in local newspapers of general circulation on Guam, and shall prepare an information brochure on sexting and make copies available to all such stores. (3) The Office of the Attorney General shall annually report to I Liheslatura on the effectiveness of the brochure preparation and distribution required by this Subsection. (c) The owners of any store or other retail mercantile establishment which violates Subsection (b) shall be subject to a penalty not to exceed One Thousand Dollars ($1,000.00) per each violation, and if applicable be subject to the sentence imposed for corporations under § 80.16 of Title 9 G.C.A. SOURCE: Added by P.L. 31-009:8 (Mar. 9, 2011). § 28.102. Unlawful Distribution of Images; Exceptions; Definitions; and Penalties. (a) It is unlawful for a person to intentionally disclose, or intentionally cause another person to disclose, including disclosing by electronic means, an image of another person who is identifiable from the image itself or from information displayed in connection with the image, or otherwise engaging in revenge pornography, if all of the following apply: (1) the person in the image is depicted in a state of nudity or is engaged in sexual contact; (2) the depicted person has a reasonable expectation of privacy. Evidence that a person has sent an image to another person, including through the use of an electronic device, does not, on its own, remove the person's reasonable expectation of privacy for that image; and (3) the image is disclosed with the intent to harm, harass, intimidate, threaten, or coerce the depicted person. (b) This Section shall not apply to any of the following: (1) lawful and common practices of law enforcement; (2) reporting unlawful activity, or when permitted or required by law or rule in legal proceedings; 16 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY (3) lawful and common practices of medical treatment; (4) images involving voluntary exposure in a public or commercial setting; (5) an interactive computer service, as defined in 47 U.S.C. § 230(f)(2), or an information service, as defined in 47 U.S.C. § 153, with regard to content provided by another person; or (6) any disclosure that is made with the consent of the person who is depicted in the image. (c) For this Section’s purposes: (1) Disclose means display, distribute, publish, advertise, or offer. (2) Disclosing by electronic means means delivery to an e-mail address, mobile device, tablet, other electronic device, or disclosure on a website. (3) Harm means physical injury, financial injury, or serious emotional distress. (4) Image means a photograph, videotape, film, or digital recording. (5) State of nudity means exposure of the naked genitals, pubic area, buttocks, or female nipple. (6) Sexual contact means sexual intercourse, including genitalgenital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex. (7) Reasonable expectation of privacy means the person exhibits an actual expectation of privacy and the expectation is reasonable. (d) Notwithstanding any law to the contrary, any individual convicted under this § 28.102 shall be sentenced as follows: (1) a person convicted of a first offense under this § 28.102 shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than One Thousand Dollars ($1,000) or imprisoned for not more than one (1) year, or both; and (2) a person convicted of a second offense and any offense thereafter under this § 28.102 shall be guilty of a third degree felony. SOURCE: Added by P.L. 33-171 (June 30, 2016). 17 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY CROSS-REFERENCE: 9 GCA § 25.10(a)(8); 10 GCA § 122331(e)(5). ---------- 18 COL292017 9 GCA CRIMES AND CORRECTIONS CH. 28 PUBLIC INDECENCY 19 COL292017
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