Kushmanick, which was decided last year by a Pennsylvania appellate court, but which I just came across last week (all quotes are from the opinion): 1. The age of consent for sexual activity generally in Pennsylvania is 16. “Prohibited sexual act” is defined as various sexual acts or “lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.” The definition does not include any requirement that the act be criminal independently of its being recorded. The majority decision: [W]e agree with [Defendant ]that the conduct at issue herein is not of the type which the legislature intended to punish. when he was 18 or 19, and she was 16 (according to defendant, just a week shy of her 17th birthday). (2) Any person who knowingly photographs, videotapes, depicts on computer or films a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act commits an offense….. Any person who intentionally views or knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.(There is the possibility that someone may be prosecuted for “corrupting the morals of a minor” when the minor is 16 or 17, but this was not an issue raised in this case.) As part of their relationship — according to Kushmanick, after S. “The purpose of Section 6312 is plainly to protect children, end the abuse and exploitation of children, and eradicate the production and supply of child pornography.” The facts of this case do not establish abuse or exploitation of S. and thus subject to the lifetime registration requirement.” The relevant statutes provide: (1) Any person who causes or knowingly permits a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act commits an offense if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed. Defendant was convicted and “sentenced to 18 months of probation” but was also “classified as a Tier III offender …
She testified that during those months, Appellant photographed her over sixty times in sexually explicit poses despite the fact she was under the age of eighteen.
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[Footnote:] The Majority appears to equate “prohibited sexual act” in [the statute] with a criminal act.
However, [the statute] defines the term “prohibited sexual act” as “[s]exual intercourse …, masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.” The statute therefore does not depend on the legality or illegality of the underlying act, rather it depends on depicting a child under the age of 18 engaging in any of the listed “prohibited sexual acts.” 5.