ii. Legislative History
1. The Early Years -
In 1977, the Michigan legislature drafted the first criminal statute that prohibited the use of children in pornographic material for commercial purposes.16 The legislature, at the time, believed that the law should be tailored to be practical, severe, and to prohibit the exploitation of children in pornographic material.17
A primary concern, in 1987, was whether the statute would continue to keep up with the increase in technology, which at the time was one-hour photo-shops.18 The legislature removed the word “commercial” from § 750.145c,19 and thus the following provisions emerged:
(b) “Child” means a person who is less than [eighteen] years of age, subject to the affirmative defense created in subsection (6) regarding persons emancipated by operation of law . . .
(2) A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make or finances any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than [twenty] years . . . if that person knows, has reason to know, or should reasonably be expected to know that the child is a child . . .
(3) A person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more than [seven] years . . . .20
Pursuant to the 1987 amendment, an individual who was found to have in his or her possession 1,100 pictures of 145 under-age children (that he or she “made”) was charged for production even if he or she did not receive any financial compensation for that material.21 Whereas prior to the amendment, an individual had to recieve some sort of compensation for making the materials otherwise he or she could not have been charged under statute.22
It is apparent, after reading § 750.145c(2), that the legislature failed to include an element of intent;23 therefore, courts feared that if “distribute” was construed too broadly, it would inevitably impede criminal liability onto innocent individuals.24The Court of Appeals ultimately held that an individual could be convicted for distribution alone, if he or she had an “intent to disseminate” child sexually abusive material.25 Therefore, a defendant charged for “production” simply had to maintain an intent to “produce” child sexually abusive material.26 There is no mention within the statute that an individual charged for “production” must also intend to take the next step towards “distribution.”27
The Michigan Court of Appeals explained that § 750.145c(2) “clearly and unambiguously imposes criminal liability on three distinct groups of ‘persons.’”28The first category is “‘a person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in child sexually abusive activity for the purpose of producing child sexually abusive material.’”29 The second category is separated by a conjunctive “or,” stating that criminal liability is attached to “‘a person who arranges for, produces, makes, or finances any child sexually abusive activity or child sexually abusive material.’”30 The third category is also separated by a conjunctive “or” and states that “‘a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material.’”31
Therefore, the legislature omitted from “the second and third [categories] of criminal actors the requirement applicable in the first group that the proscribed actions [be] taken for the purpose of creating child sexually abusive material [or] for the ultimate purpose of creating any child sexually abusive material.”32