HOUSE BILL REPORT

HB 1537

BYRepresentatives Hargrove, Padden, Locke, Belcher, Wineberry, Tate, Heavey, Fuhrman, Youngsman, Rasmussen, Haugen, Patrick, Wolfe, Brough, Rector, Bowman, Ferguson, Todd and P. King 

Creating a cause of action for certain victims against individuals involved in pornography.

House Committe on Judiciary

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  (16)

      Signed by Representatives Appelwick, Chair; Crane, Vice Chair; Padden, Ranking Republican Member; Belcher, Dellwo, Hargrove, Inslee, P. King, R. Meyers, Moyer, H. Myers, Patrick, Scott, D. Sommers, Tate and Wineberry.

House Staff:Steve Masciocchi (786-7377)

AS REPORTED BY COMMITTEE ON JUDICIARY FEBRUARY 22, 1989

BACKGROUND:

Sexual offenses are codified at chapter 9A.44 of Washington's criminal code.  Listed offenses include rape, rape of a child (formerly called statutory rape), child molestation, sexual misconduct with a minor, and indecent liberties.

Chapter 9.68 RCW provides civil and criminal penalties for certain activities related to the sale, distribution, or exhibitions of erotic or sexually explicit material.  This chapter defines the following terms:

"Erotic material" - "printed material, photographs, pictures, motion pictures, and other material the dominant theme of which taken as a whole appeals to the prurient interests of minors; which is patently offensive because it affronts contemporary community standards . . . and is utterly without redeeming social value."  RCW 9.68.050(2).

"Sexually explicit material" - "any pictorial material displaying direct physical stimulation of unclothed genitals, masturbation, sodomy . . . flagellation or torture in the context of a sexual relationship, or emphasizing the depiction of adult human genitals."  RCW 9.68.130(2).  An exception is provided for works of art or of anthropological significance.

"Dealers", "distributors", and "exhibitors" are defined as "persons engaged in the distribution, sale, or exhibition of printed material, photographs, pictures, or motion pictures."  RCW 9.68.050(4).

There is no definition in chapter 9.68 RCW for "producer."

SUMMARY:

SUBSTITUTE BILL:  This bill provides the victim of a violent sexual offense with a civil cause of action against a producer, dealer, distributor, or exhibitor of violent pornographic material.  The tort created by this bill requires the plaintiff to prove the following elements by a preponderance of the evidence:

(1) plaintiff was a victim of a violent sexual offense under chapter 9A.44 RCW;

(2) defendant is a "producer", "dealer," "distributor", or "exhibitor";

(3) the material produced, sold, distributed, or exhibited by the defendant was "erotic material" or "sexually explicit material";

(4) the erotic or sexually explicit material depicted acts or representations of acts that would constitute one of several enumerated violent crimes under chapter 9A.32, 9A.36, or 9A.44 RCW;

(5) the person convicted of the crime read or viewed such erotic or sexually explicit material prior to committing the crime; and

(6) such prior reading or viewing was a proximate cause of the commission of the crime.

Liability insurance policies in effect on or after the effective date of this bill are deemed not to provide coverage for the liability imposed by this bill unless such coverage is explicitly provided by endorsement.

SUBSTITUTE BILL COMPARED TO ORIGINAL:  The substitute bill specifies that both the conviction and the erotic or sexually explicit material must reflect acts of violence.  The substitute also adds a subsection under which liability insurance policies are deemed not to provide coverage for this liability unless such coverage is specifically provided by endorsement.

Fiscal Note:      Not Requested.

House Committee ‑ Testified For:    (Original Bill, in part) Keith Kessler, Washington State Trial Lawyers Association.

House Committee - Testified Against:      Bob Seeber, Washington Publications Distributors Association; Basil Badley, American Insurance Association; Gordon Walgren, Motion Pictures Distributors; Bill Fritz, Motion Picture Producers Association; Shirley Feldman-Summers, ACLU/Private Practice Psychologist.

House Committee - Testimony For:    Victims of injury should have a vehicle for recompense from anyone who causes injury.

House Committee - Testimony Against:      The bill is unconstitutional due to vagueness and overbreadth.  The bill will have a chilling effect on first amendment rights.  The bill will promote litigation and saddle the affected industry with legal costs.  The bill will cause non-obscene books to be pulled from the shelves.  There is no scientific evidence of a causal connection between viewing of pornography and criminal behavior.