AN ACT
Relating to the well-being of children; adding new sections to chapter 9.68
RCW; repealing RCW 9.68.015, 9.68.050, 9.68.060, 9.68.070, 9.68.080, 9.68.090,
9.68.100, 9.68.110, 9.68.120, 9.68.130, 9.68A.140, 9.68A.150, and 9.68A.160;
and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. As used
in sections 1 through 6 of this act, the following terms have the meanings
indicated unless the context clearly requires otherwise.
(1)
"Minor" means any person under the age of eighteen years.
(2)
"Harmful to minors" means any matter or live performance:
(a)
That the average adult person, applying contemporary community standards, would
find, when considered as a whole, appeals to the prurient interest of minors;
and
(b)
That explicitly depicts or describes, by prevailing standards in the adult
community with respect to what is suitable for minors, patently offensive
representations or descriptions of:
(i)
Ultimate sexual acts, normal or perverted, actual or simulated; or
(ii)
Masturbation, fellatio, cunnilingus, bestiality, excretory functions, lewd
exhibition of the genitals or genital area, sexually explicit conduct, sexual
excitement, or sexually explicit nudity; or
(iii)
Sexual acts that are violent or destructive, including but not limited to human
or animal mutilation, dismemberment, rape, or torture; and
(c)
That, when considered as a whole, and in the context in which it is used, lacks
serious literary, artistic, political, or scientific value for minors.
(3)
"Matter" means a motion picture film, a publication, a sexual device,
or any combination thereof.
(4)
"Motion picture film" means any:
(a)
Film or plate negative;
(b)
Film or plate positive;
(c)
Film designed to be projected on a screen for exhibition;
(d)
Film, glass slides, or transparencies, either in negative or positive form,
designed for exhibition by projection on a screen;
(e)
Video tape; or
(f)
Any other medium used to electronically transmit or reproduce images on a
screen.
(5)
"Publication" means any book, magazine, article, pamphlet, writing,
printing illustration, picture, sound recording, telephonic communication, or
coin-operated machine.
(6)
"Sexual device" means any artificial device primarily designed,
promoted, or marketed to physically stimulate or manipulate the human genitals.
(7)
"Live performance" means any play, show, skit, dance, or other
exhibition performed or presented to or before an audience of one or more, in
person or by electronic transmission, or by telephonic communication, with or
without consideration.
(8)
"Person" means any individual, partnership, firm, association,
corporation, or other legal entity.
(9)
"Knowledge of its character" means that the person has knowledge that
the matter or performance contains, depicts, or describes activity or conduct
that is patently offensive under subsection (2)(b) of this section. Such
knowledge may be proved by direct or circumstantial evidence, or both.
(10)
"Knowledge" means knowledge as defined in RCW 9A.08.010(1)(b).
(11)
"Community" means the state-wide community.
NEW
SECTION. Sec. 2. No person
shall with knowledge of its character:
(1)
Display matter that is harmful to minors, as defined in section 1(2) of this
act, in such a way that minors, as part of the invited general public, will be
exposed to view such matter; however, a person shall be deemed not to have
displayed matter harmful to minors if the matter is kept behind devices
commonly known as blinder racks so that the lower two-thirds of the matter is
not exposed to view. In the case of on-line accessibility to information
stored in an electronic form, a person shall be deemed not to have displayed
matter harmful to minors if:
(a)
The matter is stored in a restricted area where access is allowed only to
persons who are reasonably believed to be eighteen years of age or older based
on information supplied as provided for in section 3(3) of this act and who
have obtained a password or other authorization necessary for access to the
matter; or
(b) It
is not reasonably possible to restrict access in the manner described in (a) of
this subsection;
(2)
Sell, furnish, present, distribute, allow to view or hear, or otherwise
disseminate to a minor, with or without consideration, any matter that is
harmful to minors as defined in section 1(2) of this act; or
(3)
Present to a minor or participate in presenting to a minor, with or without
consideration, any live performance that is harmful to minors as defined in
section 1(2) of this act.
NEW
SECTION. Sec. 3. In any
prosecution for violation of section 2 of this act, it shall be an affirmative
defense that:
(1)
The matter or performance involved was displayed or otherwise disseminated to a
minor by the minor's parent or legal guardian, for bona fide purposes;
(2)
The matter or performance involved was displayed or otherwise disseminated to a
minor with the written permission of the minor's parent or legal guardian, for
bona fide purposes; or
(3)
The person made a reasonable bona fide attempt to ascertain the true age of the
minor by requiring production of a driver's license, marriage license, birth
certificate, or other governmental or educational identification card or paper,
or copy thereof if supplied by mail or electronic facsimile when in-person
production thereof is impractical, and not relying solely on the oral
allegations or apparent age of the minor.
NEW
SECTION. Sec. 4. Any
person who is convicted of violating any provision of section 2 of this act is
guilty of a gross misdemeanor. Each day that any violation of section 2 of
this act occurs or continues shall constitute a separate offense and shall be
punishable as a separate violation. Every act, thing, or transaction
prohibited by section 2 of this act shall constitute a separate offense as to
each item, issue, or title involved and shall be punishable as such. For the
purpose of this section, multiple copies of the same identical title, monthly
issue, volume, and number issue, or other such identical material shall constitute
a single offense.
NEW
SECTION. Sec. 5. Nothing
in this chapter shall apply to the official distribution of material by a
recognized historical society or museum, a library of a college or university,
or an archive or library under the supervision and control of the state,
county, municipality, or other political subdivision of the state.
NEW
SECTION. Sec. 6. The state
of Washington hereby fully occupies and preempts within the boundaries of the
state the entire field of regulation and sanctions for displaying, selling,
furnishing, presenting, or otherwise distributing matter or performances that
are harmful to minors. Counties, cities, towns, or other municipalities may
enact only those laws and ordinances relating to matter and performances
harmful to minors that are consistent with this chapter. Local laws and
ordinances that are inconsistent with, more restrictive than, or exceed the
requirements of this chapter shall not be enacted and are preempted and
repealed, regardless of the nature of the code, charter, or home rule status of
such county, city, town, or municipality.
NEW
SECTION. Sec. 7. The
following acts or parts of acts are each repealed:
(1) RCW
9.68.015 and 1959 c 260 s 2;
(2) RCW
9.68.050 and 1992 c 5 s 1 & 1969 ex.s. c 256 s 13;
(3) RCW
9.68.060 and 1992 c 5 s 2 & 1969 ex.s. c 256 s 14;
(4) RCW
9.68.070 and 1992 c 5 s 4 & 1969 ex.s. c 256 s 15;
(5) RCW
9.68.080 and 1969 ex.s. c 256 s 16;
(6) RCW
9.68.090 and 1992 c 5 s 3 & 1969 ex.s. c 256 s 17;
(7) RCW 9.68.100
and 1969 ex.s. c 256 s 18;
(8) RCW
9.68.110 and 1969 ex.s. c 256 s 19;
(9) RCW
9.68.120 and 1969 ex.s. c 256 s 20;
(10) RCW
9.68.130 and 1975 1st ex.s. c 156 s 1;
(11) RCW
9.68A.140 and 1987 c 396 s 1;
(12) RCW
9.68A.150 and 1987 c 396 s 2; and
(13) RCW
9.68A.160 and 1987 c 396 s 3.
NEW
SECTION. Sec. 8. Sections
1 through 6 of this act are each added to chapter 9.68 RCW.
NEW
SECTION. Sec. 9. If any
provision of this act or its application to any person or circumstance is held
invalid, the remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW
SECTION. Sec. 10. This act
is necessary for the immediate preservation of the public peace, health, or
safety, or support of the state government and its existing public
institutions, and shall take effect immediately.
