BILL REQ. #:  H-1128.1 

Read first time 02/23/09.   Referred to Committee on Judiciary.

     AN ACT Relating to the safety and 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, and 9.68A.150; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that sexually explicit materials are harmful to the safety and well-being of children. Such graphic materials contribute to increased sexual activity by children along with higher rates of sexually transmitted diseases, illegitimate pregnancies, and acts of sexual aggression by children against other children. The legislature intends by this act to promote the safety and well-being of children by limiting the ability of children to access sexually explicit materials and to ensure the law reinforces and supports the wishes of parents regarding their children's access to such graphic materials.

NEW SECTION.  Sec. 2   As used in sections 1 through 6 of this act, the following terms have the meanings indicated unless the context clearly requires otherwise.
     (1) "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.
     (2) "Matter" means a motion picture film, a publication, a sexual device, or any combination thereof.
     (3) "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) Videotape; or
     (f) Any other medium used to electronically transmit or reproduce images on a screen.
     (4) "Publication" means any book, magazine, article, pamphlet, writing, printing illustration, picture, sound recording, telephonic communication, or coin-operated machine.
     (5) "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.
     (6) "Knowledge" means knowledge as defined in RCW 9A.08.010(1)(b).
     (7) "Knowledge of its character" means that the person has knowledge that the matter or performance contains, depicts, or describes activity or conduct that may be found to be patently offensive under subsection (1)(b) of this section. Such knowledge may be proved by direct or circumstantial evidence, or both.
     (8) "Minor" means any person under the age of eighteen years.
     (9) "Person" means any individual, partnership, firm, association, corporation, or other legal entity.
     (10) "Sexual device" means any artificial device primarily designed, promoted, or marketed to physically stimulate or manipulate the human genitals.
     (11) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal; or the depiction of covered male genitals in a discernibly turgid state.
     (12) "Sexually explicit conduct" means physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, perineum, or, if such person is a female, breast.
     (13) "Sexually explicit nudity" means the showing of the human male or female genitals, pubic area, buttocks, or perineum with less than a full opaque covering; or the showing of the female breast with less than a full opaque covering of any portion thereof below the top of the nipple.

NEW SECTION.  Sec. 3   No person may with knowledge of its character:
     (1) Display matter that is harmful to minors in such a way that minors, as part of the invited general public, will be exposed to view the matter; however, a person is deemed not to have displayed matter harmful to minors if:
     (a) 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; or
     (b) In the case of an operator who transmits matter that is harmful to minors via cable television transmissions, the operator first notifies the subscriber of the availability of a device that allows a subscriber to prohibit the viewing of a particular cable transmission; or
     (c) In the case of a person who provides a minor with access to a computer containing matter that is harmful to minors stored locally, or that can be connected to the internet, the computer is equipped with specialized filtering software actively installed for the purpose of protecting minors from accessing matter that is harmful to minors; or
     (d) In the case of a person publishing a world wide web page containing matter that is harmful to minors, the web page contains codes or hidden comments that trigger the blocking mechanisms of any browser-filtering software that is designed for the purpose of protecting minors from accessing matter that is harmful to minors; or
     (e) In the case of a person hosting or mirroring internet content on servers located within the state of Washington, the person mandates the inclusion in all web pages of codes or hidden comments that trigger the blocking mechanisms of any browser-filtering software that is designed for the purpose of protecting minors from accessing matter that is harmful to minors; or
     (f) In the case of a person providing electronic communications or telecommunications access or connection to or from a facility, system, or network, whether one-way or interactive, including transmission, downloading, storage, navigational tools, and related capabilities that are incidental to the provision of the electronic communications or telecommunications access or connection, the person mandates the inclusion in all web pages of codes or hidden comments that trigger the blocking mechanisms of any browser-filtering software that is designed for the purpose of protecting minors from accessing matter that is harmful to minors;
     (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; 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.

NEW SECTION.  Sec. 4   In any prosecution for violation of section 3 of this act, it is 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; or
     (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 good faith 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; or
     (4) If engaged in the commercial distribution of material that is harmful to minors by electronic or telephonic transmission, access by persons under eighteen years of age is restricted by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number before transmission of the material.

NEW SECTION.  Sec. 5   (1) A person who is convicted of violating section 3 of this act is guilty of a gross misdemeanor.
     (2) Each day that a violation of section 3 of this act occurs or continues is a separate offense and is punishable as a separate violation.
     (3) Every act, thing, or transaction prohibited by section 3 of this act is a separate offense as to each item, issue, or title involved and is punishable as such.
     (4) For the purpose of this section, multiple copies of the same identical title, monthly issue, volume, and number issue, or other such identical material are a single offense.

NEW SECTION.  Sec. 6   (1) The state of Washington 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.
     (2) 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.
     (3) Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of this chapter may 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 (Obscene literature, shows, etc. -- Exemptions) and 1959 c 260 s 2;
     (2) RCW 9.68.050 ("Erotic material" -- Definitions) and 1992 c 5 s 1 & 1969 ex.s. c 256 s 13;
     (3) RCW 9.68.060 ("Erotic material" -- Determination by court--Labeling -- Penalties) and 2003 c 53 s 41, 1992 c 5 s 2, & 1969 ex.s. c 256 s 14;
     (4) RCW 9.68.070 (Prosecution for violation of RCW 9.68.060--Defense) and 1992 c 5 s 4 & 1969 ex.s. c 256 s 15;
     (5) RCW 9.68.080 (Unlawful acts) and 1969 ex.s. c 256 s 16;
     (6) RCW 9.68.090 (Civil liability of wholesaler or wholesaler-distributor) and 1992 c 5 s 3 & 1969 ex.s. c 256 s 17;
     (7) RCW 9.68.100 (Exceptions to RCW 9.68.050 through 9.68.120) and 1969 ex.s. c 256 s 18;
     (8) RCW 9.68.110 (Motion picture operator or projectionist exempt, when) and 1969 ex.s. c 256 s 19;
     (9) RCW 9.68.120 (Provisions of RCW 9.68.050 through 9.68.120 exclusive) and 1969 ex.s. c 256 s 20;
     (10) RCW 9.68.130 ("Sexually explicit material" -- Defined -- Unlawful display) and 1975 1st ex.s. c 156 s 1; and
     (11) RCW 9.68A.150 (Allowing minor on premises of live erotic performance--Definitions -- Penalty) and 2003 c 53 s 43 & 1987 c 396 s 2 are each repealed.

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 takes effect immediately.