AN ACT Relating to illustrated material that is harmful to minors; amending RCW 9.68.050, 9.68.060, 9.68.070, 9.68.080, 9.68.100, 9.68.110, and 9.68.120; adding a new section to chapter 9.68 RCW; repealing RCW 9.68.090 and 9.68.130; and prescribing penalties.

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

Sec. 1. Section 13, chapter 256, Laws of 1969 ex. sess. and RCW 9.68.050 are each amended to read as follows:

For the purposes of RCW 9.68.050 through 9.68.120:

(1) "Minor" means any person under the age of eighteen years;

(2) (("Erotic material" means printed material, photographs, pictures, motion pictures, and other material the dominant theme of which taken as a whole appeals to the prurient interest of minors in sex; which is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters or sado-masochistic abuse; and is utterly without redeeming social value;)) "Harmful to minors" means any material:

(a) Which the average adult person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest in minors;

(b) Which has explicit visual depictions which are, by prevailing standards in the adult community with respect to what is suitable for minors, patently offensive representations 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) Violent or destructive sexual acts, including but not limited to human or animal mutilation, dismemberment, rape, or torture; and

(c) Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value for minors.

Harmful to minors material does not include any material which a court has found not to be harmful to minors pursuant to RCW 9.68.060.

(3) "Person" means any individual, corporation, or other organization((;)).

(4) "Dealers", "distributors", and "exhibitors" mean persons engaged in the distribution, sale, or exhibition of ((~~printed material, photographs, pictures,~~)) publications or motion pictures.

(5) "Sexually explicit conduct" means physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, perineum, or, if such person be a female, breast.

(6) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(7) "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; the showing of the female breast with less than a full opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state.

(8) "Material" means a motion picture or a publication, or a combination thereof.

(9) "Motion picture" means any:

(a) Film or plate negative;

(b) Film or plate positive;

(d) Film, glass slides, or transparencies, either in negative or positive form, designed for exhibition by projection on a screen;

(e) Video tape or any other medium used to electronically reproduce images on a screen.

(10) "Publication" means any book, magazine, article, pamphlet, writing, printing, illustration, picture, or coin-operated machine. A publication does not include any book, magazine, article, pamphlet, or writing that has no illustrations, drawings, sketches, photographs, paintings, pictures, or other visual representations.

(11) "Live performance" means any play, show, skit, dance, or other exhibition performed or presented to or before an audience of one or more, with or without consideration.

NEW SECTION. Sec. 2. A new section is added to chapter 9.68 RCW to read as follows:

(1) A person shall not knowingly:

(a) Display matter which is harmful to minors in such a way that minors, as part of the invited general public, will be exposed to view such matter;

(b) Sell, furnish, present, distribute, allow to view, or otherwise disseminate to a minor, with or without consideration, any material which is harmful to minors; or

(c) Present to a minor or participate in presenting to a minor, with or without consideration, any live performance which is harmful to minors.

(2) A person who violates the provisions of subsection (1) of this section is guilty of a gross misdemeanor. Each day that any violation of subsection (1) of this section occurs or continues shall constitute a separate offense and shall be punishable as a separate violation. Every act, thing, or transaction prohibited by subsection (1) of this section shall constitute a separate offense as to each item, issue, or title involved and shall be punishable as such. Multiple copies of the same identical title, monthly issue, volume, and number issue, or other such identical material shall constitute a single offense.

(3) A person does not display material if the material is kept behind devices commonly known as blinder racks so that the lower two-thirds of the material is not exposed to view.

Sec. 3. Section 14, chapter 256, Laws of 1969 ex. sess. and RCW 9.68.060 are each amended to read as follows:

(1) When it appears that material which may be ((~~deemed erotic~~)) harmful to minors is being sold, distributed, or exhibited in this state, ((~~the prosecuting attorney of the county in which the sale, distribution, or exhibition is taking place~~)) any person may ((~~apply to~~)) file a petition with the superior court for a hearing to determine the character of the material with respect to whether it is ((~~erotic~~)) harmful to minors material.

(2) The person filing the petition shall serve notice of the hearing ((~~shall immediately be served~~)) upon the dealer, distributor, or exhibitor selling or otherwise distributing or exhibiting the alleged ((~~erotic~~)) harmful to minors material. The superior court shall hold a hearing not later than five days from the service of notice to determine whether the subject matter is ((~~erotic~~)) harmful to minors material within the meaning of RCW 9.68.050.

(3) If the superior court rules that the subject material is ((~~erotic~~)) harmful to minors material, then, following such adjudication:

(a) If the subject material is ((~~written or printed~~)) a publication, the court shall issue an order requiring that an "adults only" label be placed on the publication, if such publication is going to continue to be distributed. ((~~Whenever~~ )) If the superior court orders ((~~a publication to have~~)) an "adults only" label to be placed ((~~thereon, such~~)) on the publication, the label shall be impressed on the front cover of all copies of ((~~such erotic~~)) the publications sold or otherwise distributed in the state of Washington. ((~~Such~~)) Labels shall be in forty-eight point bold face type located in a conspicuous place on the front cover of the publication. All dealers and distributors are hereby prohibited from displaying ((~~erotic~~)) harmful to minors publications in their store windows, on outside newsstands on public thoroughfares, or in any other manner so as to make them readily accessible to minors.

(b) If the subject material is a motion picture film, the court shall issue an order requiring that ((~~such~~)) the motion picture ((~~shall~~)) be labeled "adults only". ((~~The~~)) An exhibitor shall prominently display a sign saying "adults only" at the place of exhibition, and any advertising of ((~~said~~)) the motion picture shall contain a statement that it is for adults only. ((~~Such~~)) The exhibitor shall also display a sign at the place where admission tickets are sold stating that it is unlawful for minors to misrepresent their age.

((~~(c) Failure to comply with a court order issued under the provisions of this section shall subject the dealer, distributor, or exhibitor to contempt proceedings.~~

(d) Any person who, after the court determines material to be erotic, sells, distributes, or exhibits the erotic material to a minor shall be guilty of violating RCW 9.68.050 through 9.68.120, such violation to carry the following penalties:

~~(i) For the first offense a misdemeanor and upon conviction shall be fined not more than five hundred dollars, or imprisoned in the county jail not more than six months;~~

~~(ii) For the second offense a gross misdemeanor and upon conviction shall be fined not more than one thousand dollars, or imprisoned not more than one year;~~

~~(iii) For all subsequent offenses a felony and upon conviction shall be fined not more than five thousand dollars, or imprisoned not less than one year.~~))

Sec. 4. Section 15, chapter 256, Laws of 1969 ex. sess. and RCW 9.68.070 are each amended to read as follows:

In any prosecution for violation of ((~~RCW 9.68.060~~)) this chapter, it shall be a defense that:

(1) If the violation pertains to a motion picture, the minor was accompanied by a parent, parent's spouse, or guardian; or

(2) ((~~Such~~)) The minor exhibited to the defendant a ((~~draft card,~~)) driver's license, birth certificate, or other official or ((an)) apparently official document purporting to establish ((~~such~~)) that the minor was over the age of eighteen years; or

(3) ((~~Such~~)) The minor was accompanied by a person who represented himself or herself to be a parent, or the spouse of a parent, or a guardian of ((~~such~~)) the minor, and the defendant in good faith relied upon ((~~such~~)) that representation.

Sec. 5. Section 16, chapter 256, Laws of 1969 ex. sess. and RCW 9.68.080 are each amended to read as follows:

(1) ((~~It shall be unlawful for~~)) Any minor ((to)) who misrepresents his or her true age or his or her true status as the child, stepchild, or ward of a person accompanying him or her, for the purpose of purchasing or obtaining access to any harmful to minors material ((~~described in RCW 9.68.050~~)) is guilty of a misdemeanor as provided in chapter 9A.20 RCW.

(2) ((~~It shall be unlawful for~~)) Any person accompanying ((~~such~~)) a minor ((to)) who misrepresents his or her true status as parent, spouse of a parent, or guardian of ((~~any~~)) the minor for the purpose of enabling ((~~such~~)) the minor to purchase or obtain access to harmful to minors material ((~~described in RCW 9.68.050~~)) is guilty of a gross misdemeanor as provided in chapter 9A.20 RCW.

Sec. 6. Section 18, chapter 256, Laws of 1969 ex. sess. and RCW 9.68.100 are each amended to read as follows:

Nothing in ((~~RCW 9.68.050 through 9.68.120~~)) this chapter shall apply to the circulation of any such material by any recognized historical society or museum, the state law library, any county law library, the state library, the public library, any library of any college or university, or to any archive or library under the supervision and control of the state, county, municipality, or other political subdivision.

Sec. 7. Section 19, chapter 256, Laws of 1969 ex. sess. and RCW 9.68.110 are each amended to read as follows:

The provisions of ((~~RCW 9.68.050 through 9.68.120~~)) this chapter shall not apply to acts done in the scope of his or her employment by a motion picture operator or projectionist employed by the owner or manager of a theatre or other place for the showing of motion pictures, unless the motion picture operator or projectionist has a financial interest in such theatre or place wherein he or she is so employed or unless he or she caused to be performed or exhibited such performance or motion picture without the knowledge and consent of the manager or owner of the theatre or other place of showing.

Sec. 8. Section 20, chapter 256, Laws of 1969 ex. sess. and RCW 9.68.120 are each amended to read as follows:

The provisions of ((~~RCW 9.68.050 through 9.68.120~~)) this chapter shall be exclusive.

NEW SECTION. Sec. 9. The following acts or parts of acts are each repealed:

(1) Section 17, chapter 256, Laws of 1969 ex. sess. and RCW 9.68.090; and

(2) Section 1, chapter 156, Laws of 1975 1st ex. sess. and RCW 9.68.130.

NEW SECTION. Sec. 10. 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.