5466-S.E AMH LJ H2692.1

5466-S.E AMH LJ H2692.1

ESSB 5466 - H COMM AMD NOT ADOPTED 4/14/95

By Committee on Law & Justice

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. As used in sections 1 through 5 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) "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.

(4) "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.

(5) "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.

(6) "Matter" means a motion picture film, a publication, a sexual device, or any combination thereof.

(7) "Motion picture film" 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

(f) Any other medium used to electronically transmit or reproduce images on a screen.

(8) "Publication" means any book, magazine, article, pamphlet, writing, printing illustration, picture, sound recording, telephonic communication, or coin-operated machine.

(9) "Sexual device" means any artificial device primarily designed, promoted, or marketed to physically stimulate or manipulate the human genitals.

(10) "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.

(11) "Person" means any individual, partnership, firm, association, corporation, or other legal entity.

(12) "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 (2)(b) of this section. Such knowledge may be proved by direct or circumstantial evidence, or both.

(13) "Knowledge" means knowledge as defined in RCW 9A.08.010(1)(b).

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) Where it is not reasonably possible to restrict access in the manner described in (a) of this subsection, the matter is stored in an area labelled "adults only";

(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. 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. 6. 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. 7. Sections 1 through 5 of this act are each added to chapter 9.68 RCW.

NEW SECTION. Sec. 8. 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. 9. 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.

EFFECT: The following changes are made: (1) Definitions of "sexually explicit nudity," "sexual excitement," and "sexually explicit conduct" are added; (2) sound recordings are included; (3) all exemptions are deleted; (4) adds that matter is not deemed displayed, in the case of on-line access to electronic information, if access is restricted or the material is labeled "adults only;" (5) deletes the provision that states that matter is not deemed to be displayed if it is transmitted by a franchised cable operator and the operator provides a device by which a subscriber can prohibit viewing of a particular service; and (5) adds an emergency clause.