ENROLLED HOUSE
BILL NO. 3456 By: Moore, Conley, Bashore, West (Kevin), Baker, and Kerbs of the House
and
Howard of the Senate
An Act relating to crimes and punishments; amending 21 O.S.
2021, Sections 1040.75 and 1040.76, which relate to the display of materials
harmful to minors; modifying scope of certain definitions; deleting
definitions; providing findings and statement of legislative intent; and
providing an effective date.
SUBJECT:
Crimes and punishments
BE IT
ENACTED BY THE PEOPLE OF THE STATE OF
SECTION 1.
AMENDATORY 21 O.S. 2021,
Section 1040.75, is amended to read as follows:
Section 1040.75 As used
in Sections 1040.75 through 1040.77 of this title:
1.
"Minor" means any unmarried person under the age of
eighteen (18) years;
2.
"Harmful to minors" means:
a. that
quality of any description, exhibition, presentation or representation, in
whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic
abuse when the material or performance, taken as a whole, has the following
characteristics:
(1) the
average person eighteen (18) years of age or older applying contemporary
community standards would find that the material or performance has a
predominant tendency to appeal to a prurient interest in sex to minors, and
(2) the
average person eighteen (18) years of age or older applying contemporary
community standards would find that the material or performance depicts or
describes nudity, sexual conduct, sexual excitement or sadomasochistic abuse in
a manner that is patently offensive to prevailing standards in the adult
community with respect to what is suitable for minors, and
(3) the
material or performance lacks serious literary, scientific, medical, artistic,
or political value for minors, or
b. any
description, exhibition, presentation or representation, in whatever form, of
inappropriate violence;
3.
"Inappropriate violence" means any description or
representation, in an interactive video game or computer software, of violence
which, taken as a whole, has the following characteristics:
a. the
average person eighteen (18) years of age or older applying contemporary
community standards would find that the interactive video game or computer
software is patently offensive to prevailing standards in the adult community
with respect to what is suitable for minors, and
b. the
interactive video game or computer software lacks serious literary, scientific,
medical, artistic, or political value for minors based on, but not limited to,
the following criteria:
(1) is
glamorized or gratuitous,
(2) is
graphic violence used to shock or stimulate,
(3) is
graphic violence that is not contextually relevant to the material,
(4) is
so pervasive that it serves as the thread holding the plot of the material
together,
(5) trivializes
the serious nature of realistic violence,
(6) does
not demonstrate the consequences or effects of realistic violence,
(7) uses
brutal weapons designed to inflict the maximum amount of pain and damage,
(8) endorses
or glorifies torture or excessive weaponry, or
(9) depicts
lead characters who resort to violence freely;
4.
"Nudity" means the:
a. showing
of the human male or female genitals, pubic area, or buttocks with less than a
full opaque covering,
b. showing
of the female breast with less than a full opaque covering of any portion of
the female breast below the top of the nipple, or
c. depiction
of covered male genitals in a discernibly turgid state;
5.
"Sexual conduct" means acts of masturbation, homosexuality,
sexual intercourse, or physical contact with a person's clothed or
unclothed genitals, pubic area, buttocks, or, if such person be a female,
breast, or fellatio, cunnilingus, anal intercourse, or any other intrusion,
however slight, of any part of a person's body or of any object into the
genital or anal openings of another person's body, or depictions or
descriptions of sexual bestiality, sadomasochism, masturbation, or excretory
functions;
6.
"Sexual excitement" means the condition of human male or
female genitals when in a state of sexual stimulation or arousal;
7.
"Sadomasochistic abuse" means flagellation or torture by or
upon a person clothed or naked or the condition of being fettered, bound or
otherwise physically restrained on the part of one so clothed or naked;
8.
"Material" means anything tangible that is capable of being
used or adapted to arouse prurient interest, whether through the medium of
reading, observation, sound, or in any other manner including, but not limited
to, anything printed or written, any book, magazine, newspaper, pamphlet, poster,
print, picture, figure, image, description, drawing, pictorial
representation, motion picture film, record, recording tape, CD-ROM
disk, Magnetic Disk Memory, Magnetic Tape Memory, photograph, video
tape, computer software or video disk, film, transparency, slide,
audiotape, audio disk, computer tape, video game, or any other medium
used to electronically produce or reproduce images on a screen, or any
mechanical, chemical, or electronic reproduction. Material includes undeveloped photographs,
molds, printing plates, and other latent representational objects whether or
not processing or other acts are required to make the content of the material
apparent;
9.
"CD-ROM" means a compact disk with read only memory which
has the capacity to store audio, video and written materials and may be used by
computer to play or display materials harmful to minors;
10.
"Magnetic Disk Memory" means a memory system that stores and
retrieves binary data on record-like metal or plastic disks coated with a
magnetic material, including but not limited to floppy diskettes;
11.
"Magnetic Tape Memory" means a memory system that stores and
retrieves binary data on magnetic recording tape;
12.
"Performance" means any motion picture, film, video tape,
played record, phonograph or tape, preview, trailer, play, show, skit, dance,
or other exhibition performed or presented to or before an audience of one or
more, with or without consideration;
13. 10. "Knowingly" means having general
knowledge of, or reason to know, or a belief or ground for belief which
warrants further inspection or inquiry of both:
a. the
character and content of any material or performance which is reasonably
susceptible of examination by the defendant, and
b. the
age of the minor. However, an honest
mistake, shall constitute an excuse from liability pursuant to this act if the
defendant made a reasonable bona fide attempt to ascertain the true age of such
minor;
14. 11. "Person" means any individual,
partnership, association, corporation, or other legal entity of any kind; and
15. 12. "A reasonable bona fide attempt"
means an attempt to ascertain the true age of the minor by requiring production
of a driver license, marriage license, birth certificate or other governmental
or educational identification card or paper and not relying solely on the oral
allegations or apparent age of the minor.
SECTION 2.
AMENDATORY 21 O.S. 2021,
Section 1040.76, is amended to read as follows:
Section 1040.76 The
Legislature finds that protecting minor children from overtly sexual and
violent content is a legitimate objective that should be actively enforced.
The Legislature further finds that the protection of the right
of the people to engage in the freedom of speech and expression is a sacred
right in the United States; however, such performances and materials may not
contain depictions of sexual conduct, nudity, or inappropriate violence which
are harmful to minor children.
Therefore, it is the intent of the Legislature that these
provisions be diligently enforced to protect minor children while also
protecting the free speech rights of the public.
No person, including but not limited to any persons having
custody, control or supervision of any commercial establishment, shall
knowingly:
1.
Display material which is harmful to minors in such a way that minors, as
a part of the invited general public, will be exposed to view such
material. Provided, however, a person
shall be deemed not to have "displayed" material harmful to minors if
the material is kept behind devices commonly known as "blinder racks"
so that the lower two-thirds (2/3) of the material is not exposed to view;
2.
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
3.
Present to a minor or participate in presenting to a minor, with or
without consideration, any performance which is harmful to a minor.
SECTION 3.
This act shall become effective November 1, 2024.
Passed the
House of Representatives the 4th day of March, 2024.
Presiding
Officer of the House
of
Representatives
Passed the Senate the 23rd day of
April, 2024.
Presiding
Officer of the Senate
OFFICE OF THE GOVERNOR
Received by the Office
of the Governor this ____________________ day of ___________________,
20_______, at _______ o'clock _______ M.
By:
_________________________________
Approved by the
Governor of the State of Oklahoma this _________ day of ___________________,
20_______, at _______ o'clock _______ M.
_________________________________
Governor of
the State of Oklahoma
OFFICE
OF THE SECRETARY OF STATE
Received by the Office
of the Secretary of State this __________ day of ___________________,
20_______, at _______ o'clock _______ M.
By:
_________________________________