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Sub. H. B. No. 8As Reported by the House Criminal Justice Committee
As Reported by the House Criminal Justice Committee
124th General Assembly | Regular Session | 2001-2002 |
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REPRESENTATIVES Hughes, Womer Benjamin, Latta, DePiero, S. Smith, Reidelbach, Young, Sykes, Perry, Willamowski, Jerse
A BILL
To amend sections 2907.01 and 2907.35 of the Revised
Code to
expand the
definition of "material" in the
Sex
Offense Laws to include any
image appearing on
a
computer monitor or similar display device or
recorded on a
computer disk,
magnetic tape, or
similar data
storage device and to create
exemptions and an affirmative defense to certain
offenses under
those laws.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2907.01 and 2907.35 of the Revised
Code be
amended to
read as follows:
Sec. 2907.01. As used in sections 2907.01 to 2907.37 of
the
Revised Code: (A) "Sexual conduct" means vaginal intercourse between a
male and female; anal intercourse, fellatio, and
cunnilingus
between persons regardless of sex; and, without privilege to do
so, the insertion, however slight, of any part of the body or any
instrument, apparatus, or other object
into the vaginal or anal
cavity of another. Penetration, however slight, is
sufficient to
complete vaginal or anal intercourse. (B) "Sexual contact" means any touching of an erogenous
zone
of another, including without limitation the thigh,
genitals,
buttock, pubic region, or, if the person is a female, a
breast,
for the purpose of sexually arousing or gratifying either
person. (C) "Sexual activity" means sexual conduct or sexual
contact, or both. (D) "Prostitute" means a male or female who promiscuously
engages in sexual activity for hire, regardless of whether the
hire is paid to the prostitute or to another. (E) Any material or performance is "harmful to juveniles,"
if it is offensive to prevailing standards in the adult community
with respect to what is suitable for juveniles, and if any of the
following apply: (1) It tends to appeal to the prurient interest of
juveniles; (2) It contains a display, description, or representation
of
sexual activity, masturbation, sexual excitement, or nudity; (3) It contains a display, description, or representation
of
bestiality or extreme or bizarre violence, cruelty, or
brutality; (4) It contains a display, description, or representation
of
human bodily functions of elimination; (5) It makes repeated use of foul language; (6) It contains a display, description, or representation
in
lurid detail of the violent physical torture, dismemberment,
destruction, or death of a human being; (7) It contains a display, description, or representation
of
criminal activity that tends to glorify or glamorize the
activity,
and that, with respect to juveniles, has a dominant
tendency to
corrupt. (F) When considered as a whole, and judged with reference
to
ordinary adults or, if it is designed for sexual deviates or
other
specially susceptible group, judged with reference to that
group,
any material or performance is "obscene" if any of the
following
apply: (1) Its dominant appeal is to prurient interest; (2) Its dominant tendency is to arouse lust by displaying
or
depicting sexual activity, masturbation, sexual excitement, or
nudity in a way that tends to represent human beings as mere
objects of sexual appetite; (3) Its dominant tendency is to arouse lust by displaying
or
depicting bestiality or extreme or bizarre violence, cruelty,
or
brutality; (4) Its dominant tendency is to appeal to scatological
interest by displaying or depicting human bodily functions of
elimination in a way that inspires disgust or revulsion in
persons
with ordinary sensibilities, without serving any genuine
scientific, educational, sociological, moral, or artistic
purpose; (5) It contains a series of displays or descriptions of
sexual activity, masturbation, sexual excitement, nudity,
bestiality, extreme or bizarre violence, cruelty, or brutality,
or
human bodily functions of elimination, the cumulative effect
of
which is a dominant tendency to appeal to prurient or
scatological
interest, when the appeal to such an interest is
primarily for its
own sake or for commercial exploitation, rather
than primarily for
a genuine scientific, educational,
sociological, moral, or
artistic purpose. (G) "Sexual excitement" means the condition of human male
or
female genitals when in a state of sexual stimulation or
arousal. (H) "Nudity" means the showing, representation, or
depiction
of human male or female genitals, pubic area, or
buttocks with
less than a full, opaque covering, or of a female
breast with less
than a full, opaque covering of any portion
thereof below the top
of the nipple, or of covered male genitals
in a discernibly turgid
state. (I) "Juvenile" means an unmarried person under the age of
eighteen. (J) "Material" means any book, magazine, newspaper,
pamphlet, poster, print, picture, figure, image, description,
motion picture film, phonographic record, or tape, or other
tangible thing capable of arousing interest through sight, sound,
or touch
and includes an image appearing on a computer monitor,
television
screen, liquid crystal display, or similar display
device or an image
recorded on a computer hard
disk, computer
floppy disk, compact
disk, magnetic tape, or similar data
storage
device. (K) "Performance" means any motion picture, preview,
trailer, play, show, skit, dance, or other exhibition performed
before an audience. (L) "Spouse" means a person married to an offender at the
time of an alleged offense, except that such person shall not be
considered the spouse when any of the following apply: (1) When the parties have entered into a written
separation
agreement authorized by section 3103.06 of the Revised
Code; (2) During the pendency of an action between the parties
for
annulment, divorce, dissolution of marriage, or legal
separation; (3) In the case of an action for legal separation, after
the
effective date of the judgment for legal separation. (M) "Minor" means a person under the age of eighteen.
Sec. 2907.35. (A) An owner or manager, or
his agent or
employee
of an owner or manager, of a bookstore, newsstand,
theater, or
other commercial
establishment engaged in selling
materials or exhibiting
performances, who, in the course of
business: (1) Possesses five or more identical or substantially
similar obscene articles, having knowledge of their character, is
presumed to possess them in violation of division (A)(5) of
section 2907.32 of the Revised Code; (2) Does any of the acts prohibited by section 2907.31 or
2907.32 of the Revised Code, is presumed to have knowledge of the
character of the material or performance involved, if
he
the
owner, manager, or agent or employee of the owner or manager has
actual notice of the nature of
such material or performance,
whether or not
he
the owner, manager, or agent or employee
of the
owner or manager has precise knowledge of its contents. (B) Without limitation on the manner in which such notice
may be given, actual notice of the character of material or a
performance may be given in writing by the chief legal officer of
the jurisdiction in which the person to whom the notice is
directed does business. Such notice, regardless of the manner in
which it is given, shall identify the sender, identify the
material or performance involved, state whether it is obscene or
harmful to juveniles, and bear the date of such notice. (C) Sections 2907.31 and 2907.32 of the Revised Code do
not
apply to a motion picture operator or projectionist acting
within
the scope of
his employment as an employee of the owner or
manager
of a theater or other place for the showing of motion
pictures to
the general public, and having no managerial
responsibility or
financial interest in
his
the operator's or
projectionist's place
of employment, other than wages.
(D)(1) Sections 2907.31, 2907.311, 2907.32, 2907.321,
2907.322, 2907.323, and 2907.34 and division (A) of section
2907.33 of the Revised Code do not apply to a person solely
because the person provided access or connection to or from a
computer facility, system, or network not under that person's
control, including having provided transmission, downloading,
intermediate storage, access software, or other related
capabilities that are incidental to providing access or connection
to or from a computer facility, system, or network, and that do
not include the creation of the content of the material that is
the subject of the access or connection.
(2) Division (D)(1) of this section does not apply to a
person who conspires with an entity actively involved in the
creation or knowing distribution of material in violation of
section 2907.31, 2907.311, 2907.32, 2907.321, 2907.322, 2907.323,
2907.33, or 2907.34 of the Revised Code or who knowingly
advertises the availability of material of that nature.
(3) Division (D)(1) of this section does not apply to a
person who provides access or connection to a computer facility,
system, or network that is engaged in the violation of section
2907.31, 2907.311, 2907.32, 2907.321, 2907.322, 2907.323, 2907.33,
or 2907.34 of the Revised Code and that is owned or controlled by
that person.
(E) An employer is not guilty of a violation of section
2907.31, 2907.311, 2907.32, 2907.321, 2907.322, 2907.323, 2907.33,
or 2907.34 of the Revised Code based on the actions of an employee
or agent of the employer unless the employee's or agent's conduct
is within the scope of employee's or agent's employment or agency,
and the employer does either of the following:
(1) With knowledge of the employee's or agent's conduct, the
employer authorizes or ratifies the conduct.
(2) The employer recklessly disregards the employee's or
agent's conduct.
(F) It is an affirmative defense to a charge under section
2907.31 or 2907.311 of the Revised Code as the section applies to
an image transmitted through the internet that the person charged
with violating the section has taken, in good faith, reasonable,
effective, and appropriate actions under the circumstances to
restrict or prevent access by juveniles to material that is
harmful to juveniles, including any method that is feasible under
available technology.
Section 2. That existing sections 2907.01 and 2907.35 of the
Revised Code
are
hereby repealed.
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