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Sub. S. B. No. 144As Passed by the SenateAs Passed by the Senate
125th General Assembly | Regular Session | 2003-2004 |
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SENATORS Austria, Harris, Jacobson, Jordan, Amstutz, Hottinger, Mumper, Spada
A BILL
To amend sections 2907.01 and 2907.31 and to enact sections 3375.351 and 3375.352 of the Revised Code to expand the criminal offense of "disseminating matter harmful to juveniles" to also prohibit selling, providing, presenting, etc., a prepaid adult entertainment card to a juvenile; to prohibit public libraries from using state money or money from a county library and local government support fund for Internet access purposes unless they install specified types of filtering devices or filtering software and require parental approval for a juvenile to borrow library video materials; to allow a public library or its personnel to disable the filtering devices or software to enable a person to have full access to a computer for specified proper purposes; and to make funding of any public library with state money or money from a county library and local government support fund contingent upon its compliance with the filter, notice, and parental approval requirements as to use of prior state money or money from the fund.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2907.01 and 2907.31 be amended and sections 3375.351 and 3375.352 of the Revised Code be enacted 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)
"Harmful to
juveniles"
means that quality of any electronic communication provided or accessed through a prepaid adult entertainment card, any material, or any performance
describing or representing nudity, sexual conduct, sexual
excitement, or sado-masochistic abuse in any form to which all of
the
following apply: (1)
The electronic communication, material, or performance, when
considered as a whole, appeals to the prurient interest
in sex of
juveniles. (2)
The electronic communication, material, or performance is patently offensive to
prevailing standards in the adult community as a whole with
respect to what is suitable for juveniles. (3) The electronic communication, material, or performance, when considered as a whole,
lacks serious literary, artistic, political, and scientific value
for juveniles. (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 electronic communication provided or accessed through a prepaid adult entertainment card,
any material, or any 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 or text appearing on a
computer
monitor,
television
screen, liquid crystal display, or
similar
display
device or an image or text
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.
(N) "Mental health client or patient" has the same meaning as
in section 2305.51 of the Revised Code.
(O) "Mental health professional" has the same meaning as in
section 2305.115 of the Revised Code.
(P) "Sado-masochistic abuse" means flagellation or torture by
or upon a person or the condition of being fettered, bound, or
otherwise
physically restrained.
(Q) "Prepaid adult entertainment card" means either of the following: (1) A product that, by means of a predetermined cardholder identification and a password unique to the card, provides, or permits access to, one or more internet sites containing, including by link or reference to another internet site, any electronic communication that is harmful to juveniles or obscene; (2) A product that, by means of a telephone number and an access code or password unique to the card and for a predetermined number of minutes, provides, or permits access to, an electronic communication that is harmful to juveniles or obscene. (R) "Electronic communication" means any material, performance, message, or information transferred, sent, posted, published, disseminated, or otherwise communicated, any material, performance, information, or data received, or any telecommunication made, through the use of an electronic method of remotely transferring information, including, but not limited to, a computer, computer network, computer program, computer system, or telecommunications device. (S) "Computer," "computer network," "computer program," "computer system," "telecommunication," and "telecommunications device" have the same meanings as in section 2913.01 of the Revised Code.
Sec. 2907.31. (A) No person, with knowledge of its
character or content, shall recklessly do any of the following: (1)
Directly sell, deliver, furnish, disseminate,
provide, exhibit,
rent, or present to a juvenile, a
group of
juveniles, a law enforcement officer
posing as a juvenile, or a
group of law enforcement
officers posing as juveniles any material
or performance that
is
obscene or harmful to juveniles; (2)
Directly offer or agree to sell, deliver, furnish,
disseminate,
provide, exhibit, rent, or present to a
juvenile, a
group of juveniles, a law
enforcement officer posing as a
juvenile, or a group of
law enforcement officers posing as
juveniles any material or
performance that is obscene or harmful
to juveniles; (3)
While in the physical proximity of the juvenile or
law enforcement officer posing as a juvenile, allow any juvenile
or law enforcement officer posing as a juvenile to review or
peruse any material or
view any live performance that is harmful
to juveniles; (4) Directly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present a prepaid adult entertainment card to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles, or directly offer or agree to do so. (B) The following are affirmative defenses to a charge
under division (A)(1), (2), or (3) of
this section that involves material or a performance that
is
harmful to juveniles but not obscene, or to a charge under division (A)(4) of this section: (1) The defendant is the parent, guardian, or spouse of
the
juvenile involved. (2) The juvenile involved, at the time of the conduct in
question, was accompanied by the juvenile's parent or guardian
who and one of the following applies: (a) Regarding a charge under division (A)(1), (2), or (3) of this section, the parent or guardian so accompanying the juvenile,
with
knowledge of its character, consented to the material or
performance being furnished or presented to the juvenile; (b) Regarding a charge under division (A)(4) of this section, the parent or guardian so accompanying the juvenile, with knowledge of the purpose for which the card may be used, consented to the prepaid adult entertainment card being sold, delivered, furnished, disseminated, provided, exhibited, rented, or presented, or being offered or agreed to be sold, delivered, furnished, disseminated, provided, exhibited, rented, or presented, to the juvenile. (3) The juvenile involved exhibited to the defendant or to the
defendant's
agent
or employee a draft card, driver's license,
birth record,
marriage license, or other official or apparently
official
document purporting to show that the juvenile was
eighteen years
of age or over or married, and the person to whom
that document
was exhibited did not otherwise have reasonable
cause to believe
that the juvenile was under the age of eighteen
and unmarried. (C)(1) It is an affirmative defense to a charge under division (A)(1), (2), or (3) of this
section, involving material or a performance that is obscene or
harmful to juveniles, or to a charge under division (A)(4) of this section, that the material or performance involved in the violation of division (A)(1), (2), or (3) of this section or the prepaid adult entertainment card involved in the violation of division (A)(4) of this section was
furnished or presented for a bona fide medical, scientific,
educational, governmental, judicial, or other proper purpose, by
a
physician, psychologist, sociologist, scientist, teacher,
librarian, clergyman, prosecutor, judge, or other proper person. (2) Except as provided in division (B)(3) of this section,
mistake of age is not a defense to a charge under division (A) of this section. (D)(1) A person directly sells, delivers, furnishes,
disseminates, provides, exhibits, rents, or presents or directly
offers or agrees to sell, deliver, furnish, disseminate, provide,
exhibit, rent, or present material or, a performance, or a prepaid adult entertainment card to a
juvenile,
a group of juveniles, a law
enforcement officer posing as a
juvenile, or a group of
law enforcement officers posing as
juveniles in violation of division (A) of this
section by means of an electronic
method of remotely transmitting information if the
person knows or
has reason to believe that the person receiving
the information is
a
juvenile or the group of persons receiving
the information are
juveniles.
(2) A person remotely transmitting information by means
of a
method of mass distribution does not directly sell, deliver,
furnish, disseminate, provide, exhibit, rent, or present or
directly offer or agree to sell, deliver, furnish, disseminate,
provide, exhibit, rent, or present the material or, performance, or card in
question to a juvenile, a group of juveniles,
a law enforcement
officer posing as a juvenile, or a group of law enforcement
officers posing as juveniles in
violation of division (A) of this section if
either of the following applies:
(a) The person has inadequate information to know or have
reason to believe that a particular recipient of the information
or offer is a juvenile.
(b) The method of mass distribution does not provide the
person the ability to prevent a particular recipient from
receiving the information. (E) If any provision of this section, or the application of
any provision of this section to any person or circumstance, is
held invalid, the invalidity does not affect other provisions or
applications of this section or related sections that can be given
effect without the invalid provision or application. To this end,
the provisions are severable.
(F) Whoever violates division (A) of this section is guilty of
disseminating
matter harmful to juveniles and shall be punished as provided in division (F)(1) or (2) of this section. If (1) Disseminating matter harmful to juveniles committed in violation of division (A)(1), (2), or (3) of this section shall be punished as provided in this division. If the material or
performance
involved is harmful to juveniles, except
as otherwise
provided in
this division, a disseminating matter harmful to juveniles committed in
violation of division (A)(1), (2), or (3) of this section is a
misdemeanor of the
first degree.
If the material or performance
involved is obscene,
except as otherwise
provided in this
division, a disseminating matter harmful to juveniles committed in violation of division (A)(1), (2), or (3) of this
section is a felony of
the fifth
degree. If the material or
performance involved is
obscene and
the juvenile to whom it is
sold, delivered,
furnished,
disseminated, provided, exhibited,
rented, or
presented, the
juvenile to whom the offer is made or
who is the
subject of the
agreement, or the juvenile who is
allowed to
review, peruse, or
view it is under thirteen years of
age, disseminating matter harmful to juveniles committed in
violation of division (A)(1), (2), or (3) of this section
is a felony of the fourth degree.
(2) Disseminating matter harmful to juveniles committed in violation of division (A)(4) of this section shall be punished as provided in this division. Except as otherwise provided in this division, disseminating matter harmful to juveniles committed in violation of division (A)(4) of this section is a misdemeanor of the first degree. If the juvenile to whom the prepaid entertainment card is sold, delivered, furnished, disseminated, provided, exhibited, rented, or presented, or the juvenile to whom the offer is made or who is the subject of the agreement, is under thirteen years of age, disseminating matter harmful to juveniles committed in violation of division (A)(4) of this section is a felony of the fifth degree.
Sec. 3375.351. (A) As used in this section and section 3375.352 of the Revised Code:
(1) "Harmful to juveniles" and "material" have the same meanings as in section 2907.01 of the Revised Code.
(2) "Juvenile" means an unmarried person under the age of eighteen.
(3) "Library" means a free public library, including both of the following:
(a) A library that is maintained and regulated under section 715.13 of the Revised Code;
(b) A library that is created, maintained, and regulated under Chapter 3375. of the Revised Code.
(4) "Obscene" has the same meaning as in section 2907.01 of the Revised Code as that division has been construed by the supreme court of this state. (B) The board of library trustees of a library shall not use any state money it has received from any entity or any source, or any money it has received from any county library and local government support fund under Chapter 5705. of the Revised Code, to purchase computers used to access the internet or to pay for direct costs associated with accessing the internet, unless all of the following apply: (1) The board has installed and has operational, subject to division (C) of this section, a filtering device or filtering software that protects against internet access to material that is obscene or harmful to juveniles on each computer located at the library that is accessible to juveniles; (2) The board has installed and has operational, subject to division (C) of this section, a filtering device or filtering software that protects against internet access to material that is obscene on each computer located at the library that is accessible to any patron of the library.
(3) The board has adopted
and enforces a policy prohibiting a juvenile from borrowing from the library any video material unless a parent or guardian, after being notified that some video materials available for borrowing from the library might include materials that are harmful to juveniles, has given permission for the juvenile to borrow video materials. If permission for the juvenile to borrow video materials is given by a parent or guardian to the library, it shall be clearly noted on the library card or other identification documentation that has been issued to the juvenile. The notification to the parent shall be on the application for the library card or for the other identification documentation of the juvenile, if the parent is required to sign the application, or shall be provided in any other manner the board determines to be appropriate. (C) If a board of library trustees of a library installs and has operational a filtering device or filtering software on computers located at the library in accordance with divisions (B)(1) and (2) of this section, upon the request of any person, any administrator, supervisor, or other official or employee of the library may disable or override the device or software on a particular computer to enable the person to have full access to that computer for bona fide research, medical, scientific, educational, governmental, judicial, or other lawful purposes. If the person making the request is eighteen years of age or older, the person is not required to explain, and shall not be asked to explain, the reason or purpose for which the person is requesting full access to the computer. (D) Nothing in this section limits, restricts, or prohibits a board of library trustees of a library, or any administrator, supervisor, or other official or employee of a library, from regulating, limiting, restricting, or prohibiting any person from having access while at the library, on the internet or in any other manner, to material other than material that is obscene or harmful to juveniles.
Sec. 3375.352. No entity shall distribute any state money from any source to a board of public library trustees unless it has received a resolution from the board stating that the library has complied with and will continue to comply with division (B) of section 3375.351 of the Revised Code.
Section 2. That existing sections 2907.01 and 2907.31 of the Revised Code are hereby repealed.
Section 3. (A) Division (B) of section 3375.351 of the Revised Code applies to boards of library trustees one hundred eighty days after the effective date of that section.
(B) Section 3375.352 of the Revised Code applies to the distribution of state money beginning one hundred eighty days after the effective date of that section.
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