House Bill No. 453

Introduced By arnott, prouse, walters, soft, molnar, adams, ohs, keenan, curtiss, bergman, devaney, grimes, mesaros, rehbein, barnett, burnett, baer, ahner, smith, wiseman, depratu, orr, mills, knox, estrada, mcgee, boharski, mood, hayne

A Bill for an Act entitled: "An Act generally revising AND EXPANDING THE REACH OF the laws relating to materials harmful to minors; AND amending sections 45-8-205, 45-8-207, and 45-8-206, MCA; and repealing section 45-8-207, MCA."

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 45-8-205, MCA, is amended to read:

"45-8-205.   Definitions. As used in 45-8-205 through 45-8-206, 45-8-208, and this section, the following definitions apply:

(1)  "Display or dissemination of obscene material harmful to minors" means that quality of a 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:

(a)  its dominant theme appeals it has a predominant tendency to appeal THE AVERAGE PERSON APPLYING CONTEMPORARY COMMUNITY STANDARDS WOULD FIND THAT, TAKEN AS A WHOLE, IT APPEALS to a minor's prurient interest in sex;

(b)  THE AVERAGE PERSON WOULD FIND THAT it depicts or describes nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a manner that is patently offensive to contemporary COMMUNITY standards in the adult community with respect to what is suitable for minors; and

(c)  A REASONABLE PERSON WOULD FIND THAT, TAKEN AS A WHOLE,it lacks serious literary, scientific, artistic, or political value for minors. If the court finds that the material or performance has serious literary, scientific, artistic, or political value for a significant percentage of normal older minors, the material or performance may not be found to lack such value for the entire class of minors.

(2)  "Material" means a book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, record, recording tape, or videotape, or computer image (except a motion picture or videotape rated G, PG, or PG-13, or R by the motion picture association of America).

(3)  "Minor" means a an unmarried A person under 18 years of age.

(4)  "Newsstand" means a stand that distributes or sells newspapers or magazines.

(5)(4) "Nudity" means the showing of the human male or female genitals, pubic area, or buttocks with less than a full opaque covering or the showing of any portion of the female breast below the top of the nipple with less than a full opaque covering.

(5)(6)(5)  "Performance" means any motion picture, film, or videotape (except a motion picture or videotape rated G, PG, or PG-13, or R by the motion picture association of America); phonograph record; compact disk; computer image; tape recording; preview; trailer; play; show; skit; dance; or other exhibition played or performed before an audience of one or more, with or without consideration.

(6)(7)(6)  "Person" means any individual, partnership, association, corporation, or other legal entity of any kind.

(7)(8)(7)  "Prurient interest in sex" means a shameful or, morbid, LASCIVIOUS, UNHEALTHY, OR LUSTFUL interest in sex or excretion.

(8)(9)(8)  "Sexual conduct" includes:

(a)  vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted. A sexual act is simulated when it gives the appearance of depicting actual sexual activity or the consummation of an ultimate sexual act.

(b)  masturbation, excretory functions, or lewd exhibition of uncovered genitals or female breasts;

(c)  sadomasochistic abuse, meaning an act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in a revealing or bizarre costume.

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

(9)(11)(10)  "Ultimate sexual act" means vaginal or anal sexual intercourse, fellatio, cunnilingus, or bestiality."

Section 2.  Section 45-8-206, MCA, is amended to read:

"45-8-206.   Public display or dissemination of obscene material harmful to minors. (1) A person having custody, control, or supervision of any commercial establishment or newsstand may not knowingly or purposely:

(a)  display obscene material harmful to minors in such a way that minors, as a part of the invited public, will be able to view the material; provided, however, that a person is considered not to have displayed obscene material harmful to minors 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 or other reasonable efforts were made to prevent view of the material by a minor;

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

(c)  present to a minor or participate in presenting to a minor, with or without consideration, any performance that is obscene harmful to minors.

(2)  A person does not violate this section if:

(a)  he the person had reasonable cause to believe the minor was 18 years of age or married. "Reasonable cause" includes but is not limited to being shown a draft card, driver's license, marriage license, birth certificate, educational identification card, governmental identification card, or other official or apparently official card or document purporting to establish that the person is 18 years of age or married;.

(b)  the person is, or is acting as, an employee of a bona fide public school, college, or university or a retail outlet affiliated with and serving the educational purposes of a school, college, or university and the material or performance was disseminated in accordance with policies approved by the governing body of the institution;

(c)  the person is an officer, director, trustee, or employee of a public library or museum and the material or performance was acquired by the library or museum and disseminated in accordance with policies approved by the governing body of the library or museum; or

(d)(B)  an exhibition in a state of nudity is for a bona fide scientific or medical SERIOUS LITERARY, SCIENTIFIC, ARTISTIC, OR POLITICAL purpose for A MINOR AT a bona fide school, library, or museum; or.

(e)  the person is a retail sales clerk with no financial interest in the material or performance or in the establishment displaying or selling the material or performance.

(3) EVIDENCE IS ADMISSIBLE TO SHOW MOTION PICTURE ASSOCIATION OF AMERICA RATINGS OF A MOVIE OR VIDEOTAPE."

NEW SECTION. Section 3.  Repealer. Section 45-8-207, MCA, is repealed.

SECTION 3.  SECTION 45-8-207, MCA, IS AMENDED TO READ:

"45-8-207.   Notice of violation. Before a county attorney may prosecute a person for a continuing violation of 45-8-206, he the county attorney shall determine that there is probable cause to believe that the material or performance is obscene harmful to minors, give the alleged violator person actual notice of the determination, and notice that he will be prosecuted if he does not desist, and determine that the violation continued for at least 3 days after notice was received. The person may seek a declaratory judgment on the question whether the material or performance is obscene to minors. The statute of limitations for the offense is tolled while the declaratory judgment or an appeal from it is pending inform the person that the person should obtain the advice of an attorney as to whether the material or performance is harmful to minors in violation of 45-8-206."

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