First Regular Session

Sixty-first General Assembly

LLS NO. 97­0459.01 JAP HOUSE BILL 97­1043

STATE OF COLORADO

BY REPRESENTATIVE Arrington

JUDICIARY

A BILL FOR AN ACT

CONCERNING REGULATION OF SEXUALLY EXPLICIT REPRESENTATIONS THAT ARE HARMFUL TO MINORS.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Recognizes the state's interest in protecting children from access to certain sexually explicit materials and specifies that the general assembly's intent is to prohibit access to these materials by children without unconstitutionally inhibiting access by adults. Specifically allows municipalities to adopt ordinances concerning materials or performances that are harmful to minors.

Specifies criteria for determining whether material or a performance is harmful to minors.

Makes it a class 1 petty offense for a person, in displaying in a commercial establishment any materials that are harmful to minors, to fail to take commercially feasible measures to prevent the display of such materials to minors. Specifies examples of what may constitute commercially feasible measures. Makes it a class 2 misdemeanor to disseminate to a minor any material that is harmful to minors or to allow a minor to view any performance that is harmful to minors. Specifies affirmative defenses.

Specifies the severability of provisions in the act.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  Part 5 of article 7 of title 18, Colorado Revised Statutes, 1986 Repl. Vol., is REPEALED AND REENACTED, WITH AMENDMENTS, to read:

PART 5

SEXUALLY EXPLICIT REPRESENTATIONS

HARMFUL TO CHILDREN

18­7­501.  Legislative declaration. (1)  BOTH THE UNITED STATES AND COLORADO SUPREME COURTS HAVE HELD THAT A STATE'S INTEREST IN PROTECTING THE WELL­BEING OF CHILDREN PERMITS THE STATE GREATER LATITUDE IN ADOPTING RESTRICTIONS THAT LIMIT CHILDREN'S ACCESS TO SEXUALLY EXPLICIT MATERIALS THAN IN LIMITING ADULT ACCESS TO SUCH MATERIALS. THEREFORE, THE PURPOSE OF THIS PART 5 IS TO ENACT REASONABLE TIME, PLACE, AND MANNER RESTRICTIONS TO FURTHER THIS COMPELLING GOVERNMENTAL INTEREST. THE DISSEMINATION REGULATIONS OF THIS PART 5 ARE DESIGNED TO PREVENT THE SALE TO MINORS OF MATERIALS DEEMED LEGALLY OBSCENE AS TO MINORS, BUT NOT AS TO ADULTS. SIMILARLY, THE PERFORMANCE PROVISIONS OF THIS PART 5 ARE DESIGNED TO PREVENT MINORS FROM BEING EXPOSED TO SEXUALLY EXPLICIT PERFORMANCES THAT ARE NOT APPROPRIATE FOR MINORS. THE PURPOSE OF THE DISPLAY REGULATIONS OF THIS PART 5 IS TO ESTABLISH A NARROWLY DRAWN PROVISION PREVENTING THE DISPLAY OF MATERIAL TO MINORS THAT IS HARMFUL TO MINORS, WHICH PROVISION HAS ONLY AN INCIDENTAL EFFECT ON THE RIGHT OF ADULTS TO SELL ADULT MATERIALS AND AN ADULT'S ABILITY TO PURCHASE THEM.

(2)  IT IS NOT THE INTENT OF THE GENERAL ASSEMBLY IN THE ADOPTION OF THIS PART 5 TO PREEMPT THE POWER OF MUNICIPALITIES TO ADOPT ORDINANCES CONCERNING MATERIALS OR PERFORMANCES THAT ARE HARMFUL TO MINORS.

18­7­502.  Definitions. AS USED IN THIS PART 5, UNLESS THE CONTEXT OTHERWISE REQUIRES:

(1)  "MATERIAL" MEANS ANY PICTURE, DRAWING, VIDEO RECORDING, FILM, BOOK, MAGAZINE, OR OTHER WRITTEN OR ELECTRONIC DEPICTION, DESCRIPTION, OR REPRESENTATION.

(2)  "MINOR" MEANS ANY PERSON WHO IS LESS THAN EIGHTEEN YEARS OLD AND IS NOT MARRIED OR JUDICIALLY EMANCIPATED.

(3)  "NUDITY" MEANS THE SHOWING OF:

(a)  UNCOVERED, OR LESS THAN OPAQUELY COVERED, HUMAN GENITALS, PUBIC AREA, OR BUTTOCKS OR THE NIPPLE OR ANY PORTION OF THE AREOLA OF THE HUMAN FEMALE BREAST; OR

(b)  COVERED HUMAN MALE GENITALS IN A DISCERNIBLY TURGID STATE.

(4)  "PERFORMANCE" MEANS A PLAY, DANCE, OR OTHER LIVE EXHIBITION.

(5)  "SEXUAL ACTIVITY" MEANS ANY OF THE FOLLOWING ACTS:

(a)  MASTURBATION, WHETHER PERFORMED ALONE OR WITH ANOTHER HUMAN OR AN ANIMAL;

(b)  VAGINAL, ANAL, OR ORAL INTERCOURSE, WHETHER PERFORMED WITH ANOTHER HUMAN OR WITH AN ANIMAL;

(c)  TOUCHING, IN AN ACT OF APPARENT SEXUAL STIMULATION OR SEXUAL ABUSE, OF THE CLOTHED OR UNCLOTHED GENITALS, PUBIC AREA, OR BUTTOCKS OF ANOTHER PERSON OR THE CLOTHED OR UNCLOTHED BREASTS OF A HUMAN FEMALE;

(d)  TORTURE, PHYSICAL RESTRAINT BY BEING FETTERED OR BOUND, OR FLAGELLATION THAT IS INTENDED TO DEPICT SEXUAL STIMULATION OR SEXUAL ABUSE;

(e)  EXCRETORY FUNCTIONS THAT ARE INTENDED AS AN ACT OF APPARENT SEXUAL STIMULATION OR SEXUAL ABUSE; OR

(f)  THE INSERTION OF ANY PART OF A PERSON'S BODY OR OF ANY OBJECT INTO ANOTHER PERSON'S ANUS OR VAGINA, EXCEPT WHEN DONE AS PART OF A GENERALLY RECOGNIZED MEDICAL PROCEDURE.

18­7­503.  Harmful to minors ­ standard. (1)  ANY MATERIAL OR PERFORMANCE IS DEEMED HARMFUL TO MINORS IF SAID MATERIAL OR PERFORMANCE DEPICTS NUDITY OR SEXUAL ACTIVITY AND IF SAID MATERIAL OR PERFORMANCE, WHEN TAKEN AS A WHOLE, MEETS THE FOLLOWING CRITERIA:

(a)  AN AVERAGE ADULT PERSON APPLYING CONTEMPORARY COMMUNITY STANDARDS TO THE MATERIAL OR PERFORMANCE WOULD FIND THAT THE MATERIAL OR PERFORMANCE HAS A PREDOMINANT TENDENCY TO APPEAL TO THE PRURIENT INTEREST OF MINORS; AND

(b)  AN AVERAGE ADULT PERSON APPLYING CONTEMPORARY COMMUNITY STANDARDS WOULD FIND THAT THE DEPICTION OF NUDITY OR SEXUAL ACTIVITY IN THE MATERIAL OR PERFORMANCE IS PATENTLY OFFENSIVE TO PREVAILING STANDARDS IN THE ADULT COMMUNITY CONCERNING WHAT IS SUITABLE FOR MINORS; AND

(c)  A REASONABLE ADULT PERSON WOULD FIND THAT THE MATERIAL OR PERFORMANCE LACKS SERIOUS LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE FOR MINORS.

18­7­504.  Displaying material harmful to minors ­ penalty. (1)  A PERSON COMMITS THE OFFENSE OF DISPLAYING MATERIAL THAT IS HARMFUL TO MINORS IF, HAVING CUSTODY, CONTROL, OR SUPERVISION OF A COMMERCIAL ESTABLISHMENT AND KNOWING THE CHARACTER OR CONTENT OF THE MATERIAL, THE PERSON FAILS TO TAKE COMMERCIALLY FEASIBLE MEASURES TO PREVENT THE DISPLAY OF MATERIAL THAT IS HARMFUL TO MINORS IN THOSE AREAS WHERE SAID MATERIAL MAY BE OPEN TO VIEW BY MINORS AS PART OF THE INVITED GENERAL PUBLIC.

(2)  FOR PURPOSES OF THIS SECTION, EXAMPLES OF COMMERCIALLY FEASIBLE MEASURES TO PREVENT THE DISPLAY OF MATERIAL THAT IS HARMFUL TO MINORS MAY INCLUDE BUT ARE NOT LIMITED TO:

(a)  PLACING MATERIAL THAT IS HARMFUL TO MINORS BEHIND A SALES COUNTER WHERE IT WILL NOT BE READILY ACCESSIBLE BY MINORS;

(b)  PLACING AN OPAQUE COVER OVER ANY MATERIAL THAT IS HARMFUL TO MINORS THAT INCLUDES A SEXUALLY EXPLICIT DEPICTION ON THE COVER; AND

(c)  MOVING MATERIAL THAT IS HARMFUL TO MINORS AWAY FROM DISPLAY WINDOWS WHERE IT WOULD OTHERWISE BE SEEN BY MINORS.

(3)  DISPLAYING MATERIAL THAT IS HARMFUL TO MINORS IS A CLASS 1 PETTY OFFENSE. EACH DAY THAT A PERSON COMMITS THE OFFENSE OF DISPLAYING MATERIAL THAT IS HARMFUL TO MINORS CONSTITUTES A SEPARATE OFFENSE.

(4)  IF ANY PROVISION OF THIS SECTION OR THE APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCES IS HELD INVALID, SUCH INVALIDITY SHALL NOT AFFECT THE REMAINING PROVISIONS OF THIS PART 5 WHICH MAY BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR APPLICATION, AND TO THIS END, THE PROVISIONS OF THIS SECTION ARE DECLARED TO BE SEVERABLE FROM THE REMAINING PROVISIONS OF THIS PART 5.

18­7­505.  Disseminating material or exhibiting a performance that is harmful to minors ­ penalty. (1)  A PERSON COMMITS THE OFFENSE OF DISSEMINATING MATERIAL THAT IS HARMFUL TO MINORS IF, WITH OR WITHOUT CONSIDERATION AND KNOWING THE CHARACTER OR CONTENT OF THE MATERIAL, THE PERSON:

(a)  SELLS, FURNISHES, PRESENTS, OR DISTRIBUTES TO A MINOR ANY MATERIAL THAT IS HARMFUL TO MINORS; OR

(b)  ALLOWS A MINOR TO REVIEW OR PERUSE ANY MATERIAL THAT IS HARMFUL TO MINORS.

(2)  A PERSON COMMITS THE OFFENSE OF EXHIBITING A PERFORMANCE THAT IS HARMFUL TO MINORS IF, WITH OR WITHOUT CONSIDERATION AND KNOWING THE CHARACTER OR CONTENT OF THE PERFORMANCE, THE PERSON ALLOWS A MINOR TO VIEW A LIVE PERFORMANCE THAT IS HARMFUL TO MINORS.

(3)  EXCEPT AS PROVIDED IN PARAGRAPH (b) OF SUBSECTION (4) OF THIS SECTION, A MISTAKE AS TO A MINOR'S AGE IS NOT A DEFENSE TO PROSECUTION UNDER THIS SECTION.

(4)  IT IS AN AFFIRMATIVE DEFENSE TO PROSECUTION UNDER THIS SECTION THAT:

(a)  THE DEFENDANT WAS A PARENT OR LEGAL GUARDIAN OF THE MINOR;

(b)  BEFORE DISSEMINATING OR EXHIBITING ANY MATERIAL OR PERFORMANCE THAT IS HARMFUL TO MINORS, THE DEFENDANT REQUESTED AND RECEIVED A DRIVER'S LICENSE, STUDENT IDENTIFICATION CARD, OR OTHER PAPER INDICATING THAT THE MINOR TO WHOM THE MATERIAL OR PERFORMANCE WAS DISSEMINATED OR EXHIBITED WAS AT LEAST EIGHTEEN YEARS OLD AND THE DEFENDANT REASONABLY BELIEVED THE MINOR WAS AT LEAST EIGHTEEN YEARS OLD; OR

(c)  THE DISSEMINATION OR EXHIBITION WAS MADE WITH THE PRIOR CONSENT OF A PARENT OR GUARDIAN OF THE MINOR.

(5)  DISSEMINATING MATERIAL THAT IS HARMFUL TO MINORS OR EXHIBITING A PERFORMANCE THAT IS HARMFUL TO MINORS IS A CLASS 2 MISDEMEANOR. EACH INDIVIDUAL DISSEMINATION OF MATERIAL THAT IS HARMFUL TO MINORS AND EACH EXHIBITION OF A PERFORMANCE THAT IS HARMFUL TO MINORS IS A SEPARATE OFFENSE.

18­7­506.  Severability.  IF ANY PROVISION OF THIS PART 5 OR THE APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCES IS HELD INVALID, SUCH INVALIDITY SHALL NOT AFFECT OTHER PROVISIONS OF THIS PART 5 WHICH MAY BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR APPLICATION, AND TO THIS END, THE PROVISIONS OF THIS PART 5 ARE DECLARED TO BE SEVERABLE.

SECTION 2.  Effective date ­ applicability. This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety­day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution; except that, if a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section, or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor. The provisions of this act shall apply to offenses committed on or after the effective date of this act.