State of Oklahoma 1st Session of the 45th Legislature (1995) Committee Substitute For House Bill No. 1048 By: Perry Committee Substitute An Act relating to crimes and punishments; amending 21 O.S. 1991, Sections 1048.8 and 1040.13, and Sections 1 and 3, Chapter 7 O.S.L. 1992 (21 O.S. Supp 1994, Sections 1040.75 and 1040.77), which relate to pornographic materials and materials harmful to minors; prohibiting computer materials, computer systems and electronic bulletin boards containing material which is pornographic or material harmful to minors; modifying certain definitions; prohibiting certain defenses; providing penalties; requiring certain warning to be placed on certain electronic bulletin board monitors; specifying such warning; requiring certain operators to use due diligence relating to upload material; providing for codification; providing an effective date; and declaring an emergency. Be it enacted by the State of Oklahoma: Section 1 Amendatory 21 O.S. 1991, Section 1040.8 is amended to read as follows: Section 1040.8 No person shall knowingly photograph, act in, pose for, model for, print, sell, offer for sale, give away, exhibit, publish, offer to publish, or otherwise distribute, display, or exhibit any book, magazine, story, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film, computer system, electronic bulletin board, computer software, computer disk, or any other computer material, electronic video game or recording, image, cast, slide, figure, instrument, statue, drawing, presentation, or other article which is obscene, filthy, indecent, lascivious, lewd, or unfit, as defined in Section 1040.12 of this title. In the case of any unsolicited mailing of any of the material listed in this section, the offense is deemed complete from the time such material is deposited in any post office or delivered to any person with intent that it shall be forwarded. The party mailing such material may be indicted and tried in any court wherein such material is deposited or delivered, or in which it is received by the person whom it is addressed. In the case of any solicited or unsolicited placement in a computer system or electronic bulletin board of any of the material listed in this section, the offense is deemed complete from the time such material is accessed by any person. The party placing such material in the computer system or electronic bulletin board may be indicted and tried in any county wherein such material is placed or accessed. Any person who violates any provision of this section, upon conviction, shall be guilty of a misdemeanor and shall be punished by imprisonment in the county jail for not more than one (1) year or by a fine of not more than One Thousand Dollars ($1,000.00), or by both such fine and imprisonment. Section 2 Amendatory 21 O.S. 1991, Section 1040.13, is amended to read as follows: Section 1040.13 Every person who, with knowledge of its contents, sends, transmits, brings, or causes to be sent, transmitted, or brought into this state for sale or commercial distribution, or in this state prepares, sells, exhibits, commercially distributes, gives away, offers to give away, or has in his possession with intent to sell, to commercially distribute, to cause to be placed in a computer system or electronic bulletin board, to exhibit, to give away, or to offer to give away any obscene, lewd, lascivious, filthy, or indecent computer system, electronic bulletin board, computer software, computer disk, or any other computer material, electronic video game, printed or written matter or material or other article, or any article of obscene, lewd, lascivious, filthy or indecent character or for indecent or immoral use, or any mailable or transmittable matter made subject to this section by virtue of the provisions of Section 1040.21 of this title or gives information stating when, where, how, or from whom, or by what means any of these things can be purchased or obtained, upon conviction, is guilty of a misdemeanor and shall be punished by imprisonment in the county jail for not more than one (1) year or by a fine of not more than One Thousand Dollars ($1,000.00), or by both such imprisonment and fine. Section 3 Amendatory Section 1, Chapter 7, O.S.L 1992 (21 O.S. Supp. 1994, Section 1040.75), is amended to read as follows: Section 1040.75 As used in Sections 1040.75 through 1040.77 of this act title: 1. "Minor" means any unmarried person under the age of eighteen (18) years; 2. "Harmful to minors" means 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: a. 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 b. 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 c. the material or performance lacks serious literary, scientific, medical, artistic, or political value for minors; 3. "Nudity" means the: a. showing of the human make 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; 4. "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; 5. "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal; 6. "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; 7. "material" means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, record, recording tape, computer system, electronic bulletin board, computer software, computer disk and other computer, material, or video tape; 8. "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; 9. "Knowingly" means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry or 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; 10 "Person" means any individual, partnership, association, corporation, or other legal entity of any kind; and 11. "A reasonable bona fide attempt" means an attempt to ascertain the true age of the minor by requiring production of a driver's license, marriage license, birth certificate or other governmental or educational identification card or paper not relying solely on he oral allegations or apparent age of the minor. Section 4. New Law A section of law to be codified in the Oklahoma Statutes as Section 1040.76a of Title 21, unless there is created a duplication in numbering, reads as follows: No person shall cause to be placed in a computer system or an electronic bulletin board any material which is harmful to minors. In the case of any solicited or unsolicited placement in a computer system or an electronic bulletin board any of the materials which are harmful to minors, the offense is deemed complete from the time such material is accessed by any minor. The party causing to be placed in any computer system or electronic bulletin board any material harmful to minors may be indicted and tried in any county wherein such material is accessed. The person causing the placement of such material pursuant to this section shall be responsible for verifying that the person accessing such material is not a minor. It is no defense that the person causing such material to be placed is not aware that the person accessing such material is a minor. Section 5 Amendatory Section 3, Chapter 7 O.S.L 1992 (21 O.S. Supp. 1994, Section 1040.77), is amended to read as follows: Section 1040.77 Any person convicted of violating any provision of section 1040.76 of this title or Section 4 of this act shall be guilty of a misdemeanor and shall be fined a sum not exceeding One Hundred Dollars ($100.00). Each day that any violation of Section 1040.76 of this title or Section 4 of this act occurs or continues shall constitute a separate offense and shall be punishable as a separate violation. Every act or transaction prohibited by Section 1040.76 of this title or Section 4 of this act shall constitute a separate offense as to each transmission, item, issue or title involved and shall be punishable as such. For the purpose of this section, multiple copies of the same identical title, monthly issue, volume and number issue or other such identical material as prohibited by Section 1040.76 of this title shall constitute a single offense. Section 6 New Law A section of law to be codified in the Oklahoma Statutes as Section 1040.13a of title 21, unless there is created a duplication in numbering, reads as follows: A. All electronic bulletin board system operators shall place on their systems a conspicuous written warning that shall appear on the user's monitor each time an individual logs on to that electronic bulletin board system. Such warning shall state: "Obscene or pornographic material is illegal in the state of Oklahoma and is not to be placed on this or any other electronic bulletin board system in Oklahoma." B. The electronic bulletin board system operator shall use due diligence in monitoring the material uploaded into such operator's system. c. The provisions of subsection B of this section shall not apply to private electronic mail, otherwise known as E-Mail D. Any violation of the provisions of subsection A or B of this section shall be a misdemeanor. Section 7. This act shall become effective July 1, 1995. Section 8. It is being immediately necessary for the preservation of the public peace, health, and safety, an emergency is hereby declared to exist, by reason whereof this act shall take effect and be in full force from and after its passage and approval.