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SB-0416, As Passed House, August 31, 2005

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 416

A bill to amend 1978 PA 33, entitled

"An act to prohibit the dissemination, exhibiting, or displaying of

certain sexually explicit matter to minors; to prohibit certain

misrepresentations facilitating the dissemination of sexually

explicit matter to minors; to provide penalties; to provide for

declaratory judgments and injunctive relief in certain instances;

to impose certain duties upon prosecuting attorneys and the circuit

court; to preempt local units of government from proscribing

certain conduct; and to repeal certain acts and parts of acts,"

by amending the title and sections 1, 2, and 4 (MCL 722.671,

722.672, and 722.674), section 1 as amended by 2003 PA 192, and by

adding section 12a, part II, and a heading for part I; and to

repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

TITLE

An act to prohibit the dissemination, exhibiting, or

displaying of certain sexually explicit matter and ultra-violent

video games to minors; to prohibit certain misrepresentations

facilitating the dissemination of sexually explicit matter and

ultra-violent video games to minors; to provide penalties and

sanctions; to provide for declaratory judgments and injunctive

relief in certain instances; to impose certain duties upon

prosecuting attorneys and the circuit court; to preempt local units

of government from proscribing certain conduct; and to repeal

~~certain~~ acts and parts of acts.

PART I

SEXUALLY EXPLICIT MATTER

Sec. 1. As used in this ~~act~~ part:

(a) "Display" means to put or set out to view or to make

visible.

(b) "Disseminate" means to sell, lend, give, exhibit, show, or

allow to examine or to offer or agree to do the same.

(i) Present a performance.

(ii) Sell, give, or offer to agree to sell or give a ticket to

a performance.

(iii) Admit a minor to premises where a performance is being

presented or is about to be presented.

(d) "Minor" means a person less than 18 years of age.

(e) "Restricted area" means any of the following:

(i) An area where sexually explicit matter is displayed only in

a manner that prevents public view of the lower 2/3 of the matter's

cover or exterior.

(ii) A building, or a distinct and enclosed area or room within

a building, if access by minors is prohibited, notice of the

prohibition is prominently displayed, and access is monitored to

prevent minors from entering.

(iii) An area with at least 75% of its perimeter surrounded by

walls or solid, nontransparent dividers that are sufficiently high

to prevent a minor in a nonrestricted area from viewing sexually

explicit matter within the perimeter if the point of access

provides prominent notice that access to minors is prohibited.

Sec. 2. As used in this ~~act~~ part:

(a) "Nudity" means the lewd display of the human male or

female genitals or pubic area.

(b) "Sexual excitement" means the condition of human male or

female genitals when in a state of sexual stimulation or arousal.

unclothed genitals, pubic area, buttocks, or, if the person is

female, breasts, for the purpose of sexual gratification or

stimulation.

(d) "Sadomasochistic abuse" means either of the following:

(i) Flagellation, or torture, for sexual stimulation or

gratification, by or upon a person who is nude or clad only in

undergarments or in a revealing or bizarre costume.

(ii) The condition of being fettered, bound, or otherwise

physically restrained for sexual stimulation or gratification, of a

person who is nude or clad only in undergarments or in a revealing

or bizarre costume.

(e) "Sexual intercourse" means intercourse, real or simulated,

whether genital-genital, oral-genital, anal-genital, or oral-anal,

whether between persons of the same or opposite sex or between a

human and an animal.

Sec. 4. As used in this ~~act~~ part:

(a) "Harmful to minors" means sexually explicit matter ~~which~~

that meets all of the following criteria:

(i) Considered as a whole, it appeals to the prurient interest

of minors as determined by contemporary local community standards.

(ii) It is patently offensive to contemporary local community

standards of adults as to what is suitable for minors.

(iii) Considered as a whole, it lacks serious literary,

artistic, political, educational, and scientific value for minors.

(b) "Local community" means the county in which the matter was

disseminated.

stimulation or gratification. In determining whether sexually

explicit matter appeals to the prurient interest, the matter shall

be judged with reference to average 17-year-old minors. If it

appears from the character of the matter that it is designed to

appeal to the prurient interest of a particular group of persons,

including, but not limited to, homosexuals or sadomasochists, then

the matter shall be judged with reference to average 17-year-old

minors within the particular group for which it appears to be

designed.

Sec. 12a. This part does not apply to any of the following:

(a) A medium of communication to the extent regulated by the

federal communications commission.

(b) An internet service provider or computer network service

provider that is not selling the sexually explicit matter being

communicated but that provides the medium for communication of the

matter. As used in this section, "internet service provider" means

a person who provides a service that enables users to access

content, information, electronic mail, or other services offered

over the internet or a computer network.

service under terms of service that require the subscriber to meet

both of the following conditions:

(i) The subscriber is not less than 18 years of age at the time

of the subscription.

(ii) The subscriber proves that he or she is not less than 18

years of age through the use of a credit card, through the

presentation of government-issued identification, or by other

reasonable means of verifying the subscriber's age.

PART II

ULTRA-VIOLENT EXPLICIT VIDEO GAMES

Sec. 15. In light of section 51 of article IV of the state

constitution of 1963, which directs that "The public health and

general welfare of the people of the state are hereby declared to

be matters of primary public concern. The legislature shall pass

suitable laws for the protection and promotion of the public

health.", and after hearing from expert witnesses and law

enforcement officials, considering the testimony of expert

witnesses before other legislative bodies, and reviewing dozens of

studies and metastudies of hundreds of studies, the legislature

finds all of the following:

(a) Published research overwhelmingly finds that ultra-violent

explicit video games are harmful to minors because minors who play

ultra-violent explicit video games are consistently more likely to

exhibit violent, asocial, or aggressive behavior and have feelings

of aggression.

(b) Spokespersons for not less than 6 major national health

associations have concluded and testified that after reviewing more

than 1,000 studies, the studies "point overwhelmingly to a causal

connection between media violence and aggressive behavior in some

children", concluding that the effects of media violence on minors

"are measurable and long-lasting".

targeted enforcement efforts reveal that minors are capable of

purchasing, and do purchase, ultra-violent explicit video games.

(d) Law enforcement officers testified about cases of minors

acting out ultra-violent explicit video game behaviors by

victimizing other citizens.

(e) The state has a legitimate and compelling interest in

safeguarding both the physical and psychological well-being of

minors.

(f) The state has a legitimate and compelling interest in

preventing violent, aggressive, and asocial behavior from

manifesting itself in minors.

(g) The state has a legitimate and compelling interest in

directly and substantially alleviating the real-life harms

perpetrated by minors who play ultra-violent explicit video games.

Sec. 16. As used in this part:

(a) "Computer" means any connected, directly interoperable or

interactive device, equipment, or facility that uses a computer

program or other instructions to perform specific operations

including logical, arithmetic, or memory functions with or on

computer data or a computer program and that can store, retrieve,

alter, or communicate the results of the operations to a person,

computer program, computer, computer system, or computer network.

(b) "Computer network" means the interconnection of hardwire

or wireless communication lines with a computer through remote

terminals, or a complex consisting of 2 or more interconnected

computers.

instructions communicated in a form acceptable to a computer that

directs the functioning of a computer, computer system, or computer

network in a manner designed to provide or produce products or

results from the computer, computer system, or computer network.

(d) "Computer system" means a set of related, connected or

unconnected, computer equipment, devices, software, or hardware.

(e) "Device" includes, but is not limited to, an electronic,

magnetic, electrochemical, biochemical, hydraulic, optical, or

organic object that performs input, output, or storage functions by

the manipulation of electronic, magnetic, or other impulses.

(f) "Disseminate" means to sell, lend, give, exhibit, show, or

allow to examine or to offer or agree to do the same.

(g) "Extreme and loathsome violence" means real or simulated

graphic depictions of physical injuries or physical violence

against parties who realistically appear to be human beings,

including actions causing death, inflicting cruelty, dismemberment,

decapitation, maiming, disfigurement, or other mutilation of body

parts, murder, criminal sexual conduct, or torture.

(h) "Harmful to minors" means having all of the following

characteristics:

(i) Considered as a whole, appeals to the morbid interest in

asocial, aggressive behavior of minors as determined by

contemporary local community standards.

(ii) Is patently offensive to contemporary local community

standards of adults as to what is suitable for minors.

(iii) Considered as a whole, lacks serious literary, artistic,

political, educational, or scientific value for minors.

(i) "Local community" means the county in which the video game

was disseminated.

(j) "Minor" means a person less than 17 years of age.

(k) "Morbid interest in asocial, aggressive behavior" means a

morbid interest in committing uncontrolled aggression against an

individual. In determining whether an ultra-violent explicit video

game appeals to this interest, the video game shall be judged with

reference to average 16-year-old minors. If it appears from the

character of the video game that it is designed to appeal to this

interest of a particular group of persons, then the video game

shall be judged with reference to average 16-year-old minors within

the particular group for which it appears to be designed.

(l) "Ultra-violent explicit video game" means a video game that

continually and repetitively depicts extreme and loathsome

violence.

(m) "Video game" means a computer or other device or computer

program that stores or receives data or instructions generated by a

person using the device or program and, by processing the data or

instructions, creates an interactive game capable of being played,

viewed, or otherwise experienced by an individual.

Sec. 17. (1) A person shall not knowingly disseminate to a

minor an ultra-violent explicit video game that is harmful to

minors. Except as provided in subsections (2) and (3), a person who

violates this subsection is responsible for a state civil

infraction and may be ordered to pay a civil fine of not more than

$5,000.00.

(2) A person who violates subsection (1) and who has 1 prior

determination of responsibility under this section is responsible

for a state civil infraction and may be ordered to pay a civil fine

of not more than $15,000.00.

(3) A person who violates subsection (1) and who has 2 or more

prior determinations of responsibility under this section is

responsible for a state civil infraction and may be ordered to pay

a civil fine of not more than $40,000.00. In imposing a fine under

this subsection, the court shall consider the scope of the

defendant's commercial activity in disseminating ultra-violent

explicit video games to minors.

Sec. 18. Section 17 does not apply to the dissemination of an

ultra-violent explicit video game to a minor by any of the

following:

(a) A parent or guardian who disseminates an ultra-violent

explicit video game to his or her child or ward.

(b) An immediate family member of the minor who disseminates

an ultra-violent explicit video game to the minor in the immediate

family member's residence or the minor's residence.

to a minor who is a guest in the individual's residence.

(d) An individual who disseminates an ultra-violent explicit

video game for a legitimate medical, scientific, governmental, or

judicial purpose.

Sec. 19. (1) A person shall not knowingly make a false

representation that he or she is the parent or guardian of a minor,

or that a minor is 17 years of age or older, with the intent to

facilitate the dissemination to the minor of an ultra-violent

explicit video game that is harmful to minors. A person knowingly

makes a false representation as to the age of a minor or as to the

status of being the parent or guardian of a minor if the person

either is aware that the representation is false or recklessly

disregards a substantial risk that the representation is false.

(2) A person who violates subsection (1) is guilty of a

misdemeanor punishable by imprisonment for not more than 93 days or

a fine of not more than $15,000.00, or both.

Sec. 20. A person who possesses managerial responsibility for

a business enterprise renting or selling ultra-violent explicit

video games that are harmful to minors shall not knowingly permit a

minor who is not accompanied by a parent or guardian to play or

view the playing of an ultra-violent explicit video game that is

harmful to minors. A person who violates this section is guilty of

a misdemeanor punishable by imprisonment for not more than 93 days

or a fine of not more than $25,000.00, or both.

Sec. 21. (1) A person knowingly disseminates an ultra-violent

explicit video game to a minor if the person knows both the nature

of the video game and the status of the minor to whom the video

game is disseminated.

(2) A person knows the nature of the video game if the person

either is aware of its character and content or recklessly

disregards circumstances suggesting its character and content.

(3) A person knows the status of a minor if the person either

is aware that the person to whom the dissemination is made is a

minor or recklessly disregards a substantial risk that the person

to whom the dissemination is made is a minor.

Sec. 22. A conviction, sentence, or determination of

responsibility for a violation of this part does not preclude a

conviction, sentence, or determination of responsibility for a

violation of any other law of this state arising from the same

transaction.

Sec. 23. (1) It is an affirmative defense to an alleged

violation under this part that the person acted in good faith.

Except as provided in subsection (2), good faith exists if at the

time the alleged violation occurs all of the following conditions

are satisfied:

(a) The minor shows the person identification that appears to

be valid and that contains a photograph and a date of birth

purporting to show that the minor is 17 years of age or older, or

the service terms of the internet provider of a seller or rental

enterprise that sells or rents ultra-violent explicit video games

over the internet require a purchaser or renter to be 17 years of

age or older if all of the following conditions are met:

(i) The ultra-violent explicit video game is purchased or

rented over the internet.

(ii) The ultra-violent explicit video game is sent to the

purchaser's or renter's home or place of residence or otherwise

made directly available through the internet to the purchaser or

renter.

(iii) The purchaser or renter of the ultra-violent explicit

video game uses a credit card to purchase or rent the ultra-violent

explicit video game.

(b) The person does not have independent knowledge that the

minor is under 17 years of age.

(b), the person complies with a rating system established by the

pertinent entertainment industry that does not conflict with this

part.

(2) If the person possesses managerial responsibility for a

business enterprise, good faith exists if at the time the alleged

violation occurs the business enterprise satisfies all of the

following conditions:

(a) The business enterprise has in existence a policy that its

employees are required to comply with a rating system established

by the pertinent entertainment industry that does not conflict with

this part.

(b) The business enterprise trains its employees to follow the

policy described in subdivision (a).

subdivision (a).

Enacting section 1. This amendatory act takes effect January

1, 2006.

Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 93rd Legislature are

enacted into law:

(a) Senate Bill No. 463.

(b) House Bill No. 4702.