SB-0131, As Passed Senate, May 10, 2005

SUBSTITUTE FOR

SENATE BILL NO. 131

     A bill to prohibit publicly displaying sexually explicit

material; and to provide penalties.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 1. As used in this act:

     (a) "Display" means to exhibit, hold up, present, project,

show, put or set out to view, or make visible.

     (b) "Erotic fondling" means touching a person's clothed or

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

female, breasts, for the purpose of sexual gratification or

stimulation.

     (c) "Nudity" means the lewd and lascivious display of the

female breasts, human male or female genitals, or pubic area.

     (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 excitement" means the condition of human male or

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

     (f) "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.

     (g) "Vehicle" means that term as it is defined in section 79

of the Michigan vehicle code, 1949 PA 300, MCL 257.79.

     Sec. 2. As used in this act:

     (a) "Sexually explicit audible material" means a sound

recording that contains an explicit and detailed verbal description

or aural representation of sexual excitement, erotic fondling,

sexual intercourse, or sadomasochistic abuse.

     (b) "Sexually explicit material" means sexually explicit

visual material or sexually explicit visual material and sexually

explicit audible material.

     (c) "Sexually explicit visual material" means a picture,

photograph, drawing, sculpture, motion picture film, videotape,

compact disc, digital video, or versatile disc or similar form of

visual representation through any technological means that depicts

nudity, sexual excitement, erotic fondling, sexual intercourse, or

sadomasochistic abuse, or a book, magazine, or pamphlet that

contains such a photograph, drawing, or other form of visual

representation.

     Sec. 3. (1) A person is guilty of publicly displaying sexually

explicit material if that person, knowing the nature of the

material, recklessly displays sexually explicit visual material in

a vehicle on a street, highway, or other place open to the general

public or generally accessible to motor vehicles, including an area

designated for the parking of vehicles, when the displaying of that

material is visible to members of the general public outside the

vehicle, either as pedestrians or as individuals in other vehicles

within the line of sight of an average individual, but not more

than 100 feet from the vehicle if all of the following conditions

apply:

     (a) A member of the general public is or would be made to

unwillingly observe the material.

     (b) A member of the general public is or would be incapable of

taking reasonable action to avoid exposure to the material so that

the exposure to the material would constitute more than a remote

and fleeting glimpse of the material.

     (c) The person displaying the material does nothing to stop

the displaying of that material upon having reason to know that a

member of the general public is or would be exposed to the

material.

     (2) A person knows the nature of material if the person either

is aware of its character and content or recklessly disregards

circumstances suggesting its character and content.

     (3) A person is guilty of publicly displaying sexually

explicit material under subsection (1) whether or not any

individual member of the public in particular actually views the

material being displayed, if the displaying of the material occurs

under circumstances in which an individual might reasonably be

expected to observe the material.

     (4) A person who violates this act is responsible or guilty as

follows:

     (a) For a first violation, the person is responsible for a

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

than $1,500.00.

     (b) For a second violation, the person is responsible for a

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

than $5,000.00.

     (c) For a third or subsequent violation, the person is guilty

of a misdemeanor punishable by imprisonment for not more than 93

days or a fine of not more than $10,000.00, or both.

     Sec. 4. If section 3 or part of section 3 is determined by the

court to be unconstitutional, a person is responsible or liable, as

appropriate, for a violation of this act if the person, in a manner

described in section 3, publicly displays material to which 1 or

both of the following apply:

     (a) The material is obscene as that term is defined in section

2 of 1984 PA 343, MCL 752.362.

     (b) The material is harmful to minors, as defined in section 4

of 1978 PA 33, MCL 722.674, and the person knows a minor is

observing the material or that there is a substantial and imminent

likelihood that a minor could reasonably be expected to be

unwillingly exposed to the material and the person does nothing to

stop the displaying of the material.  A person knows the status of

a minor if the person either is aware that the person who views the

material is less than 18 years of age or recklessly disregards a

substantial risk that a person who is able to view the material is

under 18 years of age.

     <<Sec. 5.  Section 3 does not apply to a radio station or television station licensed and regulated by the federal communications commission.>>

     Enacting section 1. This amendatory act takes effect 90 days

after it is enacted into law.