SB 416, As Passed Senate

SB-0416, As Passed Senate, May 12, 2005

SUBSTITUTE FOR

SENATE BILL NO. 416

(As amended, May 12, 2005)

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 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~~ exhibition, or display of certain sexually explicit

matter, ultra-violent explicit matter, and ultra-violent explicit

video games to minors; to prohibit certain misrepresentations

facilitating the dissemination of sexually explicit matter and

ultra-violent 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.

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,

Senate Bill No. 416 as amended May 11, 2005

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.

PART II

ULTRA-VIOLENT EXPLICIT MATTER

Sec. 15. The legislature finds all of the following:

(a) Minors who play or watch ultra-violent explicit matter are

more likely to exhibit violent, asocial, or aggressive behavior,

have feelings of aggression, and experience a reduction of activity

in the frontal lobes of the brain, which are responsible for

controlling behavior.

(b) While the video game and motion picture industries have

adopted their own voluntary standards describing which games are

appropriate for minors, those standards are not adequately

enforced.

movies and video games.

(d) The state has a compelling interest in assisting parents

in protecting their minor children from ultra-violent explicit

matter.

(e) The state has a compelling interest in preventing violent,

aggressive, and asocial behavior from manifesting itself in minors.

(f) The state has a compelling interest in preventing

psychological harm to minors who play or view ultra-violent

explicit matter.

(g) The state has a compelling interest in eliminating any

societal factors that may inhibit the physiological and

neurological development of its youth.

(h) The state has a compelling interest in facilitating the

maturation of Michigan children into law-abiding, productive adult

citizens.

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) "Display" means to put or set out to view or make visible.

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

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

(h) "Exhibit" means to do 1 or more of the following:

(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.

(i) "Extreme and loathsome violence" means aggressive acts of

real or simulated realistic 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 in a manner that is especially heinous or atrocious.

(j) "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.

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

disseminated.

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

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

morbid interest in committing uncontrolled aggression against an

individual. In determining whether ultra-violent explicit matter

appeals to this interest, the matter shall be judged with reference

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

the matter that it is designed to appeal to this interest of a

particular group of persons, then the matter shall be judged with

reference to average 16-year-old minors within the particular group

for which it appears to be designed.

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

Senate Bill No. 416 as amended May 11, 2005

(i) An area where ultra-violent explicit matter is displayed

only in a manner that prevents public view of the lower 2/3 of the

matter's cover or exterior, if the cover or exterior itself

contains ultra-violent explicit visual mattter.

(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 ultra-

violent explicit matter within the perimeter if the point of access

provides prominent notice that access to minors is prohibited.

(o) "Ultra-violent explicit matter" means ultra-violent

explicit visual matter, ultra-violent explicit video game, or an

ultra-violent explicit performance.

(p) "Ultra-violent explicit performance" means a motion

picture, exhibition, show, representation, or other presentation

that, in whole or in part, continually and repetitively depicts

extreme and loathsome violence.

(q) "Ultra-violent explicit video game" means a video game

that continually and repetitively depicts extreme and loathsome

violence.

(r) "Ultra-violent explicit visual matter" means a picture,

photograph, drawing, <<or>> sculpture, <<that depicts extreme and

loathsome violence, or a>> motion picture film, or similar

visual representation that continually and repetitively depicts

extreme and loathsome violence, or a book, magazine, or pamphlet

that contains such visual representations. An undeveloped

photograph, mold, or similar visual matter may be ultra-violent

explicit matter even if processing or other acts are required to

make its ultra-violent explicit content apparent.

(s) "Video game" means a computer or other device or 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 ultra-violent explicit visual matter that is harmful to

minors or knowingly exhibit to a minor an ultra-violent explicit

performance that is harmful to minors. Except as provided in

subsections (2) and (3), a person who violates this subsection is

responsible for a civil infraction with a fine of not more than

$5,000.00.

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

conviction of this section or section 18 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.

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

prior convictions of this section or section 18 is guilty of a

felony punishable by imprisonment for not more than 2 years or a

fine of not more than $40,000.00, or both. In imposing a fine

under this subsection, the court shall consider the scope of the

defendant's commercial activity in disseminating ultra-violent

explicit matter or sexually explicit matter to minors.

Sec. 18. (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 civil infraction with

a fine of not more than $5,000.00.

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

conviction of this section or section 17 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.

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

prior convictions of this section or section 17 is guilty of a

felony punishable by imprisonment for not more than 2 years or a

fine of not more than $40,000.00, or both. In imposing a fine

under this subsection, the court shall consider the scope of the

defendant's commercial activity in disseminating ultra-violent

explicit matter or sexually explicit matter to minors.

Sec. 19. Sections 17 and 18 do not apply to the dissemination

of ultra-violent explicit matter to a minor by a parent or guardian

who disseminates ultra-violent explicit matter to his or her child

or ward or any other person who disseminates ultra-violent explicit

matter for a legitimate medical, scientific, governmental, or

judicial purpose.

Sec. 20. (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 ultra-violent explicit

matter 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. 21. A person who possesses managerial responsibility for

a business enterprise renting or selling ultra-violent explicit

visual matter that is harmful to minors or an ultra-violent

explicit performance that is harmful to minors shall not knowingly

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

view that ultra-violent explicit visual matter or ultra-violent

explicit performance or, except in a restricted area, knowingly

display that ultra-violent explicit visual matter or ultra-violent

explicit performance. 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. 22. 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 or, except in a restricted area, knowingly permit

a minor 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

Senate Bill No. 416 as amended May 11, 2005

not more than 93 days or a fine of not more than $25,000.00, or

both.

Sec. 23. (1) A person knowingly disseminates ultra-violent

explicit matter to a minor if the person knows both the nature of

the matter and the status of the minor to whom the matter is

disseminated.

(2) A person knows the nature of the matter 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.

Senate Bill No. 416 as amended May 11 and 12, 2005

<<Sec. 24.>> A conviction or sentence imposed for a violation

of this part does not preclude a conviction or sentence for a

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

transaction.

<<Sec. 25.>> (1) It is an affirmative defense to a charge under

this part that the person acted in good faith. Except as provided

in subsection (2), good faith exists if at the time the charged

offense 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 matter 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 matter is purchased or rented over the internet.

Senate Bill No. 416 as amended May 11 and 12, 2005

(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, including, but not limited to, the rating system for video

games created by the entertainment software rating board or the

rating system for motion pictures created by the motion picture

association of America.

(2) If the person possesses managerial responsibility for a

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

offense 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, including, but not limited to, the rating system for

video games created by the entertainment software rating board or

the rating system for motion pictures created by the motion picture

association of America.

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

policy described in subdivision (a).

subdivision (a).

<<Sec. 26.>> 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 who in good faith, and without knowledge of the content of the matter being communicated, 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.

repealed.

Enacting section 2. This amendatory act takes effect December

1, 2005.

Enacting section 3. 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. 249.

(b) Senate Bill No. 463.

(d) House Bill No. 4702.

(e) House Bill No. 4703.