April 21, 2005, Introduced by Senator CROPSEY and referred to the Committee on Judiciary.
A bill to prohibit the dissemination, exhibiting, or
displaying of certain ultra-violent explicit matter to minors; to
prohibit certain misrepresentations facilitating the dissemination
of ultra-violent explicit matter to minors; to provide penalties;
to provide for declaratory judgments and injunctive relief in
certain instances; and to impose certain duties upon prosecuting
attorneys and the circuit court.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. 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.
(c) Minors are capable of purchasing and do purchase violent
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. 2. As used in this act:
(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.
(c) "Computer program" means a series of internal or external
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 depictions of real physical violence against
nonaggressive or otherwise innocent 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.
(j) "Harmful to minors" means ultra-violent explicit matter
which meets all of the following criteria:
(i) Considered as a whole, it appeals to the morbid interest in
asocial, aggressive behavior 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, 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 a
nonaggressive 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:
(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.
(o) "Ultra-violent explicit matter" means ultra-violent
explicit visual material or an ultra-violent explicit performance.
(p) "Ultra-violent explicit performance" means a motion
picture, video game, exhibition, show, representation, or other
presentation that, in whole or in part, continually and
repetitively depicts extreme and loathsome violence.
(q) "Ultra-violent explicit visual material" means a picture,
photograph, drawing, sculpture, motion picture film, video game, 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 material may be ultra-violent
explicit material even if processing or other acts are required to
make its ultra-violent explicit content apparent.
(r) "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. 3. (1) A person is guilty of disseminating ultra-violent
explicit matter to a minor if that person does either of the
following:
(a) Knowingly disseminates to a minor ultra-violent explicit
visual material that is harmful to minors.
(b) Knowingly exhibits to a minor an ultra-violent explicit
performance that is harmful to minors.
(2) 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.
(3) 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.
(4) 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.
(5) A first violation of disseminating ultra-violent explicit
matter to a minor is a civil infraction with a fine of not more
than $5,000.00.
(6) A second violation of disseminating ultra-violent explicit
matter to a minor is a misdemeanor punishable by imprisonment for
not more than 91 days or a fine of not more than $15,000.00, or
both.
(7) A third or subsequent violation of disseminating ultra-
violent explicit matter to a minor is 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 the fine, the court shall consider
the scope of the defendant's commercial activity in disseminating
ultra-violent or sexually explicit matter to minors.
Sec. 4. Section 3 does 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. 5. (1) A person is guilty of facilitative
misrepresentation if the person knowingly makes 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.
(2) 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.
(3) Facilitative misrepresentation is a misdemeanor punishable
by imprisonment for not more than 90 days or a fine of not more
than $15,000.00, or both.
Sec. 6. (1) A person is guilty of displaying ultra-violent
explicit matter to a minor if the person possesses managerial
responsibility for a business enterprise selling ultra-violent
explicit matter that visually depicts ultra-violent visual material
and is harmful to minors, and does either of the following:
(a) Knowingly permits a minor who is not accompanied by a
parent or guardian to view that matter.
(b) Displays that matter knowing its nature, unless the person
does so in a restricted area.
(2) A person knowingly permits a minor to view visual matter
that depicts ultra-violent explicit visual material and is harmful
to minors if the person knows both the nature of the matter and the
status of the minor permitted to examine the matter.
(3) 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.
(4) A person knows the status of a minor if the person either
is aware that the person who is permitted to view the matter is a
minor or recklessly disregards a substantial risk that the person
who is permitted to view the matter is a minor.
(5) 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 $25,000.00, or both.
Sec. 7. A prosecuting attorney may commence an action in the
circuit court against a person, other than a person described in
section 4, to enjoin that person from disseminating to a minor
ultra-violent explicit matter that is harmful to minors.
Sec. 8. (1) A person intending to disseminate to a minor
matter that may be considered ultra-violent explicit matter may
request, from the prosecuting attorney of the county in which the
dissemination is intended, an advisory opinion as to the legality
of that dissemination. The request for an advisory opinion shall be
in writing and shall be accompanied by a reasonable and timely
opportunity for the prosecuting attorney to examine the matter. Not
more than 5 business days after receipt of a proper request, the
prosecuting attorney shall issue to the person making the request
an advisory opinion, or a refusal to issue an advisory opinion, in
writing. The advisory opinion shall state in unequivocal terms
whether knowing dissemination of the matter to a minor would be
considered by the prosecuting attorney to violate section 3.
(2) A person who has requested an advisory opinion under
subsection (1) may commence an action for a declaratory judgment in
the circuit court in the same county to obtain an adjudication of
the legality of the intended dissemination if either of the
following conditions exists:
(a) The action is commenced more than 5 business days after
submission of a proper request, and the prosecuting attorney has
failed to issue an advisory opinion.
(b) The prosecuting attorney has issued an advisory opinion,
and that opinion fails to state in unequivocal terms that the
prosecuting attorney does not consider the knowing dissemination of
the matter to a minor a violation of section 3.
(3) The prosecuting attorney is the proper defendant to an
action under subsection (2). In responding to the complaint, the
prosecuting attorney may join a counterclaim for injunctive relief
permitted under section 7.
(4) If the prosecuting attorney, after commencement of an
action under subsection (2), issues an advisory opinion stating in
unequivocal terms that the prosecuting attorney does not consider
the knowing dissemination of the matter to a minor a violation of
section 3, the action shall be dismissed.
Sec. 9. The following apply in an action under section 3, 5,
6, 7, or 8:
(a) The prosecuting attorney bears the burden of proving by
clear and convincing evidence that knowing dissemination of the
specified matter to a minor would violate section 3.
(b) Upon appropriate motion of the prosecuting attorney or
order to show cause, the court may grant a preliminary injunction
or ex parte restraining order. A person enjoined under this
subdivision is entitled to a trial on the legality of the intended
dissemination within 1 day after joinder of issue, and a decision
shall be rendered by the court within 2 days after the conclusion
of the trial.
(c) The prosecuting attorney is not required to file any
security before a preliminary injunction or restraining order is
granted, is not liable for costs, and is not liable for damages
sustained by reason of the preliminary injunction or restraining
order.
(d) The proceedings are equitable in nature.
Sec. 10. (1) A conviction or sentence imposed for a violation
of this act does not preclude a conviction or sentence for a
violation of any other law of this state arising from the same
transaction.
(2) If a declaratory judgment has been obtained under sections
8 and 9, or an application for an injunction under section 7 has
been denied on the ground that the knowing dissemination to a minor
of specified matter does not violate section 3, that determination
is a complete defense for a person against a prosecution under
section 3 based upon the dissemination of that specified matter and
against a prosecution for violation of a preliminary injunction or
restraining order granted under section 9.
(3) If a prosecuting attorney issues an advisory opinion
stating in unequivocal terms that knowing dissemination of
specified matter to a minor is not considered by the prosecuting
attorney to violate section 3, then the recipient of the opinion
may be prosecuted under section 3 for the dissemination of that
specified matter only after the prosecutor has both withdrawn the
opinion and obtained an injunction under section 7 against the
dissemination of that specified matter by that person.
(4) A declaratory judgment or injunction applies only to the
county in which the prosecuting attorney serves.
Sec. 11. A person who in good faith disseminates or displays
any matter that has been rated under a rating system that prohibits
the providing to minors of certain matter deemed suitable for
adults but unsuitable for minors, that does not otherwise conflict
with this act, 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, to a minor through the use of that rating
system is immune from prosecution under this act if he or she
abides by that rating system and does not sell to minors matter
that is prohibited to be disseminated or displayed to minors under
that rating system.
Enacting section 1. This act takes effect December 1, 2005.