130th Ohio General Assembly
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Sub. S. B. No. 144As Passed by the Senate
As Passed by the Senate

125th General Assembly
Regular Session
2003-2004
Sub. S. B. No. 144


SENATORS Austria, Harris, Jacobson, Jordan, Amstutz, Hottinger, Mumper, Spada



A BILL
To amend sections 2907.01 and 2907.31 and to enact sections 3375.351 and 3375.352 of the Revised Code to expand the criminal offense of "disseminating matter harmful to juveniles" to also prohibit selling, providing, presenting, etc., a prepaid adult entertainment card to a juvenile; to prohibit public libraries from using state money or money from a county library and local government support fund for Internet access purposes unless they install specified types of filtering devices or filtering software and require parental approval for a juvenile to borrow library video materials; to allow a public library or its personnel to disable the filtering devices or software to enable a person to have full access to a computer for specified proper purposes; and to make funding of any public library with state money or money from a county library and local government support fund contingent upon its compliance with the filter, notice, and parental approval requirements as to use of prior state money or money from the fund.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2907.01 and 2907.31 be amended and sections 3375.351 and 3375.352 of the Revised Code be enacted to read as follows:
Sec. 2907.01.  As used in sections 2907.01 to 2907.37 of the Revised Code:
(A) "Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.
(B) "Sexual contact" means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.
(C) "Sexual activity" means sexual conduct or sexual contact, or both.
(D) "Prostitute" means a male or female who promiscuously engages in sexual activity for hire, regardless of whether the hire is paid to the prostitute or to another.
(E) "Harmful to juveniles" means that quality of any electronic communication provided or accessed through a prepaid adult entertainment card, any material, or any performance describing or representing nudity, sexual conduct, sexual excitement, or sado-masochistic abuse in any form to which all of the following apply:
(1) The electronic communication, material, or performance, when considered as a whole, appeals to the prurient interest in sex of juveniles.
(2) The electronic communication, material, or performance is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for juveniles.
(3) The electronic communication, material, or performance, when considered as a whole, lacks serious literary, artistic, political, and scientific value for juveniles.
(F) When considered as a whole, and judged with reference to ordinary adults or, if it is designed for sexual deviates or other specially susceptible group, judged with reference to that group, any electronic communication provided or accessed through a prepaid adult entertainment card, any material, or any performance is "obscene" if any of the following apply:
(1) Its dominant appeal is to prurient interest;
(2) Its dominant tendency is to arouse lust by displaying or depicting sexual activity, masturbation, sexual excitement, or nudity in a way that tends to represent human beings as mere objects of sexual appetite;
(3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality;
(4) Its dominant tendency is to appeal to scatological interest by displaying or depicting human bodily functions of elimination in a way that inspires disgust or revulsion in persons with ordinary sensibilities, without serving any genuine scientific, educational, sociological, moral, or artistic purpose;
(5) It contains a series of displays or descriptions of sexual activity, masturbation, sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient or scatological interest, when the appeal to such an interest is primarily for its own sake or for commercial exploitation, rather than primarily for a genuine scientific, educational, sociological, moral, or artistic purpose.
(G) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
(H) "Nudity" means the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full, opaque covering of any portion thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state.
(I) "Juvenile" means an unmarried person under the age of eighteen.
(J) "Material" means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, phonographic record, or tape, or other tangible thing capable of arousing interest through sight, sound, or touch and includes an image or text appearing on a computer monitor, television screen, liquid crystal display, or similar display device or an image or text recorded on a computer hard disk, computer floppy disk, compact disk, magnetic tape, or similar data storage device.
(K) "Performance" means any motion picture, preview, trailer, play, show, skit, dance, or other exhibition performed before an audience.
(L) "Spouse" means a person married to an offender at the time of an alleged offense, except that such person shall not be considered the spouse when any of the following apply:
(1) When the parties have entered into a written separation agreement authorized by section 3103.06 of the Revised Code;
(2) During the pendency of an action between the parties for annulment, divorce, dissolution of marriage, or legal separation;
(3) In the case of an action for legal separation, after the effective date of the judgment for legal separation.
(M) "Minor" means a person under the age of eighteen.
(N) "Mental health client or patient" has the same meaning as in section 2305.51 of the Revised Code.
(O) "Mental health professional" has the same meaning as in section 2305.115 of the Revised Code.
(P) "Sado-masochistic abuse" means flagellation or torture by or upon a person or the condition of being fettered, bound, or otherwise physically restrained.
(Q) "Prepaid adult entertainment card" means either of the following:
(1) A product that, by means of a predetermined cardholder identification and a password unique to the card, provides, or permits access to, one or more internet sites containing, including by link or reference to another internet site, any electronic communication that is harmful to juveniles or obscene;
(2) A product that, by means of a telephone number and an access code or password unique to the card and for a predetermined number of minutes, provides, or permits access to, an electronic communication that is harmful to juveniles or obscene.
(R) "Electronic communication" means any material, performance, message, or information transferred, sent, posted, published, disseminated, or otherwise communicated, any material, performance, information, or data received, or any telecommunication made, through the use of an electronic method of remotely transferring information, including, but not limited to, a computer, computer network, computer program, computer system, or telecommunications device.
(S) "Computer," "computer network," "computer program," "computer system," "telecommunication," and "telecommunications device" have the same meanings as in section 2913.01 of the Revised Code.
Sec. 2907.31.  (A) No person, with knowledge of its character or content, shall recklessly do any of the following:
(1) Directly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles any material or performance that is obscene or harmful to juveniles;
(2) Directly offer or agree to sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles any material or performance that is obscene or harmful to juveniles;
(3) While in the physical proximity of the juvenile or law enforcement officer posing as a juvenile, allow any juvenile or law enforcement officer posing as a juvenile to review or peruse any material or view any live performance that is harmful to juveniles;
(4) Directly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present a prepaid adult entertainment card to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles, or directly offer or agree to do so.
(B) The following are affirmative defenses to a charge under division (A)(1), (2), or (3) of this section that involves material or a performance that is harmful to juveniles but not obscene, or to a charge under division (A)(4) of this section:
(1) The defendant is the parent, guardian, or spouse of the juvenile involved.
(2) The juvenile involved, at the time of the conduct in question, was accompanied by the juvenile's parent or guardian who and one of the following applies:
(a) Regarding a charge under division (A)(1), (2), or (3) of this section, the parent or guardian so accompanying the juvenile, with knowledge of its character, consented to the material or performance being furnished or presented to the juvenile;
(b) Regarding a charge under division (A)(4) of this section, the parent or guardian so accompanying the juvenile, with knowledge of the purpose for which the card may be used, consented to the prepaid adult entertainment card being sold, delivered, furnished, disseminated, provided, exhibited, rented, or presented, or being offered or agreed to be sold, delivered, furnished, disseminated, provided, exhibited, rented, or presented, to the juvenile.
(3) The juvenile involved exhibited to the defendant or to the defendant's agent or employee a draft card, driver's license, birth record, marriage license, or other official or apparently official document purporting to show that the juvenile was eighteen years of age or over or married, and the person to whom that document was exhibited did not otherwise have reasonable cause to believe that the juvenile was under the age of eighteen and unmarried.
(C)(1) It is an affirmative defense to a charge under division (A)(1), (2), or (3) of this section, involving material or a performance that is obscene or harmful to juveniles, or to a charge under division (A)(4) of this section, that the material or performance involved in the violation of division (A)(1), (2), or (3) of this section or the prepaid adult entertainment card involved in the violation of division (A)(4) of this section was furnished or presented for a bona fide medical, scientific, educational, governmental, judicial, or other proper purpose, by a physician, psychologist, sociologist, scientist, teacher, librarian, clergyman, prosecutor, judge, or other proper person.
(2) Except as provided in division (B)(3) of this section, mistake of age is not a defense to a charge under division (A) of this section.
(D)(1) A person directly sells, delivers, furnishes, disseminates, provides, exhibits, rents, or presents or directly offers or agrees to sell, deliver, furnish, disseminate, provide, exhibit, rent, or present material or, a performance, or a prepaid adult entertainment card to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles in violation of division (A) of this section by means of an electronic method of remotely transmitting information if the person knows or has reason to believe that the person receiving the information is a juvenile or the group of persons receiving the information are juveniles.
(2) A person remotely transmitting information by means of a method of mass distribution does not directly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present or directly offer or agree to sell, deliver, furnish, disseminate, provide, exhibit, rent, or present the material or, performance, or card in question to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles in violation of division (A) of this section if either of the following applies:
(a) The person has inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile.
(b) The method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.
(E) If any provision of this section, or the application of any provision of this section to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of this section or related sections that can be given effect without the invalid provision or application. To this end, the provisions are severable.
(F) Whoever violates division (A) of this section is guilty of disseminating matter harmful to juveniles and shall be punished as provided in division (F)(1) or (2) of this section. If
(1) Disseminating matter harmful to juveniles committed in violation of division (A)(1), (2), or (3) of this section shall be punished as provided in this division. If the material or performance involved is harmful to juveniles, except as otherwise provided in this division, a disseminating matter harmful to juveniles committed in violation of division (A)(1), (2), or (3) of this section is a misdemeanor of the first degree. If the material or performance involved is obscene, except as otherwise provided in this division, a disseminating matter harmful to juveniles committed in violation of division (A)(1), (2), or (3) of this section is a felony of the fifth degree. If the material or performance involved is obscene and the juvenile to whom it is sold, delivered, furnished, disseminated, provided, exhibited, rented, or presented, the juvenile to whom the offer is made or who is the subject of the agreement, or the juvenile who is allowed to review, peruse, or view it is under thirteen years of age, disseminating matter harmful to juveniles committed in violation of division (A)(1), (2), or (3) of this section is a felony of the fourth degree.
(2) Disseminating matter harmful to juveniles committed in violation of division (A)(4) of this section shall be punished as provided in this division. Except as otherwise provided in this division, disseminating matter harmful to juveniles committed in violation of division (A)(4) of this section is a misdemeanor of the first degree. If the juvenile to whom the prepaid entertainment card is sold, delivered, furnished, disseminated, provided, exhibited, rented, or presented, or the juvenile to whom the offer is made or who is the subject of the agreement, is under thirteen years of age, disseminating matter harmful to juveniles committed in violation of division (A)(4) of this section is a felony of the fifth degree.
Sec. 3375.351.  (A) As used in this section and section 3375.352 of the Revised Code:
(1) "Harmful to juveniles" and "material" have the same meanings as in section 2907.01 of the Revised Code.
(2) "Juvenile" means an unmarried person under the age of eighteen.
(3) "Library" means a free public library, including both of the following:
(a) A library that is maintained and regulated under section 715.13 of the Revised Code;
(b) A library that is created, maintained, and regulated under Chapter 3375. of the Revised Code.
(4) "Obscene" has the same meaning as in section 2907.01 of the Revised Code as that division has been construed by the supreme court of this state.
(B) The board of library trustees of a library shall not use any state money it has received from any entity or any source, or any money it has received from any county library and local government support fund under Chapter 5705. of the Revised Code, to purchase computers used to access the internet or to pay for direct costs associated with accessing the internet, unless all of the following apply:
(1) The board has installed and has operational, subject to division (C) of this section, a filtering device or filtering software that protects against internet access to material that is obscene or harmful to juveniles on each computer located at the library that is accessible to juveniles;
(2) The board has installed and has operational, subject to division (C) of this section, a filtering device or filtering software that protects against internet access to material that is obscene on each computer located at the library that is accessible to any patron of the library.
(3) The board has adopted and enforces a policy prohibiting a juvenile from borrowing from the library any video material unless a parent or guardian, after being notified that some video materials available for borrowing from the library might include materials that are harmful to juveniles, has given permission for the juvenile to borrow video materials. If permission for the juvenile to borrow video materials is given by a parent or guardian to the library, it shall be clearly noted on the library card or other identification documentation that has been issued to the juvenile. The notification to the parent shall be on the application for the library card or for the other identification documentation of the juvenile, if the parent is required to sign the application, or shall be provided in any other manner the board determines to be appropriate.
(C) If a board of library trustees of a library installs and has operational a filtering device or filtering software on computers located at the library in accordance with divisions (B)(1) and (2) of this section, upon the request of any person, any administrator, supervisor, or other official or employee of the library may disable or override the device or software on a particular computer to enable the person to have full access to that computer for bona fide research, medical, scientific, educational, governmental, judicial, or other lawful purposes. If the person making the request is eighteen years of age or older, the person is not required to explain, and shall not be asked to explain, the reason or purpose for which the person is requesting full access to the computer.
(D) Nothing in this section limits, restricts, or prohibits a board of library trustees of a library, or any administrator, supervisor, or other official or employee of a library, from regulating, limiting, restricting, or prohibiting any person from having access while at the library, on the internet or in any other manner, to material other than material that is obscene or harmful to juveniles.
Sec. 3375.352. No entity shall distribute any state money from any source to a board of public library trustees unless it has received a resolution from the board stating that the library has complied with and will continue to comply with division (B) of section 3375.351 of the Revised Code.
Section 2. That existing sections 2907.01 and 2907.31 of the Revised Code are hereby repealed.
Section 3. (A) Division (B) of section 3375.351 of the Revised Code applies to boards of library trustees one hundred eighty days after the effective date of that section.
(B) Section 3375.352 of the Revised Code applies to the distribution of state money beginning one hundred eighty days after the effective date of that section.
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