SF 2176 (LSB 5125XS (3) 90)

SENATE FILE 2176

BY  SALMON

A BILL FOR

An Act relating to obscenity, including the exposure of a minor to an obscene performance and admittance of a minor to a premises with obscene performances, establishing a private civil cause of action, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 721.2, Code 2024, is amended by adding the following new subsection:
   NEW SUBSECTION.  9.  Violates the provisions of section 728.7A.
    Sec. 2.  Section 728.1, Code 2024, is amended by adding the following new subsection:
   NEW SUBSECTION.  5A.  “Obscene performance” means a visual performance by a person, whether compensated or uncompensated, that exposes the person’s genitals, pubic area, buttocks, or female breast, including prosthetics and artificial sexual organs or substitutes therefor, or involves the person engaging in a sex act, masturbation, excretory function, or sadomasochistic abuse, which the average person, viewing the performance as a whole and applying contemporary community standards with respect to what is suitable to be viewed by minors, would find appeals to the prurient interest and is patently offensive, and the performance taken as a whole lacks serious artistic, literary, political, or scientific value.
    Sec. 3.  NEW SECTION.  728.1A  Enforcement.
   The office of attorney general, as authorized by section 13.2, subsection 1, paragraph “b”, or the county attorney of the county in which a violation of this chapter occurs shall enforce the provisions of this chapter.
    Sec. 4.  NEW SECTION.  728.2A  Exposing minor to obscene performance.
   Any person who knowingly exposes a minor to an obscene performance is guilty of a public offense and shall upon conviction be guilty of an aggravated misdemeanor.
    Sec. 5.  NEW SECTION.  728.3A  Admitting minors to premises with obscene performances.
   1.  A person who knowingly sells, gives, delivers, or provides a minor who is not a child a pass or admits the minor to premises where an obscene performance is performed is guilty of a public offense and upon conviction is guilty of a serious misdemeanor.
   2.  A person who knowingly sells, gives, delivers, or provides a child a pass or admits the minor to premises where an obscene performance is performed is guilty of a public offense and upon conviction is guilty of an aggravated misdemeanor.
    Sec. 6.  Section 728.6, Code 2024, is amended to read as follows:
   728.6  Civil suit to determine obscenity.
   1.  Whenever the county attorney of any county has reasonable cause to believe that any person is engaged or plans to engage in the dissemination or exhibition of obscene material to minors within the county attorney’s county, to minors the county attorney may institute a civil proceeding in the district court of the county to enjoin the dissemination or exhibition of obscene material to minors. Such application for injunction is optional and not mandatory and shall not be construed as a prerequisite to criminal prosecution for a violation of this chapter.
   2.  a.  The parent or guardian of a minor, or a minor upon attaining eighteen years of age, to whom obscene material has been knowingly disseminated or exhibited, in violation of section 728.2 or 728.3, or who was exposed to an obscene performance, in violation of section 728.2A or 728.3A, may bring a civil action against any person that has knowingly disseminated or exhibited obscene material to the minor or who engaged in or caused or allowed a person to knowingly engage in an obscene performance in the presence of the minor for any of the following remedies:
   (1)  A declaratory judgment.
   (2)  Injunctive relief.
   (3)  Actual, incidental, and consequential damages.
   (4)  Punitive damages, if appropriate.
   (5)  Other equitable relief that the court deems appropriate.
   b.  The minimum award of damages in an action brought pursuant to this subsection shall be ten thousand dollars.
   c.  An action brought under this subsection may be commenced by a parent or guardian within two years of a violation. An action for a violation brought by a person who was a minor at the time of a violation shall be found within ten years after the person upon whom the offense is committed attains eighteen years of age.
    Sec. 7.  NEW SECTION.  728.7A  Public institutions and funds —— obscene material —— obscene performance.
   1.  No public institution, public facility, public equipment, or other physical asset that is owned, leased, or controlled by this state or a political subdivision of this state shall be used for a show, exhibition, or performance that includes obscene material or obscene performances.
   2.  No public institution or facility shall lease, sell, or permit the subleasing of its facilities or property for the purpose of shows, exhibitions, or performances that include obscene material or obscene performances.
   3.  No public funds made available by the state or a political subdivision of this state that are distributed by an institution, board, commission, department, agency, official, or an employee of the state or political subdivision shall be used for the purpose of shows, exhibitions, or performances that include obscene material or obscene performances.
   4.  This section shall not apply to obscene materials that are sent or received as part of a law enforcement investigation or are authorized by law to be sent or received.
    Sec. 8.  REPEAL.  Section 728.7, Code 2024, is repealed.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to obscenity, including the exposure of a minor to an obscene performance and admittance of a minor to a premises with obscene performances, and establishes a private civil cause of action.
   The bill defines “obscene performance” as a visual performance by a person, whether compensated or uncompensated, that exposes the person’s genitals, pubic area, buttocks, or female breast, including prosthetics and artificial sexual organs or substitutes therefor, or involves the person engaging in a sex act, masturbation, excretory function, or sadomasochistic abuse, which the average person, viewing the performance as a whole and applying contemporary community standards with respect to what is suitable to be viewed by minors, would find appeals to the prurient interest and is patently offensive, and the performance taken as a whole lacks serious artistic, literary, political, or scientific value.
   The bill provides that the office of attorney general or the county attorney of the county in which a violation occurs shall enforce the provisions of Code chapter 728 (obscenity).
   The bill provides that any person who knowingly exposes a minor to an “obscene performance” is guilty of a public offense and shall upon conviction be guilty of an aggravated misdemeanor.
   The bill provides that a person who knowingly sells, gives, delivers, or provides a minor who is not a child a pass or admits the minor to premises where an obscene performance is performed is guilty of a serious misdemeanor. A person who knowingly sells, gives, delivers, or provides a child a pass or admits the minor to premises where an obscene performance is performed is guilty of an aggravated misdemeanor. A minor is a person under 18 years of age, and a child is a person under the age of 14 years of age.
   The bill establishes a private civil cause of action for a parent or guardian of a minor, or a minor upon reaching 18 years of age, to whom obscene material has been knowingly disseminated or exhibited, or who was exposed to an obscene performance. A cause of action may be brought against any person that has knowingly disseminated or exhibited obscene material to the minor or who engaged in or caused or allowed a person to knowingly engage in an obscene performance in the presence of the minor for any of the following remedies: a declaratory judgment; injunctive relief; actual, incidental, and consequential damages; punitive damages, if appropriate; and any other equitable relief that the court deems appropriate. The minimum award of damages shall be $10,000. An action may be commenced by a parent or guardian within two years of a violation. An action for a violation brought by a person who was a minor at the time of a violation shall be found within 10 years after the person upon whom the offense is committed attains 18 years of age.
   The bill provides that no public institution, public facility, public equipment, or other physical asset that is owned, leased, or controlled by this state or a political subdivision of this state shall be used for a show, exhibition, or performance that includes obscene material or obscene performances. No public institution or facility shall lease, sell, or permit the subleasing of its facilities or property for the purpose of shows, exhibitions, or performances that include obscene material or obscene performances. No public funds made available by the state or a political subdivision of this state that are distributed by an institution, board, commission, department, agency, official, or an employee of the state or political subdivision shall be used for the purpose of shows, exhibitions, or performances that include obscene material or obscene performances. The bill does not apply to obscene materials that are sent or received as part of a law enforcement investigation or are authorized by law to be sent or received.
   The bill provides that any public officer or employee, or any person acting under color of such office or employment, who knowingly allows a public institution or funds to be used for the purpose of shows, exhibitions, or performances that include obscene material or obscene performances commits a serious misdemeanor.
   The bill repeals Code section 728.7 (exemptions for public libraries and educational institutions), which provides that nothing in Code chapter 728 prohibits the use of appropriate material for educational purposes in any accredited school, or any public library, or in any educational program in which the minor is participating and nothing in Code chapter 728 prohibits the attendance of minors at an exhibition or display of art works or the use of any materials in any public library.