H 3291 Session 112 (1997-1998)
H 3291 General Bill, By Kelley, Askins, Davenport, Edge, Keegan, Knotts,
Lanford, Law, L.H. Limbaugh, McCraw, Miller, Phillips, Rice, Riser, Robinson,
Sandifer, Simrill, Wilkins, Witherspoon and Young-Brickell
A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION
16-15-386 SO AS TO PROVIDE THAT IT IS UNLAWFUL TO DISSEMINATE OR DISPLAY
INDECENT MATERIAL TO MINORS AND TO PROVIDE PENALTIES; TO AMEND SECTIONS
16-15-345 AND 16-15-355, RELATING TO THE ILLEGAL DISTRIBUTION OF OBSCENE
MATERIAL TO MINORS, SO AS TO REVISE THE PENALTIES; TO AMEND SECTION 16-15-375,
AS AMENDED, RELATING TO DEFINITIONS REGARDING SEXUAL EXPLOITATION OF MINORS,
SO AS TO PROVIDE THAT THESE DEFINITIONS APPLY TO THE PROVISIONS CONTAINED IN
SECTION 16-15-386 CONCERNING DISPLAYING INDECENT MATERIAL TO MINORS, AND TO
PROVIDE A DEFINITION FOR "INDECENT MATERIAL TO MINORS"; TO AMEND SECTION
44-53-391, RELATING TO THE UNLAWFUL ADVERTISEMENT FOR SALE, MANUFACTURE,
POSSESSION, SALE OR DELIVERY OF PARAPHERNALIA, SO AS TO REVISE THE PENALTIES;
AND TO PROVIDE A SEVERABILITY CLAUSE.
01/23/97 House Introduced and read first time HJ-4
01/23/97 House Referred to Committee on Judiciary HJ-4
04/09/97 House Committee report: Favorable with amendment
Judiciary HJ-4
04/15/97 House Amended HJ-18
04/15/97 House Read second time HJ-18
04/16/97 House Read third time and sent to Senate HJ-25
04/17/97 Senate Introduced and read first time
04/17/97 Senate Referred to Committee on Judiciary
05/13/98 Senate Committee report: Favorable with amendment
Judiciary SJ-22
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
May 13, 1998
H. 3291
Introduced by Reps. Kelley, Witherspoon, Simrill, Young-Brickell,
Edge, Keegan, Riser, Davenport, Lanford, Knotts, Robinson,
Sandifer, McCraw, Law, Askins, Rice, Miller, Wilkins, Limbaugh
and Phillips
S. Printed 5/13/98--S.
Read the first time April 17, 1997.
THE COMMITTEE ON JUDICIARY
To whom was referred a Bill (H. 3291), to amend the Code of Laws
of South Carolina, 1976, by adding Section 16-15-386 so as to
provide that it is unlawful to disseminate, etc., respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass with amendment:
Amend the bill, as and if amended, page 2, line 29, in Section
16-15-345, as contained in SECTION 2, after /disseminates/ by
inserting / or allows to be disseminated /.
Amend the bill further, as and if amended, page 2, line 40, in
Section 16-15-355, as contained in SECTION 3, after /disseminates/
by inserting / or allows to be disseminated /.
Amend title to conform.
DONALD H. HOLLAND, for Committee.
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING SECTION 16-15-386 SO AS TO PROVIDE
THAT IT IS UNLAWFUL TO DISSEMINATE OR DISPLAY
INDECENT MATERIAL TO MINORS AND TO PROVIDE
PENALTIES; TO AMEND SECTIONS 16-15-345 AND 16-15-355,
RELATING TO THE ILLEGAL DISTRIBUTION OF OBSCENE
MATERIAL TO MINORS, SO AS TO REVISE THE PENALTIES;
TO AMEND SECTION 16-15-375, AS AMENDED, RELATING
TO DEFINITIONS REGARDING SEXUAL EXPLOITATION OF
MINORS, SO AS TO PROVIDE THAT THESE DEFINITIONS
APPLY TO THE PROVISIONS CONTAINED IN SECTION
16-15-386 CONCERNING DISPLAYING INDECENT MATERIAL
TO MINORS, AND TO PROVIDE A DEFINITION FOR
"INDECENT MATERIAL TO MINORS"; TO AMEND
SECTION 44-53-391, RELATING TO THE UNLAWFUL
ADVERTISEMENT FOR SALE, MANUFACTURE,
POSSESSION, SALE OR DELIVERY OF PARAPHERNALIA, SO
AS TO REVISE THE PENALTIES; AND TO PROVIDE A
SEVERABILITY CLAUSE.
Amend Title To Conform
Whereas, it is a substantially and important interest of this State to
protect the physical and psychological well-being of its minors; and
Whereas, this interest extends to shielding minors from the influence
of indecent material, harmful material, and obscene material; and
Whereas, information is currently being disseminated and displayed
to minors that is not suitable for minors. Now, therefore,
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 16-15-386. (A) It is unlawful for a person to
disseminate or display indecent material to minors. A person is
guilty of this offense if, knowing the character or content of the
material, he:
(1) sells, furnishes, presents, or distributes to a minor material
that is indecent to minors; or
(2) displays indecent material which is visible to minors in
places frequented by minors or in places where minors are or are
likely to be invited as members of the general public:
(a) for commercial purposes;
(b) by wearing; or
(c) in any other manner.
(B) A person who violates the provisions of this section is guilty
of a:
(1) misdemeanor triable in magistrate court for a first offense
and, upon conviction, must be imprisoned not more than one year or
fined not more than one thousand dollars, or both;
(2) misdemeanor for a second and subsequent offenses and,
upon conviction, must be imprisoned not more than three years or
fined not more than three thousand dollars, or both.
(C) This section does not apply to audio-visual works, sound
recordings, newspapers, or bound literary works."
SECTION 2. Section 16-15-345 of the 1976 Code, as added by
Act 168 of 1987, is amended to read:
"Section 16-15-345. Any An individual
eighteen years of age or older who knowingly disseminates to
any a person under the age of eighteen years any
material which he knows or reasonably should know to be obscene
within the meaning of Section 16-15-305 is guilty of a felony and,
upon conviction, must be imprisoned for not more than five
ten years or fined not more than five thousand dollars,
or both."
SECTION 3. Section 16-15-355 of the 1976 Code, as added by
Act 168 of 1987, is amended to read:
"Section 16-15-355. Any An individual
eighteen years of age or older who knowingly disseminates to
any a minor twelve years of age or younger any
material which he knows or reasonably should know to be obscene
within the meaning of Section 16-15-305 is guilty of a felony and,
upon conviction, must be imprisoned for not more than ten
fifteen years or fined not more than ten thousand dollars,
or both."
SECTION 4. Section 16-15-375 of the 1976 Code, as last amended
by Act 421 of 1994, is further amended to read:
"Section 16-15-375. The following definitions apply to
Section 16-15-385, disseminating or exhibiting to minors harmful
material or performances; Section 16-15-386, displaying indecent
material to minors; Section 16-15-387, employing a person
under the age of eighteen years to appear in a state of sexually
explicit nudity in a public place; Section 16-15-395, first degree
sexual exploitation of a minor; Section 16-15-405, second degree
sexual exploitation of a minor; Section 16-15-410, third degree
sexual exploitation of a minor; Section 16-15-415, promoting
prostitution of a minor; and Section 16-15-425, participating in
prostitution of a minor.
(1) 'Harmful to minors' means that quality of any material or
performance that depicts sexually explicit nudity or sexual activity
and that, taken as a whole, has the following characteristics:
(a) the average adult person applying contemporary
community standards would find that the material or performance has
a predominant tendency to appeal to a prurient interest of minors in
sex; and
(b) the average adult person applying contemporary
community standards would find that the depiction of sexually
explicit nudity or sexual activity in the material or performance is
patently offensive to prevailing standards in the adult community
concerning what is suitable for minors; and
(c) to a reasonable person, the material or performance taken
as a whole lacks serious literary, artistic, political, or scientific value
for minors.
(2) 'Material' means pictures, drawings, video recordings, films,
or other visual depictions or representations but not material
consisting entirely of written words.
(3) 'Minor' means an individual who is less than eighteen years
old.
(4) 'Prostitution' means engaging or offering to engage in sexual
activity with or for another in exchange for anything of value.
(5) 'Sexual activity' includes any of the following acts or
simulations thereof:
(a) masturbation, whether done alone or with another human
or animal;
(b) vaginal, anal, or oral intercourse, whether done with
another human or an animal;
(c) touching, in an act of apparent sexual stimulation or
sexual abuse, of the clothed or unclothed genitals, pubic area, or
buttocks of another person or the clothed or unclothed breasts of a
human female;
(d) an act or condition that depicts bestiality,
sado-masochistic abuse, meaning flagellation or torture by or upon
a person who is nude or clad in undergarments or in a costume which
reveals the pubic hair, anus, vulva, genitals, or female breast nipples,
or the condition of being fettered, bound, or otherwise physically
restrained on the part of the one so clothed;
(e) excretory functions;
(f) the insertion of any part of a person's body, other than the
male sexual organ, or of any object into another person's anus or
vagina, except when done as part of a recognized medical procedure.
(6) 'Sexually explicit nudity' means the showing of:
(a) uncovered, or less than opaquely covered, human genitals,
pubic area, or buttocks, or the nipple or any portion of the areola of
the human female breast; or
(b) covered human male genitals in a discernibly turgid state.
(7) 'Indecent material to minors' means that
quality of any material that taken as a whole, has the following
characteristics:
(a) the average adult applying contemporary
community standards would find that the material depicts, describes,
represents, or explicitly refers to sexually explicit nudity or sexual
activity that is patently offensive to prevailing standards in the adult
community concerning what is suitable for minors; and
(b) to a reasonable person, the material taken as a whole
lacks serious literary, artistic, political, or scientific value for
minors."
SECTION 5. Section 44-53-391(c) of the 1976 Code is amended
to read:
"(c) Any person found guilty of violating the provisions
of this section shall be subject to a civil fine of not more than five
hundred dollars except that a corporation shall be subject to a civil
fine of not more than fifty thousand dollars. Imposition of such fine
shall not give rise to any disability or legal disadvantage based on
conviction for a criminal offense. A person who violates the
provisions of this section is guilty of a:
(1) misdemeanor triable in magistrate court for a first offense
and, upon conviction, must be imprisoned not more than thirty days
or fined not more than five hundred dollars, or both. However, a
corporation is subject to a fine of not more than fifty thousand
dollars;
(2) misdemeanor for a second offense and, upon conviction,
must be imprisoned not more than three years or fined not more than
one thousand dollars, or both. However, a corporation is subject to
a fine of not more than seventy-five thousand dollars;
(3) felony for a third and subsequent offense and, upon
conviction, must be imprisoned not more than five years or fined not
more than two thousand dollars, or both. However, a corporation is
subject to a fine of not more than one hundred thousand
dollars."
SECTION 6. If any section, paragraph, provision, or portion of
this act is held to be unconstitutional or invalid by a court of
competent jurisdiction, this holding shall not affect the
constitutionality or validity of the remaining portions of this act, the
General Assembly hereby declares that the provisions of this act are
severable from each other.
SECTION 7. This act takes effect upon approval by the Governor.
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