Bill 3291

                    Current Status

Bill Number:                       3291
Type of Legislation:               General Bill GB
Introducing Body:                  House
Introduced Date:                   19970123
Primary Sponsor:                   Kelley
All Sponsors:                      Kelley, Witherspoon, Simrill,
                                   Young-Brickell, Edge, Keegan, Riser,
                                   Davenport, Lanford, Knotts,
                                   Robinson, Sandifer, McCraw, Law,
                                   Askins, Rice, Miller, Wilkins,
                                   Limbaugh and Phillips 
Drafted Document Number:           pt\2848cm.97
Residing Body:                     Senate
Date of Last Amendment:            19970415
Subject:                           Obscene material to minors,
                                   illegal distribution of;
                                   paraphernalia, Crimes and Offenses,
                                   obscenity

Body    Date      Action Description                       Com     Leg Involved
______  ________  _______________________________________  _______ ____________

Senate  19980513  Committee report: Favorable with         11 SJ
                  amendment
Senate  19970417  Introduced, read first time,             11 SJ
                  referred to Committee
House   19970416  Read third time, sent to Senate
House   19970415  Amended, read second time
House   19970409  Committee report: Favorable with         25 HJ
                  amendment
House   19970123  Introduced, read first time,             25 HJ
                  referred to Committee

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.

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

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.