HB288 By Representative Farley RFD Judiciary Rd 1 24-FEB-16

SYNOPSIS: Under existing law, it is a crime to disseminate, publicly display, possess, or possess with the intent to disseminate obscene materials containing visual depictions of persons under 17 years of age.

This bill would further clarify the definition of disseminate by removing the requirement of monetary consideration and would include in the definition sharing or trading such visual depictions.

This bill would include under the crime of possession of obscene materials containing visual depictions of persons under 17 years of age a visual depiction of breast nudity.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

To amend Sections 13A-12-190 and 13A-12-192 of the Code of Alabama 1975, relating to disseminating, publicly displaying, possessing, or possessing with the intent to disseminate obscene materials containing visual depictions of persons under 17 years of age; to further define terms; to include under the crime of possession a visual depiction of breast nudity; and in connection therewith to have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 13A-12-190 and 13A-12-192 of the Code of Alabama 1975, are amended to read as follows:

§13A-12-190.

"For the purposes of this division, the following terms shall have the meanings respectively ascribed to them by this section:

"(1) DISSEMINATE. To sell, lend or show for monetary consideration, show, share, or trade or to offer or agree to do the same.

"(2) DISPLAY PUBLICLY. The exposing, placing, posting, exhibiting or in any fashion displaying in any location, whether public or private, an item in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a public thoroughfare, depot or vehicle.

"(3) PUBLIC THOROUGHFARE, DEPOT or VEHICLE. Any street, highway, park, depot or transportation platform or other place, whether indoors or out, or any vehicle for public transportation, owned or operated by government, either directly or through a public corporation or authority, or owned or operated by any agency of public transportation that is designed for the use, enjoyment or transportation of the general public.

"(4) KNOWINGLY. A person knowingly disseminates or publicly displays obscene matter when the person knows the nature of the matter. A person knows the nature of the matter when either of the following circumstances exist:

"a. The person is aware of the character and content of the matter; or

"b. The person recklessly disregards circumstances suggesting the character and content of the matter.

"(5) SADO-MASOCHISTIC ABUSE. Such term means either of the following:

"a. Flagellation or torture, for the purpose of sexual stimulation, by or upon a person who is nude or clad in undergarments or in a revealing or bizarre costume; or

"b. The condition of a person who is nude or clad in undergarments or in a revealing or bizarre costume being fettered, bound or otherwise physically restrained for the purpose of sexual stimulation.

"(6) SEXUAL EXCITEMENT. The condition of human male or female genitals when in a state of sexual stimulation.

"(7) SEXUAL INTERCOURSE. Intercourse, real or simulated, whether genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex or between a human and an animal.

"(8) MASTURBATION. Manipulation, by hand or instrument, of the human genitals, whether one's own or another's for the purpose of sexual stimulation.

"(9) OTHER SEXUAL CONDUCT. Any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.

"(10) BREAST NUDITY. The lewd showing of the post-pubertal human female breasts below a point immediately above the top of the areola.

"(11) GENITAL NUDITY. The lewd showing of the genitals or pubic area.

"(12) MATTER. Any book, magazine, newspaper, or other printed material, or any picture, photograph, motion picture, video cassette, tape, record, digital video disc (DVD), video compilation, or electronic depiction in a comparable format, or an image, file, download, or other content stored, or reproduced by using a computer or electronic device or other digital storage, or any other thing, articles, or materials that either are or contain a photographic or other visual depiction of a live act, performance, or event.

"(13) OBSCENE. a. When used to describe any matter that contains a visual reproduction of breast nudity, such term means matter that:

"1. Applying contemporary local community standards, on the whole, appeals to the prurient interest; and

"2. Is patently offensive; and

"3. On the whole, lacks serious literary, artistic, political or scientific value.

"b. When used to describe matter that is a depiction of an act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct, such term means matter containing such a visual reproduction that itself lacks serious literary, artistic, political or scientific value.

"(14) LOCAL COMMUNITY. The judicial circuit in which the indictment is brought.

"(15) VISUAL DEPICTION. A portrayal, representation, illustration, image, likeness, or other thing that creates a sensory impression, whether an original, duplicate, or reproduction.

"(16) SEPARATE OFFENSE. The depiction of an individual less than 17 years of age that violates this division shall constitute a separate offense for each single visual depiction.

§13A-12-192.

"(a) Any person who knowingly possesses with intent to disseminate any obscene matter that contains a visual depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class B felony. Possession of three or more copies of the same visual depiction contained in obscene matter is prima facie evidence of possession with intent to disseminate the same.

"(b) Any person who knowingly possesses any obscene matter that contains a visual depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class C felony."

Section 2. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 3. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Sex Offenders

Crimes and Offenses

Juveniles

Minors

Code Amended