act-2000-0-25•Pennsylvania Act 2000-25 — CRIMES CODE (18 PA.C.S.) - AMEND SEXUAL MATERIAL VIA ELECTRONIC
Pennsylvania Act 2000-25 — CRIMES CODE (18 PA.C.S.) - AMEND SEXUAL MATERIAL VIA ELECTRONIC
act-2000-0-252000 Pa. Act 25Law
Act text
CRIMES CODE (18 PA.C.S.) - AMEND SEXUAL MATERIAL VIA ELECTRONIC
Act of Jun. 13, 2000, P.L. 130, No. 25 Cl. 18
Session of 2000
No. 2000-25
SB 262
AN ACT
Amending Title 18 (Crimes and Offenses) of the Pennsylvania
Consolidated Statutes, further providing for explicit sexual
materials.
The General Assembly finds and declares as follows:
(1) The Internet is an increasingly valuable medium for
communication and the dissemination and collection of
information.
(2) The children of this Commonwealth utilize the
Internet for entertainment, education and commerce.
(3) Many children in this Commonwealth have access to
electronic mail accounts through their parents' accounts,
shared accounts or their own personal accounts.
(4) Increasingly advertisers use the Internet to market
explicit sexual materials to millions of users of the
Internet.
(5) One of the frequently used vehicles for the
marketing of explicit sexual materials via the Internet is
unsolicited electronic mail messages.
(6) These unsolicited explicit sexual advertisements are
sent to computers in Commonwealth households allowing
children to view or have access to pornographic materials.
(7) Although there are an increasing number of Internet
filtering software titles that parents can use to block
access to obscene World Wide Web sites, these filtering
software titles are ineffective against explicit sexual
material that is sent via electronic mail.
(8) There is no universal method of identifying
electronic mail messages that market explicit sexual
materials.
(9) Despite the best efforts of parents to protect their
children from explicit sexual material via electronic mail
messages, they are unable to do so because there is no method
by which they can separate and filter out inappropriate
messages from appropriate messages.
(10) The Commonwealth has a compelling interest in
protecting children from explicit sexual material.
(11) In doing so, government must enact a narrowly
tailored remedy to avoid interfering with the growth or
accessibility of this important medium and with the rights of
adult users of the Internet under the first amendment to the
Constitution of the United States and section 7 of Article I
of the Constitution of Pennsylvania.
(12) This act empowers parents to decide what type of
messages are inappropriate for their children and effectively
block those messages from their children's electronic mail
accounts.
(13) This act does not restrict or prevent the sending
of unsolicited explicit sexual electronic advertisements to
any and all prospective recipients as long as an appropriate
warning accompanies such advertisements.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 5903(a), (b) and (h)(1) of Title 18 of
the Pennsylvania Consolidated Statutes are amended and the
section is amended by adding subsections to read:
§ 5903. Obscene and other sexual materials and performances.
(a) Offenses defined.--No person, knowing the obscene
character of the materials or performances involved, shall:
(1) display or cause or permit the display of any
explicit sexual materials as defined in subsection (c) in or
on any window, showcase, newsstand, display rack, billboard,
display board, viewing screen, motion picture screen, marquee
or similar place in such manner that the display is visible
from any public street, highway, sidewalk, transportation
facility or other public thoroughfare, or in any business or
commercial establishment where minors, as a part of the
general public or otherwise, are or will probably be exposed
to view all or any part of such materials;
(2) sell, lend, distribute, transmit, exhibit, give away
or show any obscene materials to any person 18 years of age
or older or offer to sell, lend, distribute, transmit,
exhibit or give away or show, or have in his possession with
intent to sell, lend, distribute, transmit, exhibit or give
away or show any obscene materials to any person 18 years of
age or older, or knowingly advertise any obscene materials in
any manner;
(3) design, copy, draw, photograph, print, utter,
publish or in any manner manufacture or prepare any obscene
materials;
(4) write, print, publish, utter or cause to be written,
printed, published or uttered any advertisement or notice of
any kind giving information, directly or indirectly, stating
or purporting to state where, how, from whom, or by what
means any obscene materials can be purchased, obtained or
had;
(5) produce, present or direct any obscene performance
or participate in a portion thereof that is obscene or that
contributes to its obscenity;
(6) hire, employ, use or permit any minor child to do or
assist in doing any act or thing mentioned in this
subsection;
(7) knowingly take or deliver in any manner any obscene
material into a State correctional institution, county
prison, regional prison facility or any other type of
correctional facility;
(8) possess any obscene material while such person is an
inmate of any State correctional institution, county prison,
regional prison facility or any other type of correctional
facility; or
(9) knowingly permit any obscene material to enter any
State correctional institution, county prison, regional
prison facility or any other type of correctional facility if
such person is a prison guard or other employee of any
correctional facility described in this paragraph.
(a.1) Dissemination of explicit sexual material via an
electronic communication.--No person, knowing the content of the
advertisement to be explicit sexual materials as defined in
subsection (c)(1) and (c)(2), shall transmit or cause to be
transmitted an unsolicited advertisement in an electronic
communication as defined in section 5702 (relating to
definitions) to one or more persons within this Commonwealth
that contains explicit sexual materials as defined in
subsections (c)(1) and (c)(2) without including in the
advertisement the term "ADV-ADULT" at the beginning of the
subject line of the advertisement.
(b) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"Community." For the purpose of applying the "contemporary
community standards" in this section, community means the State.
"Knowing." As used in [subsection (a)] subsections (a) and
(a.1), knowing means having general knowledge of, or reason to
know or a belief or ground for belief which warrants further
inspection or inquiry of, the character and content of any
material or performance described therein which is reasonably
susceptible of examination by the defendant.
"Material." Any literature, including any book, magazine,
pamphlet, newspaper, storypaper, bumper sticker, comic book or
writing; any figure, visual representation, or image, including
any drawing, photograph, picture, videotape or motion picture.
"Nude." Means showing the human male or female genitals,
pubic area or buttocks with less than a fully opaque covering,
or showing the female breast with less than a fully opaque
covering of any portion thereof below the top of the nipple.
"Obscene." Any material or performance, if:
(1) the average person applying contemporary community
standards would find that the subject matter taken as a whole
appeals to the prurient interest;
(2) the subject matter depicts or describes in a
patently offensive way, sexual conduct of a type described in
this section; and
(3) the subject matter, taken as a whole, lacks serious
literary, artistic, political, educational or scientific
value.
"Performance." Means any play, dance or other live
exhibition performed before an audience.
"Sadomasochistic abuse." Means, in a sexual context,
flagellation or torture by or upon a person who is nude or clad
in undergarments, a mask or in a bizarre costume or the
condition of being fettered, bound or otherwise physically
restrained on the part of one who is nude or so clothed.
"Sexual conduct." Patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted,
actual or simulated, including sexual intercourse, anal or oral
sodomy and sexual bestiality; and patently offensive
representations or descriptions of masturbation, excretory
functions, sadomasochistic abuse and lewd exhibition of the
genitals.
"Subject line." The area of an electronic communication that
contains a summary description of the content of the message.
"Transportation facility." Any conveyance, premises or place
used for or in connection with public passenger transportation,
whether by air, rail, motor vehicle or any other method,
including aircraft, watercraft, railroad cars, buses, and air,
boat, railroad and bus terminals and stations.
* * *
(h) Criminal prosecution.--
(1) Any person who violates subsection (a), (a.1) or (f)
is guilty of a misdemeanor of the first degree. Violation of
subsection (a) is a felony of the third degree if the
offender has previously been convicted of a violation of
subsection (a) or if the material was sold, distributed,
prepared or published for the purpose of resale.
* * *
(l) Penalty for attempt to evade prosecution.--Any person
who violates subsection (a.1) and attempts to avoid prosecution
by knowingly including false or misleading information in the
return address portion of the electronic communications such
that the recipient would be unable to send a reply message to
the original, authentic sender shall, in addition to any other
penalty imposed, upon conviction, be sentenced to pay a fine of
not less than $100 nor more than $500 per message or to
imprisonment for not more than 90 days, or both, for a first
offense and a fine of not less than $500 nor more than $1,000 or
to imprisonment for not more than one year, or both, for a
second or subsequent offense.
(m) Concurrent jurisdiction to prosecute.--The Attorney
General shall have the concurrent prosecutorial jurisdiction
with the district attorney for cases arising under subsection
(a.1) and may refer to the district attorney, with the district
attorney's consent, any violation or alleged violation of
subsection (a.1) which may come to the Attorney General's
attention.
Section 2. This act shall take effect in 60 days.
APPROVED--The 13th day of June, A. D. 2000.
THOMAS J. RIDGE
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