Pennsylvania Act 2000-25 — CRIMES CODE (18 PA.C.S.) - AMEND SEXUAL MATERIAL VIA ELECTRONIC

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