House Bill 0933

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    Florida House of Representatives - 1999                 HB 933

        By Representatives Ryan, Ball, Sembler, Feeney and L.
    Miller





  1                      A bill to be entitled

  2         An act relating to obscenity; requiring public

  3         libraries to install and maintain computer

  4         software that prohibits access to obscene

  5         materials; requiring that such software be

  6         installed and maintained on at least one-half

  7         of the computers that a library makes available

  8         for public use; amending ss. 827.071, 847.0135,

  9         F.S.; defining the term "sexually explicit

10         image"; providing that a person may not

11         knowingly send or transmit a sexually explicit

12         image to a child under a specified age;

13         providing a penalty; providing an effective

14         date.

15

16  Be It Enacted by the Legislature of the State of Florida:

17

18         Section 1.  Each public library that makes available

19  for public use computer on-line service, Internet service, or

20  local bulletin-board service shall install and maintain

21  computer software that prohibits access to materials that

22  contain obscene descriptions, photographs, or depictions. Such

23  software must be installed and maintained on at least one-half

24  of the library's computers that are available for public use,

25  and, if the library makes only one computer available for

26  public use, such software must be installed and maintained on

27  that computer.

28         Section 2.  Section 827.071, Florida Statutes, is

29  amended to read:

30         827.071  Sexual performance by a child; penalties.--

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  1         (1)  As used in this section, the following definitions

  2  shall apply:

  3         (a)  "Deviate sexual intercourse" means sexual conduct

  4  between persons not married to each other consisting of

  5  contact between the penis and the anus, the mouth and the

  6  penis, or the mouth and the vulva.

  7         (b)  "Performance" means any play, motion picture,

  8  photograph, or dance or any other visual representation

  9  exhibited before an audience.

10         (c)  "Promote" means to procure, manufacture, issue,

11  sell, give, provide, lend, mail, deliver, transfer, transmute,

12  publish, distribute, circulate, disseminate, present, exhibit,

13  or advertise or to offer or agree to do the same.

14         (d)  "Sadomasochistic abuse" means flagellation or

15  torture by or upon a person, or the condition of being

16  fettered, bound, or otherwise physically restrained, for the

17  purpose of deriving sexual satisfaction from inflicting harm

18  on another or receiving such harm oneself.

19         (e)  "Sexual battery" means oral, anal, or vaginal

20  penetration by, or union with, the sexual organ of another or

21  the anal or vaginal penetration of another by any other

22  object; however, "sexual battery" does not include an act done

23  for a bona fide medical purpose.

24         (f)  "Sexual bestiality" means any sexual act between a

25  person and an animal involving the sex organ of the one and

26  the mouth, anus, or vagina of the other.

27         (g)  "Sexual conduct" means actual or simulated sexual

28  intercourse, deviate sexual intercourse, sexual bestiality,

29  masturbation, or sadomasochistic abuse; actual lewd exhibition

30  of the genitals; actual physical contact with a person's

31  clothed or unclothed genitals, pubic area, buttocks, or, if

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    Florida House of Representatives - 1999                 HB 933

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  1  such person is a female, breast, with the intent to arouse or

  2  gratify the sexual desire of either party; or any act or

  3  conduct which constitutes sexual battery or simulates that

  4  sexual battery is being or will be committed.

  5         (h)  "Sexual performance" means any performance or part

  6  thereof which includes sexual conduct by a child of less than

  7  18 years of age.

  8         (i)  "Sexually explicit image" means any visual

  9  depiction, image, characterization, or representation,

10  including any cartoon, caricature, video, or still photograph,

11  of an animal, human, or animate figure, either adult or child,

12  engaged in sexual conduct as defined in paragraph (g).

13         (j)(i)  "Simulated" means the explicit depiction of

14  conduct set forth in paragraph (g) which creates the

15  appearance of such conduct and which exhibits any uncovered

16  portion of the breasts, genitals, or buttocks.

17         (2)  A person is guilty of the use of a child in a

18  sexual performance if, knowing the character and content

19  thereof, he or she employs, authorizes, or induces a child

20  less than 18 years of age to engage in a sexual performance

21  or, being a parent, legal guardian, or custodian of such

22  child, consents to the participation by such child in a sexual

23  performance.  Whoever violates this subsection is guilty of a

24  felony of the second degree, punishable as provided in s.

25  775.082, s. 775.083, or s. 775.084.

26         (3)  A person is guilty of promoting a sexual

27  performance by a child when, knowing the character and content

28  thereof, he or she produces, directs, or promotes any

29  performance which includes sexual conduct by a child less than

30  18 years of age. Whoever violates this subsection is guilty of

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  1  a felony of the second degree, punishable as provided in s.

  2  775.082, s. 775.083, or s. 775.084.

  3         (4)  It is unlawful for any person to possess with the

  4  intent to promote any photograph, motion picture, exhibition,

  5  show, representation, or other presentation which, in whole or

  6  in part, includes any sexual conduct by a child.  The

  7  possession of three or more copies of such photograph, motion

  8  picture, representation, or presentation is prima facie

  9  evidence of an intent to promote. Whoever violates this

10  subsection is guilty of a felony of the second degree,

11  punishable as provided in s. 775.082, s. 775.083, or s.

12  775.084.

13         (5)  It is unlawful for any person to knowingly possess

14  a photograph, motion picture, exhibition, show,

15  representation, or other presentation which, in whole or in

16  part, he or she knows to include any sexual conduct by a

17  child.  The possession of each such photograph, motion

18  picture, exhibition, show, representation, or presentation is

19  a separate offense. Whoever violates this subsection is guilty

20  of a felony of the third degree, punishable as provided in s.

21  775.082, s. 775.083, or s. 775.084.

22         (6)  A person may not knowingly send, transmit,

23  distribute, or exchange by mail, facsimile, distribution, or

24  other means of communication, a sexually explicit image to any

25  child whom the person knows, should know, or has reason to

26  believe is less than 18 years of age. Whoever violates this

27  subsection commits a felony of the third degree, punishable as

28  provided in s. 775.082, s. 775.083, or s. 775.084.

29         Section 3.  Section 847.0135, Florida Statutes, is

30  amended to read:

31         847.0135  Computer pornography; penalties.--

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  1         (1)  SHORT TITLE.--This section shall be known and may

  2  be cited as the "Computer Pornography and Child Exploitation

  3  Prevention Act of 1986."

  4         (2)  COMPUTER PORNOGRAPHY.--A person who:

  5         (a)  Knowingly compiles, enters into, or transmits by

  6  means of computer;

  7         (b)  Makes, prints, publishes, or reproduces by other

  8  computerized means;

  9         (c)  Knowingly causes or allows to be entered into or

10  transmitted by means of computer; or

11         (d)  Buys, sells, receives, exchanges, or disseminates,

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13  any notice, statement, or advertisement, or any minor's name,

14  telephone number, place of residence, physical

15  characteristics, or other descriptive or identifying

16  information, for purposes of facilitating, encouraging,

17  offering, or soliciting sexual conduct of or with any minor,

18  or the visual depiction of such conduct. The fact that an

19  undercover operative or law enforcement officer was involved

20  in the detection and investigation of an offense under this

21  section shall not constitute a defense to a prosecution under

22  this section. Any person who violates the provisions of this

23  subsection commits a felony of the third degree, punishable as

24  provided for in s. 775.082, s. 775.083, or s. 775.084.

25         (3)  CERTAIN USES OF COMPUTER SERVICES PROHIBITED.--Any

26  person who knowingly utilizes a computer on-line service,

27  Internet service, or local bulletin board service to seduce,

28  solicit, lure, or entice, or attempt to seduce, solicit, lure,

29  or entice, a child or another person believed by the person to

30  be a child, to commit any illegal act described in chapter

31  794, relating to sexual battery; chapter 800, relating to

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    Florida House of Representatives - 1999                 HB 933

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  1  lewdness and indecent exposure; or chapter 827, relating to

  2  child abuse, commits a felony of the third degree, punishable

  3  as provided in s. 775.082, s. 775.083, or s. 775.084.

  4         (4)  CERTAIN USES OF ELECTRONIC DEVICES

  5  PROHIBITED.--Any person who knowingly uses a computer or

  6  electronic device to send, transmit, distribute, or dispense

  7  by means of computer or other electronic device or

  8  transmission, including a facsimile machine that sends or

  9  receives facsimiles in any digitally encoded manner, any

10  sexually explicit image as defined in s. 827.071(1)(i), to any

11  child whom the person knows, should know, or has reason to

12  believe is less than 18 years of age, commits a felony of the

13  third degree, punishable as provided in s. 775.082, s.

14  775.083, or s. 775.084.

15         (5)(4)  OWNERS OR OPERATORS OF COMPUTER SERVICES

16  LIABLE.--It is unlawful for any owner or operator of a

17  computer on-line service, Internet service, or local bulletin

18  board service knowingly to permit a subscriber to utilize the

19  service to commit a violation of this section.  Any person who

20  violates this section commits a misdemeanor of the first

21  degree, punishable by a fine not exceeding $2,000.

22         (6)(5)  STATE CRIMINAL JURISDICTION.--A person is

23  subject to prosecution in this state pursuant to chapter 910

24  for any conduct proscribed by this section which the person

25  engages in, while either within or outside this state, if by

26  such conduct the person commits a violation of this section

27  involving a child residing in this state, or another person

28  believed by the person to be a child residing in this state.

29         Section 4.  This act shall take effect October 1, 1999.

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    Florida House of Representatives - 1999                 HB 933

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  2                          SENATE SUMMARY

  3    Requires each public library that allows public access to
      on-line computer services to install and maintain
  4    computer software that prohibits access to obscene
      materials. Requires that such software be installed and
  5    maintained on at least one-half of the computers
      available to the public. Provides that it is a
  6    third-degree felony for a person to send or transmit by
      mail, computer, or facsimile a sexually explicit image to
  7    a child whom the person knows or should know is less than
      18 years of age.
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