Text of KS SB 531 (2024)

Session of 2024 SENATE BILL No. 531 By Committee on Federal and State Affairs 2-22 AN ACT concerning children and minors; relating to material harmful to minors; creating a civil cause of action against schools that give or make available such materials to minors; relating to the criminal offenses of promoting obscenity and material harmful to minors; removing an affirmative defense for public and nonpublic schools thereof; amending K.S.A. 21-6401 and 21-6402 and repealing the existing sections. Be it enacted by the Legislature of the State of Kansas: New Section 1. (a) As used in this section: (1) "Harmful to minors" means the same as defined in K.S.A. 21- 6402, and amendments thereto. (2) "Material" means the same as defined in K.S.A. 21-6402, and amendments thereto. (3) "Minor" means an individual under 18 years of age. (4) "School" means a public school or accredited nonpublic school, private postecondary educational institution as defined in K.S.A. 74- 3201b, and amendments thereto, or postsecondary educational institution as defined in K.S.A. 74-3201b, and amendments thereto. (b) Notwithstanding any other provision of law, a school or an agent thereof shall not promote, present or display any material that is harmful to minors in such a way that minors will obtain or be exposed to view such material. (c) Any minor who obtains or views such material from a school, or the parent or guardian of such child, shall have a civil cause of action against such school if: (1) Employees or agents of the school gave or made available material harmful to minors; or (2) the school failed to take reasonable steps to restrict access to material harmful to minors. (d) Any minor, parent or legal guardian who prevails in an action brought under this section may recover $2,500 in statutory damages including actual damages, injunctive relief and any other appropriate relief. (e) It shall be an affirmative defense to this section that the employee or agent of the school: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 SB 531 2 (1) Had reasonable belief that the minor involved was 18 years of age or older or such minor showed a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that such minor was 18 years of age or older; or (2) verified that the minor was accompanied, at the time of the act, by the minor's parent or guardian or another adult purporting to be the minor's parent or guardian who signed a written statement to that effect. Sec. 2. K.S.A. 21-6401 is hereby amended to read as follows: 21- 6401. (a) Promoting obscenity is recklessly: (1) Manufacturing, mailing, transmitting, publishing, distributing, presenting, exhibiting or advertising any obscene material or obscene device; (2) possessing any obscene material or obscene device with intent to mail, transmit, publish, distribute, present, exhibit or advertise such material or device; (3) offering or agreeing to manufacture, mail, transmit, publish, distribute, present, exhibit or advertise any obscene material or obscene device; or (4) producing, presenting or directing an obscene performance or participating in a portion thereof which that is obscene or which that contributes to its obscenity. (b) Promoting obscenity to minors is promoting obscenity, as defined in subsection (a), where if a recipient of the obscene material or obscene device or a member of the audience of an obscene performance is a child under the age of 18 years. (c) (1) Promoting obscenity is a: (A) Class A nonperson misdemeanor, except as provided in (c)(1)(B); and (B) severity level 9, person felony upon a second or subsequent conviction. (2) Promoting obscenity to minors is a: (A) Class A nonperson misdemeanor, except as provided in (c)(2)(B); and (B) severity level 8, person felony upon a second or subsequent conviction. (3) Conviction of a violation of a municipal ordinance prohibiting acts which that constitute promoting obscenity or promoting obscenity to minors shall be considered a conviction of promoting obscenity or promoting obscenity to minors for the purpose of determining the number of prior convictions and the classification of the crime under this section. (d) Upon any conviction of promoting obscenity or promoting obscenity to minors, the court may require, in addition to any fine or imprisonment imposed, that the defendant enter into a reasonable 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 SB 531 3 recognizance with good and sufficient surety, in such sum as the court may direct, but not to exceed $50,000, conditioned that, in the event the defendant is convicted of a subsequent offense of promoting obscenity or promoting obscenity to minors within two years after such conviction, the defendant shall forfeit the recognizance. (e) Evidence that materials or devices were promoted to emphasize their prurient appeal shall be relevant in determining the question of the obscenity of such materials or devices. There shall be a rebuttable presumption that a person promoting obscene materials or obscene devices did so knowingly or recklessly if: (1) The materials or devices were promoted to emphasize their prurient appeal; or (2) the person is not a wholesaler and promotes the materials or devices in the course of the person's business. (f) As used in this section: (1) Any material or performance is "obscene" if: (A) The average person applying contemporary community standards would find that the material or performance, taken as a whole, appeals to the prurient interest; (B) the average person applying contemporary community standards would find that the material or performance has patently offensive representations or descriptions of: (i) Ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse or sodomy; or (ii) masturbation, excretory functions, sadomasochistic abuse or lewd exhibition of the genitals; and (C) taken as a whole, a reasonable person would find that the material or performance lacks serious literary, educational, artistic, political or scientific value; (2) "material" means any tangible thing which that is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or other manner; (3) "obscene device" means a device, including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs, except such devices disseminated or promoted for the purpose of medical or psychological therapy; (4) "performance" means any play, motion picture, dance or other exhibition performed before an audience; (5) "sexual intercourse" and "sodomy" mean the same as in K.S.A. 21-5501, and amendments thereto; and (6) "wholesaler" means a person who distributes or offers for distribution obscene materials or devices only for resale and not to the consumer and who does not manufacture, publish or produce such 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 SB 531 4 materials or devices. (g) It shall be a defense to a prosecution for promoting obscenity and promoting obscenity to minors that the: (1) Persons to whom the allegedly obscene material or obscene device was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational or governmental justification for possessing or viewing the same; (2) defendant is an officer, director, trustee or employee of a public library and the allegedly obscene material was acquired by such library and was disseminated in accordance with regular library policies approved by its governing body; or (3) allegedly obscene material or obscene device was purchased, leased or otherwise acquired by a public, private or parochial school, college or university, and that such material or device was either sold, leased, distributed or disseminated by a teacher, an instructor, professor or other faculty member or administrator of such school college or university as part of or incidental to an approved course or program of instruction at such school college or university. (h) Notwithstanding the provisions of K.S.A. 21-5204, and amendments thereto, to the contrary, it shall be an affirmative defense to any prosecution for promoting obscenity to minors that: (1) The defendant had reasonable cause to believe that the minor involved was 18 years old or over, and such minor exhibited to the defendant a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that such minor was 18 years old or more; or (2) an exhibition in a state of nudity is for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library. (i) The provisions of this section and the provisions of ordinances of any city prescribing a criminal penalty for exhibit of any obscene motion picture shown in a commercial showing to the general public shall not apply to a projectionist, or assistant projectionist, if such projectionist or assistant projectionist has no financial interest in the show or in its place of presentation other than regular employment as a projectionist or assistant projectionist and no personal knowledge of the contents of the motion picture. The provisions of this section shall not exempt any projectionist or assistant projectionist from criminal liability for any act unrelated to projection of motion pictures in commercial showings to the general public. Sec. 3. K.S.A. 21-6402 is hereby amended to read as follows: 21- 6402. (a) No person having custody, control or supervision of any 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 SB 531 5 commercial or public establishment shall knowingly: (1) Display any material which that is harmful to minors in such a way that minors, as a part of the invited general public, will be exposed to view such material or device; (2) present or distribute to a minor, or otherwise allow a minor to view, with or without consideration, any material which that is harmful to minors; or (3) present to a minor, or participate in presenting to a minor, with or without consideration, any performance which that is harmful to a minor. (b) Violation of this section is a class B nonperson misdemeanor. (c) Notwithstanding the provisions of K.S.A. 21-5204, and amendments thereto, to the contrary, it shall be an affirmative defense to any prosecution under this section that: (1) The allegedly harmful material or device was purchased, leased or otherwise acquired by a public, private or parochial school, college or university, and that such material or device was either sold, leased, distributed or disseminated by a teacher, instructor, professor or other faculty member or administrator of such school college or university as part of or incident to an approved course or program of instruction at such school college or university; (2) the defendant is an officer, director, trustee or employee of a public library and the allegedly harmful material or device was acquired by a public library and was disseminated in accordance with regular library policies approved by its governing body; (3) an exhibition in a state of nudity is for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library; (4) with respect to a prosecution for an act described by subsection (a)(1), the allegedly harmful material was kept behind blinder racks; (5) with respect to a prosecution for an act described by subsection (a)(2) or (a)(3), the defendant had reasonable cause to believe that the minor involved was 18 years old or over, and such minor exhibited to the defendant a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that such minor was 18 years old or more; and (6) with respect to a prosecution for an act described by subsection (a)(3), the allegedly harmful performance was viewed by the minor in the presence of such minor's parent or parents or such minor's legal guardian. (d) As used in this section: (1) "Blinder rack" means a device in which material is displayed in such a manner that the lower 2/3 of the material is not exposed to view; (2) "harmful to minors" means that quality of any description, exhibition, presentation or representation, in whatever form, of nudity, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 SB 531 6 sexual conduct, sexual excitement or sadomasochistic abuse when the material or performance, taken as a whole or, with respect to a prosecution for an act described by subsection (a)(1), that portion of the material that was actually exposed to the view of minors, 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 in sex to minors; (B) the average adult person applying contemporary community standards would find that the material or performance depicts or describes nudity, sexual conduct, sexual excitement or sadomasochistic abuse in a manner that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors; and (C) a reasonable person would find that the material or performance lacks serious literary, scientific, educational, artistic or political value for minors; (3) "material" means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, record, recording tape or video tape; (4) "minor" means any unmarried person under 18 years of age; (5) "nudity" means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering; the showing of the female breast with less than a full opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernible state of sexual excitement; (6) "performance" means any motion picture, file, video tape, played record, phonograph, tape recording, preview, trailer, play, show, skit, dance or other exhibition performed or presented to or before an audience of one or more, with or without consideration; (7) "sadomasochistic abuse" means flagellation or torture by or upon a person clad in undergarments, in a mask or bizarre costume or in the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed; (8) "sexual conduct" means acts of masturbation, homosexuality, sexual intercourse or physical contact with a person's clothed or unclothed genitals or pubic area or buttocks or with a human female's breast; and (9) "sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal. (e) The provisions of this section shall not apply to a retail sales clerk, if such clerk has no financial interest in the materials or performance or in the commercial establishment displaying, presenting or distributing such materials or presenting such performance other than regular employment as a retail sales clerk. The provisions of this section shall not exempt any 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 SB 531 7 retail sales clerk from criminal liability for any act unrelated to regular employment as a retail sales clerk. Sec. 4. K.S.A. 21-6401 and 21-6402 are hereby repealed. Sec. 5. This act shall take effect and be in force from and after its publication in the statute book. 1 2 3 4 5