Text of MO HB 1364 (2023)

FIRST REGULAR SESSION HOUSE BILL NO. 1364 102ND GENERAL ASSEMBLY INTRODUCED BY REPRESENTATIVE COOK. 2626H.01I DANA RADEMAN MILLER, Chief Clerk AN ACT To repeal section 573.010, RSMo, and to enact in lieu thereof three new sections relating to offenses involving the viewing of certain activities, with penalty provisions. Be it enacted by the General Assembly of the state of Missouri, as follows: Section A. Section 573.010, RSMo, is repealed and three new sections enacted in lieu 2 thereof, to be known as sections 573.010, 573.521, and 573.522, to read as follows: 573.010. As used in this chapter the following terms shall mean: 2 (1) "Adult cabaret", a nightclub, bar, juice bar, restaurant, bottle club, or other 3 commercial establishment, regardless of whether alcoholic beverages are served, which 4 regularly features persons who appear semi-nude; 5 (2) "Adult cabaret performance", a performance that appeals to a prurient 6 interest in a location other than an adult cabaret and that features topless dancers, go-go 7 dancers, exotic dancers, strippers, drag queens, or similar entertainers who provide 8 entertainment, regardless of whether the performance is for consideration; 9 (3) "Characterized by", describing the essential character or dominant theme of an 10 item; 11 [(3)] (4) "Child", any person under the age of fourteen; 12 [(4)] (5) "Child pornography": 13 (a) Any obscene material or performance depicting sexual conduct, sexual contact as 14 defined in section 566.010, or a sexual performance and which has as one of its participants or 15 portrays as an observer of such conduct, contact, or performance a minor; or EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language. 16 (b) Any visual depiction, including any photograph, film, video, picture, or computer 17 or computer-generated image or picture, whether made or produced by electronic, 18 mechanical, or other means, of sexually explicit conduct where: 19 a. The production of such visual depiction involves the use of a minor engaging in 20 sexually explicit conduct; 21 b. Such visual depiction is a digital image, computer image, or computer-generated 22 image that is, or is indistinguishable from, that of a minor engaging in sexually explicit 23 conduct, in that the depiction is such that an ordinary person viewing the depiction would 24 conclude that the depiction is of an actual minor engaged in sexually explicit conduct; or 25 c. Such visual depiction has been created, adapted, or modified to show that an 26 identifiable minor is engaging in sexually explicit conduct. "Identifiable minor" means a 27 person who was a minor at the time the visual depiction was created, adapted, or modified; or 28 whose image as a minor was used in creating, adapting, or modifying the visual depiction; 29 and who is recognizable as an actual person by the person's face, likeness, or other 30 distinguishing characteristic, such as a unique birthmark or other recognizable feature. The 31 term identifiable minor shall not be construed to require proof of the actual identity of the 32 identifiable minor; 33 [(5)] (6) "Drag queen", a male or female performer who adopts a flamboyant or 34 parodic feminine persona with glamorous or exaggerated costumes and makeup; 35 (7) "Drag queen story hour", an event hosted by a drag queen who reads 36 children's books and engages in other learning activities with minor children present; 37 (8) "Employ", "employee", or "employment", any person who performs any service 38 on the premises of a sexually oriented business, on a full-time, part-time, or contract basis, 39 whether or not the person is denominated an employee, independent contractor, agent, or 40 otherwise. Employee does not include a person exclusively on the premises for repair or 41 maintenance of the premises or for the delivery of goods to the premises; 42 [(6)] (9) "Explicit sexual material", any pictorial or three-dimensional material 43 depicting human masturbation, deviate sexual intercourse, sexual intercourse, direct physical 44 stimulation or unclothed genitals, sadomasochistic abuse, or emphasizing the depiction of 45 postpubertal human genitals; provided, however, that works of art or of anthropological 46 significance shall not be deemed to be within the foregoing definition; 47 [(7)] (10) "Furnish", to issue, sell, give, provide, lend, mail, deliver, transfer, 48 circulate, disseminate, present, exhibit or otherwise provide; 49 [(8)] (11) "Material", anything printed or written, or any picture, drawing, 50 photograph, motion picture film, videotape or videotape production, or pictorial 51 representation, or any recording or transcription, or any mechanical, chemical, or electrical 52 reproduction, or stored computer data, or anything which is or may be used as a means of HB 1364 2 53 communication. Material includes undeveloped photographs, molds, printing plates, stored 54 computer data and other latent representational objects; 55 [(9)] (12) "Minor", any person less than eighteen years of age; 56 [(10)] (13) "Nudity" or "state of nudity", the showing of the human genitals, pubic 57 area, vulva, anus, anal cleft, or the female breast with less than a fully opaque covering of any 58 part of the nipple or areola; 59 [(11)] (14) "Obscene", any material or performance if, taken as a whole: 60 (a) Applying contemporary community standards, its predominant appeal is to 61 prurient interest in sex; and 62 (b) The average person, applying contemporary community standards, would find the 63 material depicts or describes sexual conduct in a patently offensive way; and 64 (c) A reasonable person would find the material lacks serious literary, artistic, 65 political or scientific value; 66 [(12)] (15) "Operator", any person on the premises of a sexually oriented business 67 who causes the business to function, puts or keeps the business in operation, or is authorized 68 to manage the business or exercise overall operational control of the business premises. A 69 person may be found to be operating or causing to be operated a sexually oriented business 70 whether or not such person is an owner, part owner, or licensee of the business; 71 [(13)] (16) "Performance", any play, motion picture film, videotape, dance or 72 exhibition performed before an audience of one or more; 73 [(14)] (17) "Pornographic for minors", any material or performance if the following 74 apply: 75 (a) The average person, applying contemporary community standards, would find 76 that the material or performance, taken as a whole, has a tendency to cater or appeal to a 77 prurient interest of minors; and 78 (b) The material or performance depicts or describes nudity, sexual conduct, the 79 condition of human genitals when in a state of sexual stimulation or arousal, or 80 sadomasochistic abuse in a way which is patently offensive to the average person applying 81 contemporary adult community standards with respect to what is suitable for minors; and 82 (c) The material or performance, taken as a whole, lacks serious literary, artistic, 83 political, or scientific value for minors; 84 [(15)] (18) "Premises", the real property upon which a sexually oriented business is 85 located, and all appurtenances thereto and buildings thereon, including but not limited to the 86 sexually oriented business, the grounds, private walkways, and parking lots or parking 87 garages or both; HB 1364 3 88 [(16)] (19) "Promote", to manufacture, issue, sell, provide, mail, deliver, transfer, 89 transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer 90 or agree to do the same, by any means including a computer; 91 [(17)] (20) "Regularly", the consistent and repeated doing of the act so described; 92 [(18)] (21) "Sadomasochistic abuse", flagellation or torture by or upon a person as an 93 act of sexual stimulation or gratification; 94 [(19)] (22) "Semi-nude" or "state of semi-nudity", the showing of the female breast 95 below a horizontal line across the top of the areola and extending across the width of the 96 breast at such point, or the showing of the male or female buttocks. Such definition includes 97 the lower portion of the human female breast, but shall not include any portion of the 98 cleavage of the female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar 99 wearing apparel provided the areola is not exposed in whole or in part; 100 [(20)] (23) "Sexual conduct", actual or simulated, normal or perverted acts of human 101 masturbation; deviate sexual intercourse; sexual intercourse; or physical contact with a 102 person's clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act 103 of apparent sexual stimulation or gratification or any sadomasochistic abuse or acts including 104 animals or any latent objects in an act of apparent sexual stimulation or gratification; 105 [(21)] (24) "Sexually explicit conduct", actual or simulated: 106 (a) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral- 107 anal, whether between persons of the same or opposite sex; 108 (b) Bestiality; 109 (c) Masturbation; 110 (d) Sadistic or masochistic abuse; or 111 (e) Lascivious exhibition of the genitals or pubic area of any person; 112 [(22)] (25) "Sexually oriented business" includes: 113 (a) An adult bookstore or adult video store. "Adult bookstore" or "adult video store" 114 means a commercial establishment which, as one of its principal business activities, offers for 115 sale or rental for any form of consideration any one or more of the following: books, 116 magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video 117 cassettes, compact discs, digital video discs, slides, or other visual representations which are 118 characterized by their emphasis upon the display of specified sexual activities or specified 119 anatomical areas. A principal business activity exists where the commercial establishment: 120 a. Has a substantial portion of its displayed merchandise which consists of such 121 items; or 122 b. Has a substantial portion of the wholesale value of its displayed merchandise 123 which consists of such items; or HB 1364 4 124 c. Has a substantial portion of the retail value of its displayed merchandise which 125 consists of such items; or 126 d. Derives a substantial portion of its revenues from the sale or rental, for any form of 127 consideration, of such items; or 128 e. Maintains a substantial section of its interior business space for the sale or rental of 129 such items; or 130 f. Maintains an adult arcade. "Adult arcade" means any place to which the public is 131 permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or 132 mechanically controlled still or motion picture machines, projectors, or other image- 133 producing devices are regularly maintained to show images to five or fewer persons per 134 machine at any one time, and where the images so displayed are characterized by their 135 emphasis upon matter exhibiting specified sexual activities or specified anatomical areas; 136 (b) An adult cabaret; 137 (c) An adult motion picture theater. "Adult motion picture theater" means a 138 commercial establishment where films, motion pictures, video cassettes, slides, or similar 139 photographic reproductions, which are characterized by their emphasis upon the display of 140 specified sexual activities or specified anatomical areas are regularly shown to more than five 141 persons for any form of consideration; 142 (d) A semi-nude model studio. "Semi-nude model studio" means a place where 143 persons regularly appear in a state of semi-nudity for money or any form of consideration in 144 order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly 145 depicted by other persons. Such definition shall not apply to any place where persons 146 appearing in a state of semi-nudity do so in a modeling class operated: 147 a. By a college, junior college, or university supported entirely or partly by taxation; 148 b. By a private college or university which maintains and operates educational 149 programs in which credits are transferable to a college, junior college, or university supported 150 entirely or partly by taxation; or 151 c. In a structure: 152 (i) Which has no sign visible from the exterior of the structure and no other 153 advertising that indicates a semi-nude person is available for viewing; and 154 (ii) Where, in order to participate in a class, a student must enroll at least three days in 155 advance of the class; 156 (e) A sexual encounter center. "Sexual encounter center" means a business or 157 commercial enterprise that, as one of its principal purposes, purports to offer for any form of 158 consideration physical contact in the form of wrestling or tumbling between two or more 159 persons when one or more of the persons is semi-nude; HB 1364 5 160 [(23)] (26) "Sexual performance", any performance, or part thereof, which includes 161 sexual conduct by a child who is less than eighteen years of age; 162 [(24)] (27) "Specified anatomical areas" include: 163 (a) Less than completely and opaquely covered: human genitals, pubic region, 164 buttock, and female breast below a point immediately above the top of the areola; and 165 (b) Human male genitals in a discernibly turgid state, even if completely and 166 opaquely covered; 167 [(25)] (28) "Specified sexual activity", includes any of the following: 168 (a) Intercourse, oral copulation, masturbation, or sodomy; or 169 (b) Excretory functions as a part of or in connection with any of the activities 170 described in paragraph (a) of this subdivision; 171 [(26)] (29) "Substantial", at least thirty percent of the item or items so modified; 172 [(27)] (30) "Visual depiction", includes undeveloped film and videotape, and data 173 stored on computer disk or by electronic means which is capable of conversion into a visual 174 image. 573.521. 1. A person commits the offense of engaging in an adult cabaret 2 performance or organizing or authorizing the viewing of an adult cabaret performance 3 if such performance is: 4 (1) On public property; or 5 (2) In a location where the adult cabaret performance could be viewed by a 6 person who is a minor. 7 2. The offense of engaging in an adult cabaret performance or organizing or 8 authorizing the viewing of an adult cabaret performance is a class A misdemeanor. 9 3. The provisions of this section shall preempt any ordinance, regulation, 10 restriction, or license that was lawfully adopted or issued by a political subdivision prior 11 to August 28, 2023, if such ordinance, regulation, restriction, or license conflicts with the 12 provisions of this section. 13 4. If a school district or charter school, or an employee or a volunteer of the 14 school district or charter school while in the performance of the employee's or 15 volunteer's duties on behalf of the school district or charter school, violates the 16 provisions of this section, in each school year, the department of elementary and 17 secondary education shall withhold from the school district or charter school a 18 percentage of any monthly distribution of state formula funding and any other revenues 19 from the state that are distributed to such school district or charter school. The 20 department shall withhold such distributions for the month in which the violation 21 occurs and all months remaining in the school year in which the violation occurs in the 22 following percentages: HB 1364 6 23 (1) For the first violation, twenty-five percent; 24 (2) For the second violation, fifty percent; and 25 (3) For the third and subsequent violations, one hundred percent. 573.522. 1. A person commits the offense of organizing or authorizing the 2 viewing of a drag queen story hour if such viewing is: 3 (1) On public property; or 4 (2) In a location where the drag queen story hour could be viewed by a person 5 who is a minor. 6 2. The offense of organizing or authorizing the viewing of a drag queen story 7 hour is a class A misdemeanor. 8 3. The provisions of this section shall preempt any ordinance, regulation, 9 restriction, or license that was lawfully adopted or issued by a political subdivision prior 10 to August 28, 2023, if such ordinance, regulation, restriction, or license conflicts with the 11 provisions of this section. 12 4. If a school district or charter school, or an employee or a volunteer of the 13 school district or charter school while in the performance of the employee's or 14 volunteer's duties on behalf of the school district or charter school, violates the 15 provisions of this section, in each school year, the department of elementary and 16 secondary education shall withhold from the school district or charter school a 17 percentage of any monthly distribution of state formula funding and any other revenues 18 from the state that are distributed to such school district or charter school. The 19 department shall withhold such distributions for the month in which the violation 20 occurs and all months remaining in the school year in which the violation occurs in the 21 following percentages: 22 (1) For the first violation, twenty-five percent; 23 (2) For the second violation, fifty percent; and 24 (3) For the third and subsequent violations, one hundred percent. ✔ HB 1364 7