Iowa General Assembly Daily Bills, Amendments & Study Bills March 17, 2009

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HF 767

House File 767 - Introduced

HOUSE FILE

BY COMMITTEE ON PUBLIC SAFETY
(SUCCESSOR TO HSB 96)

Passed House, Date Passed Senate, Date

Vote: Ayes Nays Vote: Ayes Nays

Approved


A BILL FOR
1 An Act relating to the possession, distribution, and reporting of

2 obscene material and making penalties applicable.

3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

4 TLSB 1370HV 83

5 jm/rj/14

House File 767 - Introduced continued


PAG LIN

1 1 Section 1. Section 728.1, subsection 3, Code 2009, is

1 2 amended to read as follows:

1 3 3. "Material" means any book, magazine, newspaper or other

1 4 printed or written material or any picture, drawing,

1 5 photograph, motion picture, or other pictorial representation

1 6 or any statue or other figure, or any recording, transcription

1 7 or mechanical, chemical or electrical reproduction, or any


1 8 live transmission, or any other articles, equipment, machines

1 9 or materials.

1 10 Sec. 2. Section 728.1, subsection 7, paragraphs e and g,

1 11 Code 2009, are amended to read as follows:

1 12 e. Sadomasochistic abuse of a minor for the purpose of

1 13 arousing or satisfying the sexual desires of a person who may

1 14 view a visual depiction of the abuse.

1 15 g. Nudity of a minor for the purpose of arousing or

1 16 satisfying the sexual desires of a person who may view a

1 17 visual depiction of the nude minor.

1 18 Sec. 3. Section 728.1, Code 2009, is amended by adding the

1 19 following new subsection:

1 20 NEW SUBSECTION. 11. "Visual depiction" means but is not

1 21 limited to any picture, slide, photograph, digital or

1 22 electronic image, negative image, undeveloped film, motion

1 23 picture, videotape, digital or electronic recording, live

1 24 transmission, or other pictorial or three=dimensional

1 25 representation.

1 26 Sec. 4. Section 728.12, subsection 1, Code 2009, is

1 27 amended to read as follows:

1 28 1. It shall be unlawful to employ, use, persuade, induce,

1 29 entice, coerce, solicit, knowingly permit, or otherwise cause

1 30 or attempt to cause a minor to engage in a prohibited sexual

1 31 act or in the simulation of a prohibited sexual act. A person

1 32 must know, or have reason to know, or intend that the act or

1 33 simulated act may be photographed, filmed, or otherwise

1 34 preserved in a negative, slide, book, magazine, computer,


1 35 computer disk, or other print or visual medium, or be
House File 767 - Introduced continued
2 1 preserved in an electronic, magnetic, or optical storage

2 2 system, or in any other type of storage system visual

2 3 depiction. A person who commits a violation of this

2 4 subsection commits a class "C" felony. Notwithstanding

2 5 section 902.9, the court may assess a fine of not more than

2 6 fifty thousand dollars for each offense under this subsection

2 7 in addition to imposing any other authorized sentence.

2 8 Sec. 5. Section 728.12, subsection 3, unnumbered paragraph

2 9 1, Code 2009, is amended to read as follows:

2 10 It shall be unlawful to knowingly purchase or possess a

2 11 negative, slide, book, magazine, computer, computer disk, or

2 12 other print or visual medium, or an electronic, magnetic, or

2 13 optical storage system, or any other type of storage system

2 14 which depicts visual depiction of a minor engaging in a

2 15 prohibited sexual act or the simulation of a prohibited sexual

2 16 act. A person who commits a violation of this subsection

2 17 commits an aggravated misdemeanor for a first offense and a

2 18 class "D" felony for a second or subsequent offense. For

2 19 purposes of this subsection, an offense is considered a second

2 20 or subsequent offense if, prior to the person's having been

2 21 convicted under this subsection, any of the following apply:

2 22 Sec. 6. Section 728.14, subsections 1 and 2, Code 2009,

2 23 are amended to read as follows:

2 24 1. A commercial film and photographic print processor who

2 25 has knowledge of or observes, within the scope of the

2 26 processor's professional capacity or employment, a film,


2 27 photograph, video tape, negative, or slide which depicts

2 28 visual depiction of a minor whom the processor knows or

2 29 reasonably should know to be under the age of eighteen,

2 30 engaged in a prohibited sexual act or in the simulation of a

2 31 prohibited sexual act, shall report the visual depiction to

2 32 the county attorney immediately or as soon as possible as

2 33 required in this section. The processor shall not report to

2 34 the county attorney visual depictions involving mere nudity of

2 35 the minor, but shall report visual depictions involving a
House File 767 - Introduced continued
3 1 prohibited sexual act. This section shall not be construed to

3 2 require a processor to review all films, photographs, video


3 3 tapes, negatives, or slides visual depictions delivered to the

3 4 processor within the processor's professional capacity or

3 5 employment.

3 6 2. For purposes of this section, "prohibited sexual act"

3 7 means any of the following:

3 8 a. A sex act as defined in section 702.17.

3 9 b. An act of bestiality involving a minor.

3 10 c. Fondling or touching the pubes or genitals of a minor

3 11 for the purpose of arousing or satisfying the sexual desires

3 12 of a person who may view a visual depiction of the act.

3 13 d. Fondling or touching the pubes or genitals of a person

3 14 by a minor for the purpose of arousing or satisfying the

3 15 sexual desires of a person who may view a visual depiction of

3 16 the act.

3 17 e. Sadomasochistic abuse of a minor for the purpose of

3 18 arousing or satisfying the sexual desires of a person who may

3 19 view a visual depiction of the abuse.

3 20 f. Sadomasochistic abuse of a person by a minor for the

3 21 purpose of arousing or satisfying the sexual desires of a

3 22 person who may view a visual depiction of the abuse.

3 23 g. Nudity of a minor for the purpose of arousing or

3 24 satisfying the sexual desires of a person who may view a

3 25 visual depiction of the nude minor.

3 26 2. 3. A person who violates this section is guilty of a

3 27 simple misdemeanor.

3 28 EXPLANATION

3 29 This bill relates to the possession or distribution of

3 30 obscene material.

3 31 The bill modifies the definition of "material" in Code

3 32 chapter 728 to include live transmissions.

3 33 Under the bill, the modification of the definition of the

3 34 term "material" results in changes to the elements of the

3 35 following criminal offenses within Code chapter 728:
House File 767 - Introduced continued
4 1 dissemination of obscene material to minors (Code section

4 2 728.2), admitting minors to premises where obscene material is

4 3 exhibited (Code section 728.3), rental or sale of hard=core

4 4 pornography (Code section 728.4), sexual exploitation of a

4 5 minor (Code section 728.12(2)), and telephone dissemination of

4 6 obscene material (Code section 728.15).

4 7 The bill also defines the term "visual depiction" within

4 8 Code chapter 728 to include any picture, slide, photograph,

4 9 digital or electronic image, negative image, undeveloped film,

4 10 motion picture, videotape, digital or electronic recording,

4 11 live transmission, or other pictorial or three=dimensional

4 12 representation.

4 13 The changes in the bill to the criminal offense of sexual

4 14 exploitation of a minor in Code section 728.12(3) are in

4 15 response to the State v. Muhlenbruch, 728 N.W.2d 212 (Iowa

4 16 2007).

4 17 The bill modifies the elements of the criminal offense of

4 18 sexual exploitation of a minor in Code section 728.12(3) by

4 19 substituting references for a computer and other types of

4 20 storage systems with the term "visual depiction" as defined by

4 21 the bill. The bill also substitutes "visual depiction" for

4 22 storage systems referenced in Code sections 728.12(1) and

4 23 728.14 to conform with the sexual exploitation of a minor

4 24 changes in Code section 728.12(3) due to the Muhlenbruch case.

4 25 In addition, the word "visual" is added before the word

4 26 "depiction" throughout Code chapter 728 to conform with the

4 27 changes made by the bill.

4 28 LSB 1370HV 83

4 29 jm/rj/14





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