Key: (1) language to be deleted (2) new language
Laws of Minnesota 1983 CHAPTER 204--H.F.No. 114 An act relating to crimes; prohibiting promotion of minors to engage in sexual performance; defining terms; prohibiting dissemination and possession of works depicting minors in sexual performance; providing penalties; amending Minnesota Statutes 1982, sections 609.342; 609.343; 609.344; 609.345; 609.3641, subdivision 2; 609.3642, subdivision 2; 609.3643, subdivision 2; 609.3644, subdivision 2; 617.241; 617.243; 617.246; 617.247; and 617.298; repealing Minnesota Statutes 1982, section 617.298, subdivision 4. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: Section 1. Minnesota Statutes 1982, section 609.342, is amended to read: 609.342 [CRIMINAL SEXUAL CONDUCT IN THE FIRST DEGREE.] A person is guilty of criminal sexual conduct in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $20,000, or both, if he engages in sexual penetration with another person and if any of the following circumstances exists: (a) The complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense; or (b) The complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant, and uses this authority to cause the complainant to submit. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense; or (c) Circumstances existing at the time of the act cause the complainant to have a reasonable fear of imminent great bodily harm to the complainant or another; or (d) The actor is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit; or (e) The actor causes personal injury to the complainant, and either of the following circumstances exist: (i) The actor uses force or coercion to accomplish sexual penetration; or (ii) The actor knows or has reason to know that the complainant is mentally defective, mentally incapacitated, or physically helpless; or (f) The actor is aided or abetted by one or more accomplices within the meaning of section 609.05, and either of the following circumstances exists: (i) An accomplice uses force or coercion to cause the complainant to submit; or (ii) An accomplice is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant reasonably to believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit. Sec. 2. Minnesota Statutes 1982, section 609.343, is amended to read: 609.343 [CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE.] A person is guilty of criminal sexual conduct in the second degree and may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $15,000, or both, if he engages in sexual contact with another person and if any of the following circumstances exists: (a) The complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense. In a prosecution under this clause, the state is not required to prove that the sexual contact was coerced; or (b) The complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant, and uses this authority to cause the complainant to submit. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense; or (c) Circumstances existing at the time of the act cause the complainant to have a reasonable fear of imminent great bodily harm to the complainant or another; or (d) The actor is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the dangerous weapon to cause the complainant to submit; or (e) The actor causes personal injury to the complainant, and either of the following circumstances exist: (i) The actor uses force or coercion to accomplish the sexual contact; or (ii) The actor knows or has reason to know that the complainant is mentally defective, mentally incapacitated, or physically helpless; or (f) The actor is aided or abetted by one or more accomplices within the meaning of section 609.05, and either of the following circumstances exists: (i) An accomplice uses force or coercion to cause the complainant to submit; or (ii) An accomplice is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit. Sec. 3. Minnesota Statutes 1982, section 609.344, is amended to read: 609.344 [CRIMINAL SEXUAL CONDUCT IN THE THIRD DEGREE.] A person is guilty of criminal sexual conduct in the third degree and may be sentenced to imprisonment for not more than ten years, or to payment of a fine of not more than $10,000, or both, if he engages in sexual penetration with another person and any of the following circumstances exists: (a) The complainant is under 13 years of age and the actor is no more than 36 months older than the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant shall be a defense; or (b) The complainant is at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant. In any such case it shall be an affirmative defense, which must be proved by a preponderance of the evidence, that the actor believes the complainant to be 16 years of age or older. If the actor in such a case is no more than 48 months but more than 24 months older than the complainant, he may be sentenced to imprisonment for not more than five years. Consent by the complainant is not a defense; or (c) The actor uses force or coercion to accomplish the penetration; or (d) The actor knows or has reason to know that the complainant is mentally defective, mentally incapacitated, or physically helpless. Sec. 4. Minnesota Statutes 1982, section 609.345, is amended to read: 609.345 [CRIMINAL SEXUAL CONDUCT IN THE FOURTH DEGREE.] A person is guilty of criminal sexual conduct in the fourth degree and may be sentenced to imprisonment for not more than five years, or to payment of a fine of not more than $5,000, or both, if he engages in sexual contact with another person and if any of the following circumstances exists: (a) The complainant is under 13 years of age and the actor is no more than 36 months older than the complainant. Neither mistake as to the complainant's age or consent to the act by the complainant is a defense. In a prosecution under this clause, the state is not required to prove that the sexual contact was coerced; or (b) The complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant or in a position of authority over the complainant and uses this authority to cause the complainant to submit. In any such case, it shall be an affirmative defense which must be proved by a preponderance of the evidence that the actor believes the complainant to be 16 years of age or older; or (c) The actor uses force or coercion to accomplish the sexual contact; or (d) The actor knows or has reason to know that the complainant is mentally defective, mentally incapacitated, or physically helpless. Sec. 5. Minnesota Statutes 1982, section 609.3641, subdivision 2, is amended to read: Subd. 2. [PENALTY.] A person convicted under subdivision 1, clause (1), may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $20,000, or both. Except when imprisonment is required by section 609.346, the court may stay imposition or execution of sentence if it finds that a stay is in the best interest of the complainant or the family unit. A person convicted under subdivision 1, clause (2), may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $20,000, or both. Sec. 6. Minnesota Statutes 1982, section 609.3642, subdivision 2, is amended to read: Subd. 2. [PENALTY.] A person convicted under subdivision 1, clause (1), may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $15,000, or both. Except when imprisonment is required by section 609.346, the court may stay imposition or execution of the sentence if it finds that a stay is in the best interest of the complainant or the family unit. A person convicted under subdivision 1, clause (2), may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $15,000, or both. Sec. 7. Minnesota Statutes 1982, section 609.3643, subdivision 2, is amended to read: Subd. 2. [PENALTY.] A person convicted under subdivision 1, clause (1), may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $10,000, or both. Except when imprisonment is required by section 609.346, the court may stay imposition or execution of the sentence if it finds that a stay is in the best interest of the complainant or the family unit. A person convicted under subdivision 1, clause (2), may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $10,000, or both. Sec. 8. Minnesota Statutes 1982, section 609.3644, subdivision 2, is amended to read: Subd. 2. [PENALTY.] A person convicted under subdivision 1, clause (1), may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $5,000, or both. Except when imprisonment is required by section 609.346, the court may stay imposition or execution of the sentence if it finds that a stay is in the best interest of the complainant or the family unit. A person convicted under subdivision 1, clause (2), may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $5,000, or both. Sec. 9. Minnesota Statutes 1982, section 617.241, is amended to read: 617.241 [OBSCENE MATERIALS; DISTRIBUTION PROHIBITED; PENALTY.] Subdivision 1. [DEFINITIONS.] For purposes of this section, the following terms have the meanings given them: (a) "Obscene" means that the work, taken as a whole, appeals to the prurient interest in sex of the average person, which portrays patently offensive sexual conduct and which, taken as a whole, does not have serious literary, artistic, political, or scientific value. In order to determine that a work is obscene, the trier of fact must find: (i) that the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest in sex of the average person; (ii) that the work depicts patently offensive sexual conduct specifically defined by clause (b); and (iii) that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (b) "Patently offensive sexual conduct" includes any of the following depicted sexual conduct: (i) An act of sexual intercourse, normal or perverted, actual or simulated, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal. (ii) Sadomasochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a revealing costume or the condition of being fettered, bound, or otherwise physically restricted on the part of one so clothed. (iii) Masturbation or lewd exhibitions of the genitals including any explicit, close-up representation of a human genital organ. (iv) Physical contact or simulated physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification. (c) "Community" means the political subdivision from which persons properly qualified to serve as jurors in a civil proceeding are chosen. Subd. 2. [CRIME.] It is unlawful for any person knowingly to exhibit, sell, print, offer to sell, give away, circulate, publish, distribute, or attempt to distribute any obscene book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film, play, image, instrument, statue, drawing, or other article which is obscene."Obscene" for the purpose of this section, is definedas follows: Whether to the average person, applyingcontemporary community standards, the dominant theme of thematerial taken as a whole appeals to prurient interests.Subd. 3. [PENALTY.] Any person violating any provision of this section shall be fined up to $5,000 for the first offense and up to $10,000 for the second or a subsequent offense. Sec. 10. Minnesota Statutes 1982, section 617.243, is amended to read: 617.243 [INDECENT LITERATURE, DISTRIBUTION.] Subdivision 1. [PROHIBITED ACTIVITY.]AnyNo person, copartnership or corporation shallnot, as a condition to a sale or delivery for resale of any paper, magazine, book, comic, periodical or publication, require that the purchaser or consignee receive for resale any other article, book, comic or other publication reasonably believed by the purchaser or consignee to be obscene as defined in section 617.241. Subd. 2. [PENALTY.]TheA violation ofthe provisions ofsubdivision 1 is a gross misdemeanor. Sec. 11. Minnesota Statutes 1982, section 617.246, is amended to read: 617.246 [PROHIBITING PROMOTIONUSE OF MINORSTO ENGAGEINOBSCENE WORKSSEXUAL PERFORMANCE PROHIBITED.] Subdivision 1. [DEFINITIONS.] (a) For the purpose of this section, the terms defined in this subdivisionshallhave the meanings given them. (b) "Minor" means any personwho has not attained his orher 18th birthdayunder the age of 18. (c) "Promote" means to produce, direct, publish, manufacture, issue, or advertise. (d) "Sexual performance" means any play, dance or other exhibition presented before an audience or for purposes of visual or mechanical reproduction which depictspatentlyoffensivesexual conduct as defined by clause(f)(e). (e)"An obscene work" is a picture, a film, photograph,negative, slide, drawing or similar visual representationdepicting a minor, which taken as a whole appeals to pedophilesor to the prurient interest in sex of the average person, whichportrays patently offensive sexual conduct and which, taken as awhole, does not have serious literary, artistic, political orscientific value. In determining whether or not a work is anobscene work the trier of the fact must find: (i) that theaverage person, applying contemporary community standards wouldfind that the work, taken as a whole appeals to pedophiles or tothe prurient interest in sex of the average person; and (ii)that the work depicts patently offensive sexual conductspecifically defined by clause (f); and (iii) that the work,taken as a whole, lacks serious literary, artistic, political orscientific value.(f)"Patently offensiveSexual conduct"includesmeans any of the followingdepicted sexual conductif the depiction involves a minor: (i) An act of sexual intercourse, normal or perverted, actual or simulated, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal. (ii) Sadomasochistic abuse, meaning flagellationor, torture, or similar demeaning acts inflicted by or upon a person who is nude or clad in undergarments or in a revealing costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed. (iii) Masturbation or lewd exhibitions of the genitalsincluding any explicit, close up representation of a humangenital organ. (iv) Physical contact or simulated physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification. (f) "Work" means an original or reproduction of a picture, film, photograph, negative, slide, videotape, videodisc, or drawing. Subd. 2. [USE OF MINOR.] It is unlawful for a person to promote, employ, use or permit a minor to engage in or assist others to engage in posing or modeling alone or with others in any sexual performancefor purposes of preparing an obscene workif the person knows or has reason to know that the conduct intended is a sexual performance.A violation of this subdivision is a felony.Any person who violates this subdivision is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $5,000 for the first offense and $10,000 for a second or subsequent offense, or both. Subd. 3. [OPERATION OR OWNERSHIP OF BUSINESS.] A person who owns or operates a business in whichan obscenea work depicting a minor in a sexual performance, as defined in this section, is disseminated, and who knows the content and character of theobscenework disseminated, is guilty of a felony and may be sentenced to imprisonment for not more than five years, or to payment of a fine of not more than $5,000 for the first offense and $10,000 for a second or subsequent offense, or both. Subd. 4. [DISSEMINATION.] A person who, knowing or with reason to know its content and character, disseminates for profitan obscenea work depicting a minor in sexual performance, as defined in this section, is guilty of a felony and may be sentenced to imprisonment for not more than five years, or to payment of a fine of not more than $5,000 for the first offense and $10,000 for a second or subsequent offense, or both. Subd. 5. [CONSENT; MISTAKE.] Neither consent to sexual performance by a minor or his parent, guardian, or custodian nor mistake as to the minor's age is a defense to a charge of violation of this section. Sec. 12. Minnesota Statutes 1982, section 617.247, is amended to read: 617.247 [POSSESSION OFOBSCENEPICTORIAL REPRESENTATIONS OF MINORS.] Subdivision 1. [POLICY; PURPOSE.] It is the policy of the legislature in enacting this section to protect minors from the physical and psychological damage caused by their being used inobscenephotographic representations of sexual conduct which involves minors. It is therefore the intent of the legislature to penalize possession ofobscenephotographic representations of sexual conduct which involve minors in order to protect the identity of minors who are victimized by involvement inobscenethe photographic representations, and to protect minors from future involvement inobscenephotographic representations of sexual conduct. Subd. 2. [DEFINITIONS.] For purposes of this section, the following terms have the meanings given them: (a) "Photographic representation" means an original or reproduction of a film, videotape, videodisc, photograph, negative, or slide. (b)"Obscene" means that the work, taken as a whole,appeals to pedophiles or to the prurient interest in sex of theaverage person, which portrays patently offensive sexual conductand which, taken as a whole, does not have serious literary,artistic, political, or scientific value. In order to determinethat a work is obscene, the trier of fact must find: (i) thatthe average person, applying contemporary community standardswould find that the work, taken as a whole, appeals topedophiles or to the prurient interest in sex of the averageperson; and (ii) that the work depicts patently offensive sexualconduct specifically defined by clause (c); and (iii) that thework, taken as a whole, lacks serious literary, artistic,political, or scientific value.(c)"Patently offensiveSexual conduct"includes any ofhas thefollowing depicted sexual conduct if the depiction involvesa minor:(i) An act of sexual intercourse, normal or perverted,actual or simulated, including genital-genital, anal-genital, ororal-genital intercourse, whether between human beings orbetween a human being and an animalmeaning given to it in section 617.246.(ii) Sadomasochistic abuse, meaning flagellation or tortureby or upon a person who is nude or clad in undergarments or in arevealing costume or the condition of being fettered, bound, orotherwise physically restricted on the part of one so clothed.(iii) Masturbation or lewd exhibitions of the genitalsincluding any explicit, close-up representation of a humangenital organ.(iv) Physical contact or simulated physical contact withthe clothed or unclothed pubic areas or buttocks of a human maleor female, or the breasts of the female, whether alone orbetween members of the same or opposite sex or between humansand animals in an act of apparent sexual stimulation orgratification.Subd. 3. [DISSEMINATION PROHIBITED.] A person who disseminatesan obscenea photographic representation of sexual conduct which involves a minor, knowing or with reason to know its content and character and that an actual minor is an actor or photographic subject in it, is guilty of a gross misdemeanor. Subd. 4. [POSSESSION PROHIBITED.] A person who has in possessionan obscenea photographic representation of sexual conduct which involves a minor, knowing or with reason to know its content and character and that an actual minor is an actor or photographic subject in it, is guilty of a gross misdemeanor. Subd. 5. [EXCEPTION.] This section does not apply tolawenforcement officers, court personnel, licensed physicians andpsychologists, and attorneys in the performance of theirofficial dutiesthe performance of official duties by peace officers, court personnel, or attorneys, nor to licensed physicians, psychologists, or social workers or persons acting at the direction of a licensed physician, psychologist, or social worker in the course of a bona fide treatment or professional education program. Subd. 6. [CONSENT.] Consent to sexual performance by a minor or his parent, guardian, or custodian is not a defense to a charge of violation of this section. Subd. 7. [SECOND OFFENSE.] If a person is convicted of a second or subsequent violation of this section within 15 years of the prior conviction, the court shall order a mental examination of the person. The examiner shall report to the court whether treatment of the person is necessary. Sec. 13. Minnesota Statutes 1982, section 617.298, is amended to read: 617.298 [OBSCENE MOTION PICTURES AT DRIVE-IN THEATRES; DEFINITIONS.] Subdivision 1. [DEFINITIONS.] For the purposes of this section and section 617.299, the terms defined in this section have the meanings given them. Subd. 2. [OBSCENE.]A motion picture is"Obscene"if:(a) Considered as a whole, by an average person applyingcontemporary community standards, it is found to appealpredominantly to the prurient interest, that is, a shameful ormorbid interest in nudity, sex or excretion; and(b) Taken as a whole, it lacks serious literary, artistic,political, or scientific value; and(c) It depicts or describes in a patently offensive waysexual conduct.For the purpose of this subdivision, "community" means thepolitical subdivision from which persons properly qualified toserve as jurors in a civil proceeding are chosenhas the meaning given to it in section 617.241. Subd. 3. [NUDITY.] "Nudity" means the showing of the human male or female genitals, pubic areas, or buttocks with less than a fully opaque covering, or the showing of an uncovered, or less than opaquely covered, female breast below a point immediately above the top of the nipple(, or the breast with the nipple and immediately adjacent area only covered).Subd. 4. "Sexual conduct" means any of the followingdepicted sexual conduct:(a) Sadomasochistic abuse, meaning flagellation or tortureby or upon a person who is nude, or clad in undergarments, amask or bizarre costume, or the condition of being bound,fettered, or otherwise physically restrained on the part of onewho is so clothed as an act of sexual stimulation orgratification;(b) Human defecation or urination;(c) The condition of human male or female genitals, or thebreasts of the female when in a state of sexual stimulation, orthe sensual experience of humans in engaging in or witnessingsexual conduct or nudity; or(d) Human masturbation, sexual intercourse or sodomy,actual or simulated, or any touching of the genitals, pubicareas or buttocks of a human being, whether alone or betweenmembers of the same or opposite sex or between humans or animalsin an act of apparent sexual stimulation or gratification.Sec. 14. [REPEALER.] Minnesota Statutes 1982, section 617.298, subdivision 4, is repealed. Sec. 15. [EFFECTIVE DATE.] The provisions of this act are effective the day after final enactment, and apply to crimes committed on or after that date. Approved May 20, 1983
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Revisor of Statutes