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SENATE FLOOR VERSION
April 9, 2024
ENGROSSED HOUSE
BILL NO. 3456 By: Moore, Conley, Bashore,
West (Kevin), Baker, and
Kerbs of the House
and
Howard of the Senate
An Act relating to crimes and punishments; amending
21 O.S. 2021, Section s 1040.75 and 1040.76, which
relate to the display of materials harmful to minors;
modifying scope of certain definitions; deleting
definitions; providing findings and statement of
legislative intent; and providing an effective date .
BE IT ENACTED BY THE PEOPL E OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 21 O.S. 2021, Section 1040.75, is
amended to read as follows:
Section 1040.75 As used in Sections 1040.75 through 1040.77 of
this title:
1. "Minor" means any unmarried person under the age of eighteen
(18) years;
2. "Harmful to minors" means:
a. that quality of any description, exhibition,
presentation or representation, in whatever form, of
nudity, sexual conduct, sexual excitement, or
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sadomasochistic abuse when the material or
performance, taken as a whole, has the following
characteristics:
(1) the average person eighteen (18) years of age or
older applying contemporary community standards
would find that the material or performance has a
predominant tendency to appeal to a pru rient
interest in sex to minors, and
(2) the average person eighteen (18) years of age or
older applying contemporary community standards
would find that the material or performance
depicts or describes nudity, sexual conduct ,
sexual excitement or sadomaso chistic abuse in a
manner that is patently offensive to prevailing
standards in the adult community with respect to
what is suitable for minors, and
(3) the material or performance lacks serious
literary, scientific, medical, artistic, or
political value for minors, or
b. any description, exhibition, presentation or
representation, in whatever form, of inappropriate
violence;
3. "Inappropriate violence " means any description or
representation, in an interactive video game or computer software,
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of violence which, taken as a whole, has the following
characteristics:
a. the average person eighteen (18) years of age or older
applying contemporary community standards would find
that the interactive video game or computer software
is patently offensive to prevail ing standards in the
adult community with respect to what is suitable for
minors, and
b. the interactive video game or computer software lacks
serious literary, scientific, medical, artistic, or
political value for minors bas ed on, but not limited
to, the following criteria:
(1) is glamorized or gratuitous,
(2) is graphic violence used to shock or stimulate,
(3) is graphic violence that is not contextually
relevant to the material,
(4) is so pervasive that it serves as the thread
holding the plot of the mat erial together,
(5) trivializes the serious nature of realistic
violence,
(6) does not demonstrate the consequences or effects
of realistic violence,
(7) uses brutal weapons designed to inflict the
maximum amount of pain and damage,
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(8) endorses or glorifies torture or excessive
weaponry, or
(9) depicts lead characters who resort to violence
freely;
4. "Nudity" means the:
a. showing of the human male or female genitals, pubic
area, or buttocks with less than a full opaque
covering,
b. showing of the female breast with less than a full
opaque covering of any portion of the female breast
below the top of the nipple, or
c. depiction of covered male genitals in a discernibly
turgid state;
5. "Sexual conduct" means acts of masturbation, homosexuality,
sexual intercourse, or physical contact with a person 's clothed or
unclothed genitals, pubic area, buttocks, or, if such person be a
female, breast, or fellatio, cunnilingus, anal intercourse, or any
other intrusion, however slight, of any part of a person 's body or
of any object into the genital or anal openings of another person 's
body, or depictions or descriptions of sexual bestiality,
sadomasochism, masturbation, or excretory functions ;
6. "Sexual excitement" means the condition of human male or
female genitals when in a state of sexual stimulation or arousal;
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7. "Sadomasochistic abuse " means flagellation or torture by or
upon a person clothed or naked or the condition of being fettered,
bound or otherwise physically restrained on the part of one so
clothed or naked;
8. "Material" means anything tangible that is capable of being
used or adapted to arouse prurient interest, whether through the
medium of reading, observation, sound, or in any other manner
including, but not limited to, anything printed or writte n, any
book, magazine, newspaper, pamphlet, poster, print, picture, figure,
image, description, drawing, pictorial representation, motion
picture film, record, recording tape, CD -ROM disk, Magnetic Disk
Memory, Magnetic Tape Memory , photograph, video tape, computer
software or video disk, film, transparency, slide, audiotape, audio
disk, computer tape, video game, or any other medium used to
electronically produce or reproduce images on a screen, or any
mechanical, chemical, o r electronic reproduction. Mat erial includes
undeveloped photographs, molds, printing plates, and other latent
representational objects whether or not processing or other acts are
required to make the content of the material apparent ;
9. "CD-ROM" means a compact disk with read only me mory which
has the capacity to store audio, video and written materials and may
be used by computer to play or display materials harmful to minors;
10. "Magnetic Disk Memory " means a memory system that stores
and retrieves binary data on record -like metal or plastic disks
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coated with a magnetic material, including but not limited to floppy
diskettes;
11. "Magnetic Tape Memory " means a memory system that stores
and retrieves binary data on magnetic recording tape;
12. "Performance" means any motion pictur e, film, video tape,
played record, phonograph or tape, 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;
13. 10. "Knowingly" means having general knowledge of, or
reason to know, or a belief or ground for belief which warrants
further inspection or inquiry of both:
a. the character and content of any material or
performance which is reasonably susceptible of
examination by the defendant, and
b. the age of the minor. However, an honest mistake,
shall constitute an excuse from liability pursuant to
this act if the defendant made a reasonable bona fide
attempt to ascertain the true age of such minor;
14. 11. "Person" means any individual, partnership,
association, corporation, or other legal entity of any kind; and
15. 12. "A reasonable bona fide attempt " means an attempt to
ascertain the true age of the minor by requiring production of a
driver license, marriage license, birth certificate or other
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governmental or educational identification card or paper and not
relying solely on the oral allegations or apparent age of the minor.
SECTION 2. AMENDATORY 21 O.S. 2021, Section 1040.76, is
amended to read as follows:
Section 1040.76 The Legislature finds that protecting minor
children from overtly sexual and violent content is a legitimate
objective that should be actively enforced.
The Legislature further finds that the protection of the right
of the people to engage in the freedo m of speech and expression is a
sacred right in the United States ; however, such performances and
materials may not contain depictions of sexual conduct, nudity, or
inappropriate violence which are harmful to minor children .
Therefore, it is the intent of the Legislature that these
provisions be diligently enforced to protect minor children while
also protecting the free speech rights of the public.
No person, including but not limited to any persons having
custody, control or supervision of any commercial establishment,
shall knowingly:
1. Display material which 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. Provided, however, a person shall be
deemed not to have "displayed" material harmful to minors if the
material is kept behind devices commonly known as "blinder racks" so
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that the lower two-thirds (2/3) of the material is not exposed to
view;
2. Sell, furnish, present, distribute, allow to view, or
otherwise disseminate t o a minor, with or without consideration, any
material which is harmful to minors; or
3. Present to a minor or participate in presenting to a minor,
with or without consideration, any performance which is harmful to a
minor.
SECTION 3. This act shall become effective November 1, 2024.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY
April 9, 2024 - DO PASS