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HomeMy WebLinkAbout1985-03-12; City Council; 8087; Request to Support SB 136 and SB 139-' ,,.... CIT\• JF CARLSBAD -AGENDJ, llLL (jJ MTG. 3/12/85 DEPT. CM REQUEST TO SUPPORT SB 136 AND SB 139 DEPT. HD. __ CITY ATTY __ CITY MGR.~ RECOMMENDED ACTION: Review the attached request for support of SB 136 and SB 139 and if Council deems appropriate, indicate support. ITEM EXPLANATION: The Vista City Council voted to support SB 136 and SB 139 at its February 13, 1985 meeting. Councilwoman McClellan has asked the Carlsbad City Council to support the passage of this legislation. Copies of the proposed legislation arP. attached. EXHIBI'rS: 1. Letter from Councilwoman McClellan, 2/19/85 I City of Vista February 19, 1985 Honorable Mayor and City Council City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 Dear Mayor and Councilmembers: The Vista City Council, at its meeting of February 13, 1985, voted to support passage of two Bills introduced by Senator Deddeh, SB 136 and SB 139. These Bills would change the definition of "obscene" in the State Penal Code, and would also provide for a civil cause of action for injury resulting from pornography. A synopsis of the two Senate Bills, as well as copies of SB 130 and SB 139, are attached. It is vitally important that we get behind this legislation and provide all the support possible to assure passage. I strongly urge that you place this matter on your first possible agenda with a recommen- dation that the Carlsbad City Council support SB 136 and SB 139. I would appreciate your advising me of the date the legislation will be considered, so that I may plan to attend that meeting and speak on the issue. Thank you for your cooperation in having this important matter scheduled. Very truly yours, ,-' ~,d.i(JV $ 71/~~A(µ GLORIA E. McCLELLAN Vista City Councilwoman GEM:ed Attachments 600 EUCALYPiUS AVENUE • P.O. BOX 1988 ~ V1S7A. CALIFORNIA 92083 • 619/726-1340 City of San Diego 198S Sponsorship Program Civil Cause of Action for Injury Resulting from Pornography (STATE) IRD 184-S4 Proposal: Tite proposed law amends Civil Code Sections 50-54 by declaring it to be the public policy of the State that a person's civil rights include the right to be· free from pornography and its effects. It gh-es a civil cause of acth>n to (a) any person who is sexually exploited through their v~luntary or involuntary participation in sexual activity used in the production of pornography or (b) to any person who suffers injury as a result of the production or distribu- tion of pornography. The victim or injured person or their estate is entitled to collect damages for psychological or physical injury or death, plus a minimum penalty of $50,000 from each person, party or business enterprise responsible for the production or distribution of pornography through which the person became a victim or suffered injury. Source: Councilwoman itcColl Present Law: Under present law a person who is injured by an assailant who was motivated or influenced by pornography has a cause of action ag.iinst the assailant but not against the person responsible for the production or distrihution of the pornography. There is also no c3use of action against the pornographer for a person who voluntarily pnrticip3tes in sexual activity used in the production of pornogrnphy and suffers injury as a result. Discussion: 111ere is increasing evidence that production and disseminntion of pornography is not victimless but that at best it promotes contempt for women and in some cases leads persons to commit crimes of sexual 3ggression. Providing the victims of pornography with a cause of action against the pornographer and those responsible for its distribu- tion is based on the pi:inciple of holding people responsible for the forcscenble consequences of their actions. Recen~ examples of the application of this principle in another area are the cases holding n b.ir liable to third parties for injurie~ caused by a drunk driver who had been se1·vcd alcohol by the bar. The proponents of this leg is l.ition point out that por11ography is not a constitutionally protected ai:ti vi ty and should not be tolerated in an orderly society. . . . . . . Because pomcigr3phy is a highly lucrative business, the penalty must bo large to have any real impact. The large penalty also serves as an incentive for plaintiffs to overcome their often strong feelings of shame and embarrassment tha~ they have been victimized sexually. Issue: Should pornographers be held liable to persons victjmized or injured by pornogrRphy? S~t/ml .3 SENATE BILL No. 136 Introduced by Senator Deddeh (Principal coauthor: Assembly Member Killea) January 9, 1985 An act to add Section 51.6 to the Civil Code, relating to personal rights. LEGISLATIVE COUNSEL'S DICFSI' SB 136, as introduced, Deddeh. Personal rights: pornography. Existing law delineates certain personal rights, the violation of any one of which gives rise to a cause of action against the person violating that right. lmsting law also provides criminal sanctions against the production, sale, distribution, and exhibition of obscene matter. This bill would provide that whoever exploits or injures, or causes the injury of, another person by the production, distribution, or dissemination of pornography, as defined, is liable to the victim of sexual exploitation, to the person who suffers injury, as defined, or to his or her estate, for the actual damages suffered by that person and $50,000, in addition thereto, and attorney's fees. A person who voluntarily and for consideration participated in the sexual acts depicted in the pornography would be a "victim of sexual exploitation" for the purposes of the bill. Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. The people of the State of California do enact as follows: 1 SECTION 1. Section 51.6 is added to the Civil Code, 2 to read: 3 51.6. (a) The Legislature finds that it is the public 4 policy of. this state that a person has the civil right to be S9 60 ___. l 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 Z1 28 29 30 31 32 33 · 34 35 36 37 38 39 40 free &om pornography and its effecb, and that it is a violation of a person's civil rights to be sexually exploited or injured as a result of the production, distribution, or dissemination of pornography within this state. Further, the Legislature declares it to be against public policy for any person to consent to participation in sexual activity which is used in the production of pornography. (b) As used in Uris section: (1) .. Pornography" means "obscene matter" as defined in Section 311 of the Penal Code. (2) .. Victim of sexual exploitation" means any person who participates in sexual activity depicted in pornography, whether or not that participation was voluntary or involuntary or for consideration. (3) .. Person who suffers injury" means any person who is injured as a result of sexual violenr,e by an assailant who was motivated or influenced, in whole or in part, by pornography. · ( 4) "Injury" includes psychological and physical harm, and death. ( c) Whoever exploits or injures, or causes the injury of, another person by the production, distribution, or dissemination of pornography is liable to a victim of sexual exploitation, to any person who suffers injury thereby, or to the estate of any such person, for each and every such exploitation or injury for the 11ctual damages suffered by that person and fifty thousand dollars ($50,000) in addition thereto, and whatever attorney's fees as may be determined by the court. · ( d) None of the following circumstances shall be a defense to an action brought pursuant to this section: ( 1) The production of the pornography or the participation of the victim occurred outside of this state, if the pornography was distributed or disseminated within the state. (2) The effects of the pornography were cumulative with other factors causing injury, if it is established that a person who suffers injury was injured as a result of sexual violence within this state perpetrated by an assailant who was motivated or influenced, in whole or in 99 80 , ·' .. -·- -3-SB 136 1 part, by pornography that was produced, distributed, or 2 otherwise disseminated within this state. 3 (3) The victim of sexual exploitation voluntarily 4 participated in the sexual activity or otherwis-:, consented 5 to the production, distribution, or dissemination of the 6 pornography that is the subject matter of the litigation. 7 ( e) The remedies created by this section are in 8 addition to any other remedy authorized by law. Liability 9 pursuant to this section for attorney's fees and actual 10 damages are both joint and several, and liability for 11 punitive damages are several as against each person 12 liable therefor. 0 99 •,o J -... , - City of San Diego 1985 Sponsorship Progr1111 Amending Penal Code Definition of Obscene (STATE) Source: Councilwoman McColl rrcscnt Lnw: It is a misdemeanor to possess, publish, distribute or exhibit obscene matter. The current st~tutory definition of ob111cem, matter requires three elements (•·1·1t must be established th:it (a) the dominant theme of the material taken as a whole oppa~l"Sft"~tKeffl:Mtiwllintlti'-' in sex; (b) the material is 'f'lRC'nRy,fotfeiiJi~because it-affronts contemporary community stnndnrds relating to thc~~p;-i~J.,~M~~iPIL9f scxunl matter~; and (c) tni"'materia1'ffr.titter1ylfwfthou~- 4Ji.lmltnJDJ)ffll'fifflif.~ Discussion:· It 'is so difficult for the prosecution to prove. that. nllcgcd obscene material is "utterly without redeeming social importnnce" that few cases ~!;!~essfully ~rought~ Th.e U.S. Supreme Court held in'riITie°i·•_y:-Caif~ that the Constitution docs not require such a restrictive definition, and that it is sufficient if the prosecution proves that the~m~~et.fill:'ti~in~ $'ho11'iacks serious literary, artistic, political or scientific vnluc. ~ q if. """-·-:'i''-t:'i!"'-A•rA1flo,~r.ti1 ... , ... w~ nrcmsupreme-{;ourtf••s':·st·and·ard fs-:ieasier· for-".tb'e prosecution. to meet. It is more a matter of co~mon sense than the present "utterly without" test and does not require, the expert witHesses needed currently. • ~ould the State definitio~ of obscene matter ~e changed to ~e-·it easier for prosecutors to pr.ove the necessary elements of the offense? , SM/ml ... IRD '84-53 0 - ,- SENA'!'E RB.I. Introclueed by Senator Decldeh (Principal coauthor: Assembly Member Killea) (Coauthom Senaton Beqeson and Ell&) (Coauthors: Assembly Members Bradley, Chacon, Frazee, Mojonnier, Peace, and Stirling) January 9, 1985 An act to amend Sections 311, 312.1, and 313 of the Penal Code, relating to obscene and harmful matter. LECISLATIVE COUNSEL'S DIGESr SB 139, as introduced, Deddeh. Pornography: deflnit!ons. Existing law defines obscene matter, harmful matter, and obscene live conduct for purposes of prohibiting various acts relating to such matter and conduct. Obscene matter is defined as matter, talcen·as a whole, the predominant appeal of· which, to the average person, applying contemporar.-y standards, is to prurient interests, and is matter which, taken as a whole, goes substantially beyond customary limits of candor in description or representation of such matter, and is matter which, taken as a whole, is utterly without redeeming social .importance. Harmful matter is similarly defined with reference to minors and obscene live conduct is similarly defined with reference to live conduct. This bill would impose a state-mandated local program by changing this definition of obscene matter to, among other things, replace the requirement that obscene matter, taken as a whole, be utterly without redee~g social importance, with a requirement that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value. Harmful matter would be similarly defined with reference to minors and obscene live conduct would be similarly defined with reference to live conduct. S9 40 -s-.. - Article xm B of the CaW'omia Constitution and Sections ,., 2231 and BM of the Revenue and Taxation Code require the state to reimburse local agencies and school distiicts for certain com.mandated by the state. Other provisions require· the Department of Finance to review statutes disclaiming these costs and provide, in certain cues, for making claims to the State Board of Control for reimbursement. However, this bill would provide that no appropriation is made and no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. Tb.e people of the State of Caldomia do enact as follows: ., -~ 1 SECTION 1.· 'Section 311 of the Penal Code is 2 amended to re .... d: 3 311. AJ wed in this chaP,ter: , : (a) •~0.,,!9~:~~-- 6 ~~-~~1' the pretlominaa~ appeal ef 7 wMeJl ie ~11, appl,img eeatempe•HY 8 1M11well9, it ipeu~to p , ~l!bl~~• 1h1111ehll 9 e11 ma.hid. interest ia 1111eli-,,, 1et1r • e•e~tien: ena i, 10 metter whieh telteB • • whele l"9 Nl,1M11tially heyead 11 e1111to111ary liMit9 eE eed.er ill eleeeriplien • · 12 repre9t!nletien eifiN!h matteNt llNiis matter whieh telteft 13 • • wh&le ia uUerly witlte11t ,etleelllills Neielimt,_ortenee · 14 and-:Js"ffiaterialr.tliitrcJepictr.or.rd~li.11"""'1"JiJ'ffip1-,enri, · 13 ofl'ensiV~W8Y;"'BxpJicit:r~xfl~naifCt"?w~~ 16 ~e/in«ltrnature;,r:';'l,tr,~t:'!!'f'fthffl"ictuil o · riliiiwa~ 17 representations or descriptions of ultimate sexual acts 18 whether normal or perverted, such as coitus, fellatio, 19 cunnilingus, analingus, pederasty, coprophagy, bestiality, 20 and the like, or of m~turbation, excretory functions, and· ·21 lewd genital exhib.ition; and that the material, taken as a · 22 whole, lacks serious literar>~ artistic, political, or scientific 23 value. . 24 ( 1) The \,redemifta:nt appeal to'Pniriertr-iiite~t of the 25 matter is judged with reference to average adults unless W i'O -· ..... -3- () 1 it appears from the nature oE the matter or the s-~ • · • i circumstances of its dfaeernfnation, • distribution or / 3 exhibition. that it Is deagned for clearly deftned deviant. . . 4 sexu.11 groups, in which case the p,eliemiMB• appeal.pf 5 the matter shall be judged with reference to its intended 6 recipient l!OUJ?. ,.. 7 . (2) fln"Wpioiic\Itfobl~er this chapter, where 8 circumstances of ~Y.9!!9.1,15~tion, H, 9 cJis f H, ,:U.....ilfuH, moi t ilia 10 mafffrfj'i;f~ ~~= ~ · -~:d~tiii' .... 11 fi -the~lr~of turieilt!at~•-t· · ,.,.. · ·· 12 9~ba~W7~th~tt-t.~Tii '· ,~· 13 ~aibt.ib'i~clUll~{.ttilfflli• mittet ·i. -ttlterlf ~: ~ibt:;=;-':'~~-:fi....,-2lt 16 (W~deteniwilitg -whether the matter ~'Ileen as a 17 whole seee 11:1h11telielly heye11tl NINIHl'f ~ ef 18 eaneler ill deseriptiea er rep,eee11•1iea ef 9llelt matte" is : fh~~:~»:'p·'i!t.~pe-1a=.=~=:~i-~ . 21 en ·eJ;• ... •,~~nduc·-"!'~--__ ,.,:~~Viti-to{~ ob 22 o"-~tn!,?m~iiu1ma~.:.~f1cir--·, ... ~ ,~~~t1aiij~~---'~--=--23 ll!!~i::.~~--:.. a It i~~o~ pn 24 (o, .. Matter" nieans any boolc, magazine, newspaper .... 25 or other printed or written material or any picture, 26 drawing, photograph, motion picture~ or other pictorial 2:/ representation or any statue or other figure, or any 28 recording, transcription or mechanical, chemical or 29 electrical reproduction or any other articles, equipment, 30 machines or materials. " 31 (c) '"Person° meaus any individual, partnership, firm, 32 association, corporation, or other legal entity. 33 (d) .. D~tribute" means to traru:er possession of, thl 34 whether with or without consideration. 35 (e) '"Knowingly" means being a}Vare of the character 36 of the matter or live conduct. ' 37 (f) '"Exhibit"' means to show. 38 (g) "Obscene live conduct" means any physical 39 human body ,~tivity, whether performed or f.'ngaged in ret 40 alone or with other persons, including but not limited to 99 1111 f. r . ,.. ... SB131 l singinr, .. spet1kit1& dancing, actlQ& simulatin,, or S pantomirning, tbat the avenge par,on, applyiDg 3 coatemponry community ,tedmb, would Rnd where, 4 taken u a whole, the ,,ellemiMftl appeal ef Neh 5 eend1te• te the l'lerege pene11; ap~ eontempe,..,. 6 11•.-it appem to prurient interest, t,e,, • ,hweM 7 w merltitl itltereN ift 11118'1)', Nflr • eNeretien, w ie 8 eend11el! wMeh takett •• whole leed ltlhttr•tially he)'oM 9 ewtemary limitl ef eander ilt et,;eriptien • 10 repreaentation eE llleh JMlte,,, wit eendt.~t ~ 11 NNft • • whole it 11tteflr ·Nitheul! ,etleemiftL 9NW 12 imporMnee and u conduct that depica or descri s ,1n a 13 patently offensive way, explicit sexual conduct of ~ 14 speci.ically.delined natuM, to wit: the actual or simulateq 15 representati.ons or descriptions of ultimate sexual act{ 16 whether normal or perverted, such u coitus, fellati°i 17 cunnilingus, analingu,, pederuty, coprophagy, bestiality_ 18 and the like, 'Jr of ma.r'urbatioa, excretory functions, an< 19 lewd 1;enital.exhibitionl and that the conduct, taken ar, 20 whole, lacks serious literary, artistic, political, or scientili1 21. value. 22 (1) n~e p,edelftiftant_appeal to.prurient interest of th, 23 conduct is judged with reference to average adults unles 24 . it appears from the nature of the conduct or th, 25 circwnstances of its production, presentation o 26 exhibition, that it is designed for clearly defined devian 27 sexual groups, in which case the p,etieMinent appeal Q 28 the conduct shall be judied with reference to it 29 intended rccipie:t1t group,, 30 (2) In proser.utions under this chapter, wheri 31 circwnstances of production, presentation advertising, Q 3t exhibition indicate that live conduct is bein 33 commercially exploited by the defendant for the :,ake ~ 34 its prt.!rl,mt appeal, 9ttelt that evidence is probative wit 35 respect to the nature of the conduct and can justify th 36 C{lnclusion that the conduct i9 ttUerl,a wUhettt reeet·mifl 37 seeial ifflpertanee Jacks sen'ous literary, artistic, politic~ 36 or scientific value. 39 (3) In determining whether the live conduct tuken I 40 a whole See! 9tt99~antiall)1 M)1ena e"1-0fflltP~' ~ ' "" I I/ - 1 eeetler-ia tleeel'ipli111 • teffONHtlion tf Neh ll!IMk>N /4 I JMtently o/FemivtJ, the fact that the defendant knew that 3 the live conduct depicts penom under the age of 16 years 4 engaged in sexual conduct, as defined in subdivision ( c) 5 of Section 311.4, is a factor which can be considered in 6 making Neh • that determination. 7 · SEC. 2. Section 312.1 of the Penal Code is amended to 8 read: , 9 312.1. In any prosecution for a violatioµ of the 10 provisions of this chapter or of Chapter 7.6 ( commencing 11 with Section 313), ~eltliif.!I~~ , o!'lrt!t'l f~ ~~Ct?:f::-~!~9t~t°,t~UC!1;; ~~fe~~ 14 of,tJl m!~te~=~~;;;d~~lii~bjeetmf~ 15 ~e:orosemtiofl. Any evidence ··which tends to 16 esbiblli~iifip'.eilary community standards of appeal 17 to prurient interest etef emtemuy Hmitt ef eantler in the 18 description or representation of nudity, sex or excretion, 19 or which bears upon the question of redeeming seet&l 20 ilnperteee, serious liter~ry, artistic, political, or scientific 21 t,•aJue, shall, subject to the provisions of the Evidence 22 Code, be admissible when offered by either the 23 prosecution or by the defense. 24 SEC. 3. Section 313 of the Penal Code is amended to 25 read: 26 313. As used in this chapter: 27 (a) lfLl~iinntuJ.Tinatte~' means matter that the average 28 person, applying contemporary community standards, 29 would find, taken as a whole, lhe pretlemiftant 1ppe,I ei 30 whieh ~ ~ ar,.e,age penen, appl,-mg ::entemperary 31 stanela,ae, i9 appeals to prurient interest MT; • M181ftett1l 32 er 111e,hia interest ift 11ttdity, sett; • e,eerel!ien, ane i9 33 patent½' effen9iye te tMJ p,e,,.ailing staneHm in~~ 34 ee1n111ttnity M a whele 'ffflh respeet M wltH it sttitttble 35 material fer miners, antl i9 11tterly 'Ni~he11t reaeemiftg 36 9eeill ifflpertanee fer mineH, and is material that depicts 37 · or describes in a "''a.V that is patently offensive to the adult 38 community, explicit sexual conduct of a specifically 39 defined nature, to wit: the actual or simulated 40 representations or descriptions of ultimate sexual acts .. --:--· -•-. 1 ~ nOl'llW" or pe1verted,· mcll" • coitu,, leiu.tio, I cumulJngu.t, am/in,m, pederuty, copropb,,ay, beltWity, 3 md the Ulce, or ol awtur1-tioa, excretory liuJctiolJI» and 4 lewd gttnital exhibition; and that the material, taken 111 • 5 whole, lacks serious literary, artutic, political, or scientillc 6 value for m.inon. 7 ( 1) When it appears &om the nature of the matter or 8 the circumstances of its dissemination, distribution or 9 exhibition that it is designed for clearly defined deviant 10 sexual groups, the preeo!ftiMM appeal of the matter shall 11 be judged with reference to its in~tided recipient group. 12 (2) In pro!ecutions under this chapter, where 13 circumstances of production, presentation, sale, 14 dissemination, distribution, or publicity indicate that 15 matter is being commercially exploited by the defendant 16 for the sake of its prurient appeal, 9lleh that evidence u 11 pr.obative with respect to the nature of the matter antj 18 can justify the conclusion that the matter ie tH~en, 19 wilhe\11 ,eeeemiftg !eeiei impel'l:eee Jacks serio~ 20 literary, artis,tic, political, or scientific value for minors 21 (b) .. Matter0 means any book, magazine, newspapet 22 or other printed or written material or any picture 23 drawing, photograph, motion picture, or other pictoria 24 repres,entation or any statue or other figure, or an! 25 recording, t,anscription, or mechanical, chemical, o 26 elecbical reproduction or any other articles, equipmen\ 'Zt machines, or materials. 28 ( c) "Person" means any individual, partnership, fll'll/ 29 asso!iation, corpc,ration, or other legal entity. 30 ('1) "Distribute" means to transfer possession oj 31 wh,!ther with or without consideration. ·. 32 ( e) "Knowingly" means being aware of the characte 33 of 'the matter. 34 ,;f) "Exhibit" means to show. 35 {g) "Minor" means any natural person under 18 yea1 36 of age.I · 37 SEC. 4. No appropriation is made and 11 38 reimbursement is required by this act pursuant to Secti<i 39 6 of Article XIII B of the California Constitution c 40 Se:ition 2231 or 2234 of the Revenue and Taxation Co~ -1-SB 139 1 because the only costs which may be incurred by a local 2 agency er school disbict will be incurred because this act 3 creates a new crime or infraction, changes the definition 4 of a crime or infraction, changes the penalty for a crime ~ S or infraction, or eliminates a crime or infraction. 0 ,. 99 r:o