0001| SENATE BILL 127 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| STUART INGLE | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO SEXUALLY ORIENTED MATERIAL HARMFUL TO MINORS; | 0012| INCLUDING COMPUTER COMMUNICATIONS; CREATING CRIMES; PROVIDING | 0013| PENALTIES. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. Section 30-37-1 NMSA 1978 (being Laws 1973, | 0017| Chapter 257, Section 1) is amended to read: | 0018| "30-37-1. DEFINITIONS.--As used in ~~[this act]~~ Chapter | 0019| 30, Article 37 NMSA 1978: | 0020| A. "minor" means any unmarried person who has not | 0021| reached his eighteenth birthday; | 0022| B. "nudity" means the showing of the male or | 0023| female genitals, pubic area or buttocks with less than a full | 0024| opaque covering or the depiction of covered male genitals in a | 0025| discernibly turgid state; | - 1 - 0001| C. "sexual conduct" means acts of masturbation, | 0002| homosexuality, sodomy, sexual intercourse or physical contact | 0003| with a person's clothed or unclothed genitals, pubic area, | 0004| buttocks or, if ~~[such]~~ the person ~~[be]~~ is female, | 0005| breast; | 0006| D. "sexual excitement" means the condition of | 0007| human male or female genitals when in a state of sexual | 0008| stimulation or arousal; | 0009| E. "sado-masochistic abuse" means flagellation or | 0010| torture by or upon a person clad in undergarments, a mask or | 0011| bizarre costume or the condition of being fettered, bound or | 0012| otherwise physically restrained; | 0013| F. "harmful to minors" means that quality of any | 0014| description of representation, in whatever form, of nudity, | 0015| sexual conduct, sexual excitement or sado-masochistic abuse, | 0016| when it: | 0017| (1) predominantly appeals to the prurient, | 0018| shameful or morbid interest of minors; ~~[and]~~ | 0019| (2) is patently offensive to prevailing | 0020| standards in the adult community as a whole with respect to | 0021| what is suitable material for minors; and | 0022| ~~[(3) is utterly without redeeming social~~ | 0023| ~~importance for minors; and]~~ | 0024| (3) considered as a whole, lacks serious | 0025| literacy, artistic, political and scientific value for | - 2 - 0001| minors; | 0002| G. "knowingly" means having general knowledge of, | 0003| or reason to know, or a belief or reasonable ground for belief | 0004| which warrants further inspection or inquiry or both, of: | 0005| (1) the character and content of any material | 0006| described herein, which is reasonably susceptible of | 0007| examination by the defendant; or | 0008| (2) the age of the minor; | 0009| H. "access software" means enabling tools that do | 0010| not create or provide the content of the communication but | 0011| allow a user to do any of the following: | 0012| (1) filter, screen, allow or disallow | 0013| content; | 0014| (2) pick, choose, analyze or digest content; | 0015| or | 0016| (3) transmit, receive, display, forward, | 0017| cache, search, subset, organize, reorganize or translate | 0018| content; and | 0019| I. "lure" means to importune, invite or induce a | 0020| minor to engage in sexual intercourse, deviant sexual | 0021| intercourse or sexual contact or to engage in a sexual | 0022| performance, obscene sexual performance or sexual conduct." | 0023| Section 2. A new section of Chapter 30, Article 37 NMSA | 0024| 1978 is enacted to read: | 0025| "[NEW MATERIAL] DISSEMINATING INDECENT MATERIAL TO A | - 3 - 0001| MINOR BY COMPUTER.-- | 0002| A. It is unlawful for a person to disseminate | 0003| indecent material to a minor by computer when, knowing the | 0004| character and content of the communication that in whole or in | 0005| part depicts actual or simulated nudity, sexual conduct or | 0006| sado-masochistic abuse, and that is harmful to minors, he | 0007| intentionally uses a computer communication system, which | 0008| allows the input, output, examination or transfer of computer | 0009| data or computer programs from one computer to another, to | 0010| initiate or engage in such communication with a minor. | 0011| Disseminating indecent material to a minor by computer is a | 0012| misdemeanor. | 0013| B. It is unlawful to lure a minor by means of a | 0014| computer communication as described in Subsection A of this | 0015| section. Luring a minor is a fourth degree felony. | 0016| C. In a prosecution for disseminating indecent | 0017| material to a minor by computer, it is a defense that the | 0018| defendant has: | 0019| (1) in good faith taken reasonable, effective | 0020| and appropriate actions under the circumstances to restrict or | 0021| prevent access by minors to indecent materials on computer, | 0022| including any method that is feasible with available | 0023| technology; | 0024| (2) restricted access to indecent materials | 0025| by requiring the use of a verified credit card, debit account, | - 4 - 0001| adult access code or adult personal identification number; or | 0002| (3) in good faith established a mechanism | 0003| such as labeling, segregation or other means that enables the | 0004| indecent material to be automatically blocked or screened by | 0005| software or other capability reasonably available to persons | 0006| who wish to effect such blocking or screening and the | 0007| defendant has not otherwise solicited a minor not subject to | 0008| such screening or blocking capabilities to access the indecent | 0009| material or to circumvent the screening or blocking. | 0010| D. In a prosecution for disseminating indecent | 0011| material to a minor by computer, a person shall not be held to | 0012| have violated the provisions of this section solely for | 0013| providing access or connection to or from a facility, system | 0014| or network not under the person's control, including | 0015| transmission, downloading, intermediate storage, access | 0016| software or other related capabilities that are incidental to | 0017| providing access or connection and that do not include the | 0018| creation of the content of the communication. | 0019| E. The limitations provided by Subsection D of | 0020| this section shall not be applicable to a person who is a | 0021| conspirator with an entity actively involved in the creation | 0022| or knowing dissemination of indecent material by computer or | 0023| who knowingly advertises the availability of indecent material | 0024| by computer. The limitations provided by Subsection D of this | 0025| section shall not be applicable to a person who provides | - 5 - 0001| access or connection to a facility, system or network that | 0002| disseminates indecent material by computer that is owned or | 0003| controlled by him. | 0004| F. No employer shall be held liable for the | 0005| actions of an employee or agent unless the employee's or | 0006| agent's conduct is within the scope of his employment or | 0007| agency and the employer, having knowledge of such conduct, | 0008| authorizes or ratifies the conduct or recklessly disregards | 0009| the conduct." | 0010| Section 3. EFFECTIVE DATE.--The effective date of the | 0011| provisions of this act is July 1, 1998. | 0012| |