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House Bill 265 — Sexual exhibitions, minors, public

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House Bill 265 — Sexual exhibitions, minors, public

by
Parrish Miller
March 3, 2023

Bill Description: House Bill 265 would require reasonable efforts to prevent minors from accessing sexual performances and prohibit the use of government facilities or funds for such performances. 

Rating: +1

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

House Bill 265 would create Chapter 36, Title 6, Idaho Code, to address the issue of minor children being exposed to live sexual performances. While there are already laws in place that touch upon this topic, recent events have raised questions about the effectiveness of existing laws in addressing this issue. 

This new chapter would say, "Any person or institution that knowingly promotes, conducts, performs, or participates in a show, exhibition, or performance by a live person before an audience must take reasonable steps to restrict the access of minors if:

  • The person or institution has reason to believe that minors are likely to be present;
  • The show, exhibition, or performance involves live persons engaged in sexual conduct; and
  • The show, exhibition, or performance is patently offensive to an average person applying contemporary community standards in the adult community as a whole with respect to what is suitable for minors."

All three parts of this standard must be met to trigger the provisions of this statute. 

The section also provides a three-part definition of sexual conduct:

  • "Acts, whether actual or simulated, of masturbation, sexual intercourse, or physical contact with a person's unclothed genitals or pubic area."
  • "Sexually explicit descriptions of acts described" above.
  • "Sexually provocative dances or gestures performed with accessories that exaggerate male or female primary or secondary sexual characteristics."

An action would need to meet only one of these definitions, not all three, in order to qualify as "sexual conduct" under the law.

Violations would not be criminalized but would create a "private cause of action" for any "minor, or a parent or legal guardian of such minor," who is exposed to sexual conduct in violation of the law. 

The minor, or a parent or legal guardian of such minor, who "prevails in an action brought under this section," would be allowed to recover $10,000 in statutory damages for each violation, plus additional "monetary damages from the defendant for all psychological, emotional, economic, and physical harm suffered." The plaintiffs could also recover "reasonable attorney's fees and costs." 

This new section further stipulates, "It shall be an affirmative defense to an action brought under the provisions of this section that the defendant had reasonable cause to believe that the minor involved was eighteen (18) years of age or older," such as if a minor provided a fake ID. 

Taken together, this portion of the bill seems to balance the rights of promoters and performers while still protecting the right of minor children not to be exposed to sexually offensive material.

(+1)

Problematically, however, a subsection of the law would say, "It is not a defense to an action brought under this section that the minor was accompanied by the minor's parent or legal guardian."

While it is reasonable to argue that minors should be protected from sexually explicit content and conduct, legal deference must always be made to parental rights. When parents accompany their children and affirmatively consent to allow their children to view sexually offensive material, the government should not overrule the parents' decisions. 

(-1)

House Bill 265 would create Section 67-2359, Idaho Code, to say, "No public institution, public facility, public equipment, or other physical asset owned, leased, or controlled by this state, a county, a city, a public health district, or any local political subdivision or agency thereof shall be used for the purpose of shows, exhibitions, or performances that involve live persons engaged in sexual conduct. …"

It would additionally say, "No public institution or facility shall lease, sell, or permit the subleasing of its facilities or property for the purpose of shows, exhibitions, or performances that involve live persons engaged in sexual conduct. …"

Furthermore, "No public funds made available by the state, a county, a city, a public health district, or any local political subdivision or agency thereof and distributed by any institution, board, commission, department, agency, official, or employee of the state, a county, a city, a public health district, or any local political subdivision or agency thereof shall be used in any way to provide or assist in the provision of shows, exhibitions, or performances that involve live persons engaged in sexual conduct. …"

A "knowing violation" of these restrictions "by a public officer or public employee" would be deemed "misuse of public moneys," which is an existing crime in Idaho law. 

It is reasonable (and financially responsible) for government not to use public facilities or funds to promote or support sexually offensive material. 

(+1)

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