Bill Description: Senate Bill 1213 would require units of government, organizations, and individuals to take reasonable steps to prevent minors from accessing sexual performances and prohibit the use of government facilities for such performances.

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NOTE: Senate Bill 1213 is related to Senate Bill 1214 and House Bill 265, both introduced in this session. All three bills deal with the same issues.

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?

Senate Bill 1213 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.

This new chapter would say, "Any person or institution that knowingly conducts, performs, or participates in a live, in-person show, exhibition, or performance before an audience in any public place, in any place exposed to public view, or in any place open to the public or to a segment thereof, whether or not an admission fee is charged, 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;
• The average person, applying contemporary community standards, would find that the show, exhibition, or performance, taken as a whole, appeals to the prurient interest;
• The show, exhibition, or performance depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
• The show, exhibition, or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value."

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

The bill defines "sexual conduct" as "acts, whether actual or simulated, of masturbation, sexual intercourse, or physical contact with a person's unclothed genitals or pubic area."

Three affirmative defenses are created under this section. The first is that "the defendant had reasonable cause to believe that the minor involved was eighteen (18) years of age or older, or such minor exhibited to the defendant a draft card, driver's license, birth certificate, or other official or apparently official document purporting to establish that the minor was eighteen (18) years of age or older."

The second affirmative defense is that "the minor was accompanied by the minor's parent or legal guardian, or another adult who is temporarily accompanying and supervising the minor, when a ticket is required to enter the show, exhibition, or performance, whether or not a fee is charged."

The third affirmative defense is that "the presenting venue or presenting organization provided the following notice, or a notice substantially similar, prominently displayed at the place of entrance within public view that states the following: 'This performance of [title of performance or performer] contains sexually provocative material that may not be suitable for minors. Parents should use discretion regarding the attendance of a minor.'"

Violations would not be criminalized but this bill would allow "the attorney general, acting in the public interest," to "bring an action in the name of the state against the person or institution:

• To enjoin any action that constitutes a violation of section 6-3601, Idaho Code, by issuance of a temporary restraining order or preliminary or permanent injunction;
• To recover from the alleged violator a civil penalty not to exceed two thousand five hundred dollars ($2,500) per violation, and not to exceed a total of ten thousand dollars ($10,000) in aggregate, as determined by the court; and
• To obtain other appropriate relief."

Given the broad exceptions, narrow definition of "sexual conduct" and numerous affirmative defenses including the mere provision of notice, it is extremely unlikely that this new chapter of Idaho Code would accomplish anything to protect minors from being exposed to sexualized material. 

Notably, House Bill 265 included a clearer definition of "sexual conduct" and used a simpler three-part standard for when a show must prohibit access to minors. It also did not include the open-ended and subjective exception for "serious literary, artistic, political, or scientific value."

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Senate Bill 1213 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 a sexual exhibition as described in section 6-3601(1), Idaho Code."

This provision is considerably weaker than what is found in House Bill 265. Senate Bill 1213 contains no prohibition on spending public funds for sexual exhibitions nor does it impose any penalty for the misuse of a public facility or public equipment in violation of this section. House Bill 265 did both.

These deficiencies coupled with the permissive definition of "sexual exhibition" found in section 6-3601(1), Idaho Code, renders this portion of the bill ineffective, much like the rest of the bill. 

A local jurisdiction that wished to provide facilities or equipment for the exhibition of a sexualized or perverted show could simply claim the material had some "literary, artistic, political, or scientific value" and this law would provide no means of countering that excuse. 

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