Minnesota Session Laws - 1983, Regular Session

  

                         Laws of Minnesota 1983 

                        CHAPTER 204--H.F.No. 114
           An act relating to crimes; prohibiting promotion of 
          minors to engage in sexual performance; defining terms;
          prohibiting dissemination and possession of works 
          depicting minors in sexual performance; providing 
          penalties; amending Minnesota Statutes 1982, sections 
          609.342; 609.343; 609.344; 609.345; 609.3641, 
          subdivision 2; 609.3642, subdivision 2; 609.3643, 
          subdivision 2; 609.3644, subdivision 2; 617.241; 
          617.243; 617.246; 617.247; and 617.298; repealing 
          Minnesota Statutes 1982, section 617.298, subdivision 
          4. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1982, section 609.342, is 
amended to read: 
    609.342 [CRIMINAL SEXUAL CONDUCT IN THE FIRST DEGREE.] 
    A person is guilty of criminal sexual conduct in the first 
degree and may be sentenced to imprisonment for not more than 20 
years or to payment of a fine of not more than $20,000, or both, 
if he engages in sexual penetration with another person and if 
any of the following circumstances exists: 
    (a) The complainant is under 13 years of age and the actor 
is more than 36 months older than the complainant.  Neither 
mistake as to the complainant's age nor consent to the act by 
the complainant is a defense; or 
    (b) The complainant is at least 13 but less than 16 years 
of age and the actor is more than 48 months older than the 
complainant and in a position of authority over the complainant, 
and uses this authority to cause the complainant to submit.  
Neither mistake as to the complainant's age nor consent to the 
act by the complainant is a defense; or 
    (c) Circumstances existing at the time of the act cause the 
complainant to have a reasonable fear of imminent great bodily 
harm to the complainant or another; or 
    (d) The actor is armed with a dangerous weapon or any 
article used or fashioned in a manner to lead the complainant to 
reasonably believe it to be a dangerous weapon and uses or 
threatens to use the weapon or article to cause the complainant 
to submit; or 
     (e) The actor causes personal injury to the complainant, 
and either of the following circumstances exist: 
     (i) The actor uses force or coercion to accomplish sexual 
penetration; or 
     (ii) The actor knows or has reason to know that the 
complainant is mentally defective, mentally incapacitated, or 
physically helpless; or 
     (f) The actor is aided or abetted by one or more 
accomplices within the meaning of section 609.05, and either of 
the following circumstances exists: 
     (i) An accomplice uses force or coercion to cause the 
complainant to submit; or 
     (ii) An accomplice is armed with a dangerous weapon or any 
article used or fashioned in a manner to lead the complainant 
reasonably to believe it to be a dangerous weapon and uses or 
threatens to use the weapon or article to cause the complainant 
to submit. 
     Sec. 2.  Minnesota Statutes 1982, section 609.343, is 
amended to read: 
    609.343 [CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE.] 
    A person is guilty of criminal sexual conduct in the second 
degree and may be sentenced to imprisonment for not more than 15 
years or to payment of a fine of not more than $15,000, or both, 
if he engages in sexual contact with another person and if any 
of the following circumstances exists: 
    (a) The complainant is under 13 years of age and the actor 
is more than 36 months older than the complainant.  Neither 
mistake as to the complainant's age nor consent to the act by 
the complainant is a defense.  In a prosecution under this 
clause, the state is not required to prove that the sexual 
contact was coerced; or 
    (b) The complainant is at least 13 but less than 16 years 
of age and the actor is more than 48 months older than the 
complainant and in a position of authority over the complainant, 
and uses this authority to cause the complainant to submit.  
Neither mistake as to the complainant's age nor consent to the 
act by the complainant is a defense; or 
    (c) Circumstances existing at the time of the act cause the 
complainant to have a reasonable fear of imminent great bodily 
harm to the complainant or another; or 
     (d) The actor is armed with a dangerous weapon or any 
article used or fashioned in a manner to lead the complainant to 
reasonably believe it to be a dangerous weapon and uses or 
threatens to use the dangerous weapon to cause the complainant 
to submit; or 
     (e) The actor causes personal injury to the complainant, 
and either of the following circumstances exist: 
     (i) The actor uses force or coercion to accomplish the 
sexual contact; or 
     (ii) The actor knows or has reason to know that the 
complainant is mentally defective, mentally incapacitated, or 
physically helpless; or 
     (f) The actor is aided or abetted by one or more 
accomplices within the meaning of section 609.05, and either of 
the following circumstances exists: 
     (i) An accomplice uses force or coercion to cause the 
complainant to submit; or 
     (ii) An accomplice is armed with a dangerous weapon or any 
article used or fashioned in a manner to lead the complainant to 
reasonably believe it to be a dangerous weapon and uses or 
threatens to use the weapon or article to cause the complainant 
to submit. 
    Sec. 3.  Minnesota Statutes 1982, section 609.344, is 
amended to read: 
    609.344 [CRIMINAL SEXUAL CONDUCT IN THE THIRD DEGREE.] 
    A person is guilty of criminal sexual conduct in the third 
degree and may be sentenced to imprisonment for not more than 
ten years, or to payment of a fine of not more than $10,000, or 
both, if he engages in sexual penetration with another person 
and any of the following circumstances exists:  
    (a) The complainant is under 13 years of age and the actor 
is no more than 36 months older than the complainant.  Neither 
mistake as to the complainant's age nor consent to the act by 
the complainant shall be a defense; or 
    (b) The complainant is at least 13 but less than 16 years 
of age and the actor is more than 24 months older than the 
complainant.  In any such case it shall be an affirmative 
defense, which must be proved by a preponderance of the 
evidence, that the actor believes the complainant to be 16 years 
of age or older.  If the actor in such a case is no more than 48 
months but more than 24 months older than the complainant, he 
may be sentenced to imprisonment for not more than five years.  
Consent by the complainant is not a defense; or 
             (c) The actor uses force or coercion to accomplish the 
penetration; or 
             (d) The actor knows or has reason to know that the 
complainant is mentally defective, mentally incapacitated, or 
physically helpless.  
     Sec. 4.  Minnesota Statutes 1982, section 609.345, is 
amended to read: 
    609.345 [CRIMINAL SEXUAL CONDUCT IN THE FOURTH DEGREE.] 
    A person is guilty of criminal sexual conduct in the fourth 
degree and may be sentenced to imprisonment for not more than 
five years, or to payment of a fine of not more than $5,000, or 
both, if he engages in sexual contact with another person and if 
any of the following circumstances exists: 
    (a) The complainant is under 13 years of age and the actor 
is no more than 36 months older than the complainant.  Neither 
mistake as to the complainant's age or consent to the act by the 
complainant is a defense.  In a prosecution under this clause, 
the state is not required to prove that the sexual contact was 
coerced; or 
    (b) The complainant is at least 13 but less than 16 years 
of age and the actor is more than 48 months older than the 
complainant or in a position of authority over the complainant 
and uses this authority to cause the complainant to submit.  In 
any such case, it shall be an affirmative defense which must be 
proved by a preponderance of the evidence that the actor 
believes the complainant to be 16 years of age or older; or 
    (c) The actor uses force or coercion to accomplish the 
sexual contact; or 
     (d) The actor knows or has reason to know that the 
complainant is mentally defective, mentally incapacitated, or 
physically helpless. 
    Sec. 5.  Minnesota Statutes 1982, section 609.3641, 
subdivision 2, is amended to read: 
    Subd. 2.  [PENALTY.] A person convicted under subdivision 
1, clause (1), may be sentenced to imprisonment for not more 
than 20 years or to payment of a fine of not more than $20,000, 
or both.  Except when imprisonment is required by section 
609.346, the court may stay imposition or execution of sentence 
if it finds that a stay is in the best interest of the 
complainant or the family unit.  A person convicted under 
subdivision 1, clause (2), may be sentenced to imprisonment for 
not more than 20 years or to payment of a fine of not more than 
$20,000, or both.  
    Sec. 6.  Minnesota Statutes 1982, section 609.3642, 
subdivision 2, is amended to read: 
    Subd. 2.  [PENALTY.] A person convicted under subdivision 
1, clause (1), may be sentenced to imprisonment for not more 
than 15 years or to payment of a fine of not more than $15,000, 
or both.  Except when imprisonment is required by section 
609.346, the court may stay imposition or execution of the 
sentence if it finds that a stay is in the best interest of the 
complainant or the family unit.  A person convicted under 
subdivision 1, clause (2), may be sentenced to imprisonment for 
not more than 15 years or to payment of a fine of not more than 
$15,000, or both.  
    Sec. 7.  Minnesota Statutes 1982, section 609.3643, 
subdivision 2, is amended to read: 
    Subd. 2.  [PENALTY.] A person convicted under subdivision 
1, clause (1), may be sentenced to imprisonment for not more 
than ten years or to payment of a fine of not more than $10,000, 
or both.  Except when imprisonment is required by section 
609.346, the court may stay imposition or execution of the 
sentence if it finds that a stay is in the best interest of the 
complainant or the family unit.  A person convicted under 
subdivision 1, clause (2), may be sentenced to imprisonment for 
not more than ten years or to payment of a fine of not more than 
$10,000, or both.  
    Sec. 8.  Minnesota Statutes 1982, section 609.3644, 
subdivision 2, is amended to read: 
    Subd. 2.  [PENALTY.] A person convicted under subdivision 
1, clause (1), may be sentenced to imprisonment for not more 
than five years or to payment of a fine of not more than $5,000, 
or both.  Except when imprisonment is required by section 
609.346, the court may stay imposition or execution of the 
sentence if it finds that a stay is in the best interest of the 
complainant or the family unit.  A person convicted under 
subdivision 1, clause (2), may be sentenced to imprisonment for 
not more than five years or to payment of a fine of not more 
than $5,000, or both.  
    Sec. 9.  Minnesota Statutes 1982, section 617.241, is 
amended to read: 
    617.241 [OBSCENE MATERIALS; DISTRIBUTION PROHIBITED; 
PENALTY.] 
    Subdivision 1.  [DEFINITIONS.] For purposes of this 
section, the following terms have the meanings given them:  
    (a) "Obscene" means that the work, taken as a whole, 
appeals to the prurient interest in sex of the average person, 
which portrays patently offensive sexual conduct and which, 
taken as a whole, does not have serious literary, artistic, 
political, or scientific value.  In order to determine that a 
work is obscene, the trier of fact must find:  
    (i) that the average person, applying contemporary 
community standards would find that the work, taken as a whole, 
appeals to the prurient interest in sex of the average person;  
    (ii) that the work depicts patently offensive sexual 
conduct specifically defined by clause (b); and 
    (iii) that the work, taken as a whole, lacks serious 
literary, artistic, political, or scientific value.  
    (b) "Patently offensive sexual conduct" includes any of the 
following depicted sexual conduct:  
    (i) An act of sexual intercourse, normal or perverted, 
actual or simulated, including genital-genital, anal-genital, or 
oral-genital intercourse, whether between human beings or 
between a human being and an animal.  
    (ii) Sadomasochistic abuse, meaning flagellation or torture 
by or upon a person who is nude or clad in undergarments or in a 
revealing costume or the condition of being fettered, bound, or 
otherwise physically restricted on the part of one so clothed.  
    (iii) Masturbation or lewd exhibitions of the genitals 
including any explicit, close-up representation of a human 
genital organ.  
    (iv) Physical contact or simulated physical contact with 
the clothed or unclothed pubic areas or buttocks of a human male 
or female, or the breasts of the female, whether alone or 
between members of the same or opposite sex or between humans 
and animals in an act of apparent sexual stimulation or 
gratification.  
    (c) "Community" means the political subdivision from which 
persons properly qualified to serve as jurors in a civil 
proceeding are chosen.  
    Subd. 2.  [CRIME.] It is unlawful for any person knowingly 
to exhibit, sell, print, offer to sell, give away, circulate, 
publish, distribute, or attempt to distribute any obscene book, 
magazine, pamphlet, paper, writing, card, advertisement, 
circular, print, picture, photograph, motion picture film, play, 
image, instrument, statue, drawing, or other article which is 
obscene.  "Obscene"  for the purpose of this section, is defined 
as follows:  Whether to the average person, applying 
contemporary community standards, the dominant theme of the 
material taken as a whole appeals to prurient interests.  
    Subd. 3.  [PENALTY.] Any person violating any provision of 
this section shall be fined up to $5,000 for the first offense 
and up to $10,000 for the second or a subsequent offense.  
    Sec. 10.  Minnesota Statutes 1982, section 617.243, is 
amended to read:  
    617.243 [INDECENT LITERATURE, DISTRIBUTION.] 
    Subdivision 1.  [PROHIBITED ACTIVITY.] Any No person, 
copartnership or corporation shall not, as a condition to a sale 
or delivery for resale of any paper, magazine, book, comic, 
periodical or publication, require that the purchaser or 
consignee receive for resale any other article, book, comic or 
other publication reasonably believed by the purchaser or 
consignee to be obscene as defined in section 617.241.  
    Subd. 2.  [PENALTY.] The A violation of the provisions of 
subdivision 1 is a gross misdemeanor.  
    Sec. 11.  Minnesota Statutes 1982, section 617.246, is 
amended to read:  
    617.246 [PROHIBITING PROMOTION USE OF MINORS TO ENGAGE IN 
OBSCENE WORKS SEXUAL PERFORMANCE PROHIBITED.] 
    Subdivision 1.  [DEFINITIONS.] (a) For the purpose of this 
section, the terms defined in this subdivision shall have the 
meanings given them. 
    (b) "Minor" means any person who has not attained his or 
her 18th birthday under the age of 18. 
    (c) "Promote" means to produce, direct, publish, 
manufacture, issue, or advertise. 
    (d) "Sexual performance" means any play, dance or other 
exhibition presented before an audience or for purposes of 
visual or mechanical reproduction which depicts patently 
offensive sexual conduct as defined by clause (f) (e). 
    (e) "An obscene work" is a picture, a film, photograph, 
negative, slide, drawing or similar visual representation 
depicting a minor, which taken as a whole appeals to pedophiles 
or to the prurient interest in sex of the average person, which 
portrays patently offensive sexual conduct and which, taken as a 
whole, does not have serious literary, artistic, political or 
scientific value.  In determining whether or not a work is an 
obscene work the trier of the fact must find:  (i) that the 
average person, applying contemporary community standards would 
find that the work, taken as a whole appeals to pedophiles or to 
the prurient interest in sex of the average person; and (ii) 
that the work depicts patently offensive sexual conduct 
specifically defined by clause (f); and (iii) that the work, 
taken as a whole, lacks serious literary, artistic, political or 
scientific value.  
    (f) "Patently offensive Sexual conduct" includes means any 
of the following depicted sexual conduct if the depiction 
involves a minor: 
    (i) An act of sexual intercourse, normal or perverted, 
actual or simulated, including genital-genital, anal-genital, or 
oral-genital intercourse, whether between human beings or 
between a human being and an animal. 
    (ii) Sadomasochistic abuse, meaning flagellation or, 
torture, or similar demeaning acts inflicted by or upon a person 
who is nude or clad in undergarments or in a revealing costume, 
or the condition of being fettered, bound or otherwise 
physically restrained on the part of one so clothed. 
    (iii) Masturbation or lewd exhibitions of the genitals 
including any explicit, close up representation of a human 
genital organ.  
    (iv) Physical contact or simulated physical contact with 
the clothed or unclothed pubic areas or buttocks of a human male 
or female, or the breasts of the female, whether alone or 
between members of the same or opposite sex or between humans 
and animals in an act of apparent sexual stimulation or 
gratification. 
    (f) "Work" means an original or reproduction of a picture, 
film, photograph, negative, slide, videotape, videodisc, or 
drawing.  
    Subd. 2.  [USE OF MINOR.] It is unlawful for a person to 
promote, employ, use or permit a minor to engage in or assist 
others to engage in posing or modeling alone or with others in 
any sexual performance for purposes of preparing an obscene work 
if the person knows or has reason to know that the conduct 
intended is a sexual performance. 
    A violation of this subdivision is a felony.  Any person 
who violates this subdivision is guilty of a felony and may be 
sentenced to imprisonment for not more than five years or to 
payment of a fine of not more than $5,000 for the first offense 
and $10,000 for a second or subsequent offense, or both.  
    Subd. 3.  [OPERATION OR OWNERSHIP OF BUSINESS.] A person 
who owns or operates a business in which an obscene a work 
depicting a minor in a sexual performance, as defined in this 
section, is disseminated, and who knows the content and 
character of the obscene work disseminated, is guilty of a 
felony and may be sentenced to imprisonment for not more than 
five years, or to payment of a fine of not more than $5,000 for 
the first offense and $10,000 for a second or subsequent 
offense, or both. 
    Subd. 4.  [DISSEMINATION.] A person who, knowing or with 
reason to know its content and character, disseminates for 
profit an obscene a work depicting a minor in sexual 
performance, as defined in this section, is guilty of a felony 
and may be sentenced to imprisonment for not more than five 
years, or to payment of a fine of not more than $5,000 for the 
first offense and $10,000 for a second or subsequent offense, or 
both. 
    Subd. 5.  [CONSENT; MISTAKE.] Neither consent to sexual 
performance by a minor or his parent, guardian, or custodian nor 
mistake as to the minor's age is a defense to a charge of 
violation of this section.  
    Sec. 12.  Minnesota Statutes 1982, section 617.247, is 
amended to read:  
    617.247 [POSSESSION OF OBSCENE PICTORIAL REPRESENTATIONS OF 
MINORS.] 
    Subdivision 1.  [POLICY; PURPOSE.] It is the policy of the 
legislature in enacting this section to protect minors from the 
physical and psychological damage caused by their being used in 
obscene photographic representations of sexual conduct which 
involves minors.  It is therefore the intent of the legislature 
to penalize possession of obscene photographic representations 
of sexual conduct which involve minors in order to protect the 
identity of minors who are victimized by involvement in obscene 
the photographic representations, and to protect minors from 
future involvement in obscene photographic representations of 
sexual conduct.  
    Subd. 2.  [DEFINITIONS.] For purposes of this section, the 
following terms have the meanings given them:  
    (a) "Photographic representation" means an original or 
reproduction of a film, videotape, videodisc, photograph, 
negative, or slide.  
    (b) "Obscene" means that the work, taken as a whole, 
appeals to pedophiles or to the prurient interest in sex of the 
average person, which portrays patently offensive sexual conduct 
and which, taken as a whole, does not have serious literary, 
artistic, political, or scientific value.  In order to determine 
that a work is obscene, the trier of fact must find:  (i) that 
the average person, applying contemporary community standards 
would find that the work, taken as a whole, appeals to 
pedophiles or to the prurient interest in sex of the average 
person; and (ii) that the work depicts patently offensive sexual 
conduct specifically defined by clause (c); and (iii) that the 
work, taken as a whole, lacks serious literary, artistic, 
political, or scientific value.  
    (c) "Patently offensive Sexual conduct" includes any of has 
the following depicted sexual conduct if the depiction involves 
a minor:  
    (i) An act of sexual intercourse, normal or perverted, 
actual or simulated, including genital-genital, anal-genital, or 
oral-genital intercourse, whether between human beings or 
between a human being and an animal meaning given to it in 
section 617.246.  
    (ii) Sadomasochistic abuse, meaning flagellation or torture 
by or upon a person who is nude or clad in undergarments or in a 
revealing costume or the condition of being fettered, bound, or 
otherwise physically restricted on the part of one so clothed.  
    (iii) Masturbation or lewd exhibitions of the genitals 
including any explicit, close-up representation of a human 
genital organ.  
    (iv) Physical contact or simulated physical contact with 
the clothed or unclothed pubic areas or buttocks of a human male 
or female, or the breasts of the female, whether alone or 
between members of the same or opposite sex or between humans 
and animals in an act of apparent sexual stimulation or 
gratification.  
    Subd. 3.  [DISSEMINATION PROHIBITED.] A person who 
disseminates an obscene a photographic representation of sexual 
conduct which involves a minor, knowing or with reason to know 
its content and character and that an actual minor is an actor 
or photographic subject in it, is guilty of a gross misdemeanor. 
    Subd. 4.  [POSSESSION PROHIBITED.] A person who has in 
possession an obscene a photographic representation of sexual 
conduct which involves a minor, knowing or with reason to know 
its content and character and that an actual minor is an actor 
or photographic subject in it, is guilty of a gross misdemeanor. 
    Subd. 5.  [EXCEPTION.] This section does not apply to law 
enforcement officers, court personnel, licensed physicians and 
psychologists, and attorneys in the performance of their 
official duties the performance of official duties by peace 
officers, court personnel, or attorneys, nor to licensed 
physicians, psychologists, or social workers or persons acting 
at the direction of a licensed physician, psychologist, or 
social worker in the course of a bona fide treatment or 
professional education program.  
    Subd. 6.  [CONSENT.] Consent to sexual performance by a 
minor or his parent, guardian, or custodian is not a defense to 
a charge of violation of this section.  
    Subd. 7.  [SECOND OFFENSE.] If a person is convicted of a 
second or subsequent violation of this section within 15 years 
of the prior conviction, the court shall order a mental 
examination of the person.  The examiner shall report to the 
court whether treatment of the person is necessary.  
    Sec. 13.  Minnesota Statutes 1982, section 617.298, is 
amended to read:  
    617.298 [OBSCENE MOTION PICTURES AT DRIVE-IN THEATRES; 
DEFINITIONS.] 
    Subdivision 1.  [DEFINITIONS.] For the purposes of this 
section and section 617.299, the terms defined in this section 
have the meanings given them.  
    Subd. 2.  [OBSCENE.] A motion picture is "Obscene" if:  
    (a) Considered as a whole, by an average person applying 
contemporary community standards, it is found to appeal 
predominantly to the prurient interest, that is, a shameful or 
morbid interest in nudity, sex or excretion; and 
    (b) Taken as a whole, it lacks serious literary, artistic, 
political, or scientific value; and 
    (c) It depicts or describes in a patently offensive way 
sexual conduct.  
    For the purpose of this subdivision, "community" means the 
political subdivision from which persons properly qualified to 
serve as jurors in a civil proceeding are chosen has the meaning 
given to it in section 617.241.  
    Subd. 3.  [NUDITY.] "Nudity" means the showing of the human 
male or female genitals, pubic areas, or buttocks with less than 
a fully opaque covering, or the showing of an uncovered, or less 
than opaquely covered, female breast below a point immediately 
above the top of the nipple (, or the breast with the nipple and 
immediately adjacent area only covered).  
    Subd. 4.  "Sexual conduct" means any of the following 
depicted sexual conduct:  
    (a) Sadomasochistic abuse, meaning flagellation or torture 
by or upon a person who is nude, or clad in undergarments, a 
mask or bizarre costume, or the condition of being bound, 
fettered, or otherwise physically restrained on the part of one 
who is so clothed as an act of sexual stimulation or 
gratification;  
    (b) Human defecation or urination;  
    (c) The condition of human male or female genitals, or the 
breasts of the female when in a state of sexual stimulation, or 
the sensual experience of humans in engaging in or witnessing 
sexual conduct or nudity; or 
    (d) Human masturbation, sexual intercourse or sodomy, 
actual or simulated, or any touching of the genitals, pubic 
areas or buttocks of a human being, whether alone or between 
members of the same or opposite sex or between humans or animals 
in an act of apparent sexual stimulation or gratification.  
    Sec. 14.  [REPEALER.] 
    Minnesota Statutes 1982, section 617.298, subdivision 4, is 
repealed.  
    Sec. 15.  [EFFECTIVE DATE.] 
    The provisions of this act are effective the day after 
final enactment, and apply to crimes committed on or after that 
date. 
    Approved May 20, 1983