HOUSE SUBSTITUTE FOR
HOUSE COMMITTEE SUBSTITUTE FOR
HOUSE BILLS NOS. 1215 & 1240
90TH GENERAL ASSEMBLY
TERRY L. SPIELER, Secretary.
3056S.07C
To repeal sections 149.071, 537.525, 541.033, 542.281, 556.046, 565.090, 565.225, 568.110, 569.070, 569.095, 573.010, 573.025, 573.035 and 573.037, RSMo 1994, and sections 407.020 and 565.253, RSMo Supp. 1999, and to enact in lieu thereof twenty new sections relating to computer crime, with penalty provisions and an effective date for a certain section.
Section A. Sections 149.071, 537.525, 541.033, 542.281, 556.046, 565.090, 565.225, 568.110, 569.070, 569.095, 573.010, 573.025, 573.035 and 573.037, RSMo 1994, and sections 407.020 and 565.253, RSMo Supp. 1999, are repealed and twenty new sections enacted in lieu thereof, to be known as sections 149.071, 407.020, 537.525, 541.033, 542.281, 556.046, 565.090, 565.225, 565.252, 565.253, 568.110, 569.070, 569.095, 573.010, 573.017, 573.023, 573.025, 573.035, 573.037 and 578.524, to read as follows:
149.071. 1. Any person who shall, without the authorization of the director of revenue, make or manufacture, or who shall falsely or fraudulently forge, counterfeit, reproduce, restore, or process any stamp, impression, copy, facsimile, or other evidence for the purpose of indicating the payment of the tax levied by this chapter, or who shall knowingly or by a deceptive act use or pass, or tender as true, or affix, impress, or imprint, by use of any device, rubber stamp or by any other means, or any package containing cigarettes, any unauthorized, false, altered, forged, counterfeit or previously used stamp, impressions, copies, facsimilies or other evidence of cigarette tax payment, shall be guilty of a felony and, upon conviction, shall be punished by imprisonment by the state department of corrections and human resources for a term of not less than two years nor more than five years.
2. It shall be unlawful for any person:
(1) To sell or distribute in this state; to acquire, hold, own, possess or transport for sale or distribution in this state; or to import or cause to be imported into this state for sale or distribution in this state:
(a) Any cigarettes the package of which:
a. Bears any statement, label, stamp, sticker or notice indicating that the manufacturer did not intend the cigarettes to be sold, distributed or used in the United States, including but not limited to labels stating "For Export Only", "U.S. Tax-Exempt", "For Use Outside U.S." or similar wording; or
b. Does not comply with:
(i) All requirements imposed by or pursuant to federal law regarding warnings and other information on packages of cigarettes manufactured, packaged or imported for sale, distribution or use in the United States, including but not limited to the precise warning labels specified in the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Section 1333; and
(ii) All federal trademark and copyright laws;
(b) Any cigarettes imported into the United States in violation of 26 U.S.C. Section 5754, or any other federal law or implementing federal regulations;
(c) Any cigarettes that such person otherwise knows or has reason to know the manufacturer did not intend to be sold, distributed or used in the United States; or
(d) Any cigarettes for which there has not been submitted to the Secretary of the U.S. Department of Health and Human Services the list or lists of the ingredients added to tobacco in the manufacture of such cigarettes as required by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Section 1335a;
(2) To alter the package of any cigarettes prior to sale or distribution to the ultimate consumer so as to remove, conceal or obscure:
(a) Any statement, label, stamp, sticker or notice described in subparagraph a. of paragraph (a) of subdivision (1) of this subsection;
(b) Any health warning that is not specified in or does not conform with the requirements of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Section 1333; or
(3) To affix any tax stamp to the package of any cigarettes described in subsection 1 of this section or altered in violation of this subsection.
3. On the first business day of each month, each person licensed to affix the state tax stamp to cigarettes shall file with the department for all cigarettes imported into the United States to which such person has affixed the tax stamp in the preceding month:
(1) A copy of:
(a) The permit issued pursuant to the Internal Revenue Code, 26 U.S.C. Section 5713, to the person importing such cigarettes into the United States allowing such person to import such cigarettes; and
(b) The customs form containing, with respect to such cigarettes, the internal revenue tax information required by the U.S. Bureau of Alcohol, Tobacco and Firearms;
(2) A statement signed by such person under penalty of perjury which shall be treated as confidential by the commissioner and exempt from disclosure pursuant to chapter 610, RSMo, identifying the brand and brand styles of all such cigarettes, the quantity of each brand style of such cigarettes, the supplier of such cigarettes and the person or persons, if any, to whom such cigarettes have been conveyed for resale, and a separate statement signed by such person under penalty of perjury, which shall not be treated as confidential or exempt from disclosure, separately identifying the brands and brand styles of such cigarettes;
(3) A statement signed by an officer of the manufacturer or importer under penalty of perjury certifying that the manufacturer or importer has complied with:
(a) The package health warning and ingredient reporting requirements of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Sections 1333 and 1335a, with respect to such cigarettes; and
(b) Sections 196.1000 and 196.1003, RSMo, including a statement indicating whether the manufacturer is or is not a participating tobacco manufacturer within the meaning of sections 196.1000 and 196.1003, RSMo.
4. Any person who sells or holds for sale cigarette packages to which is affixed a tax stamp in violation of this section is guilty of a class D felony.
5. The department of revenue may suspend or revoke a wholesale license of any person who sells or holds for sale cigarette packages to which is affixed a tax stamp in violation of this section and impose a civil penalty in an amount not to exceed the greater of five hundred percent of the retail value of the cigarettes involved or five thousand dollars.
6. Cigarettes that are acquired, held, owned, possessed, transported in, imported into, or sold or distributed in this state in violation of this section shall be subject to seizure and forfeiture, with all such cigarettes so seized and forfeited destroyed. Such cigarettes shall be deemed contraband whether the violation of this section is knowing or otherwise.
7. A violation of this section is a deceptive act or practice pursuant to this section. In addition to any other remedy provided by this section or other law, any person may bring an action for:
(1) Appropriate injunctive or other equitable relief;
(2) Actual damages, if any, sustained by reason of a violation of this section; and
(3) As determined by the court, interest on such damages from the date of the complaint, taxable costs and reasonable attorney's fees.
If the trier of fact finds that the violation is egregious, the judgment may be increased to an amount not in excess of three times the actual damages sustained by reason of such violation.
8. The provisions of this section shall not apply to:
(1) Cigarettes allowed to be imported or brought into the United States for personal use; and
(2) Cigarettes sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with 19 U.S.C. Section 1555(b) and any implementing regulations; provided, however, that this section shall apply to any such cigarettes that are brought back into the customs territory for resale within the customs territory.
9. For the purposes of this section, the term "importer" means importer as such term is defined in 26 U.S.C. Section 5702(1).
10. If any provision of this section or its application to any person or circumstance is held invalid, the remainder of this section or the application of the provision to other persons or circumstances shall not be affected.
11. It shall be unlawful for any person to knowingly sell any cigarettes to persons eighteen years of age or less through the use of the Internet. Any violation of this subsection is a class A misdemeanor.
407.020. 1. The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri, is declared to be an unlawful practice. The use by any person, in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri of the fact that the attorney general has approved any filing required by this chapter as the approval, sanction or endorsement of any activity, project or action of such person, is declared to be an unlawful practice. Any act, use or employment declared unlawful by this subsection violates this subsection whether committed before, during or after the sale, advertisement or solicitation.
2. Nothing contained in subsection 1 of this section shall apply to:
(1) The owner or publisher of any newspaper, magazine, publication or printed matter wherein such advertisement appears, or the owner or operator of a radio or television station which disseminates such advertisement when the owner, publisher or operator has no knowledge of the intent, design or purpose of the advertiser; or
(2) Any institution or company that is under the direction and supervision of the director of the department of insurance, or director of the division of finance, unless the directors of such divisions specifically authorize the attorney general to implement the powers of this chapter or such powers are provided to either the attorney general or a private citizen by statute.
3. Any person who willfully and knowingly engages in any act, use, employment or practice declared to be unlawful by subsection 1 of this section with the intent to defraud shall be guilty of a class D felony.
4. A person commits the unlawful practice of computer invasion of privacy when he or she uses a computer, computer network, computer program, computer software, or computer system and intentionally examines, without authorization of the owner of the computer or computer equipment, any employment, salary, credit or any other financial or personal information relating to any other person. "Examination" under this section requires that the person review the information relating to any other person after the time at which the person knows or should know that he or she is without authority from the owner of the computer or computer equipment to view the information displayed.
5. The unlawful practice of computer invasion of privacy is a class A misdemeanor, unless the offense is committed for the purpose of devising or executing any scheme or artifice to defraud or to obtain any property, the value of which is seven hundred fifty dollars or more, in which case computer invasion of privacy is a class C felony.
6. A person commits the unlawful practice of tampering with computer equipment if he knowingly and without authorization or without reasonable grounds to believe that he has such authorization:
(1) Modifies, destroys, damages, or takes equipment or data storage devices used or intended to be used in a computer, computer system, or computer network; or
(2) Modifies, destroys, damages, or takes any computer, computer system, or computer network.
7. The unlawful practice of tampering with computer equipment is a class A misdemeanor, unless:
(1) The offense is committed for the purpose of executing any scheme or artifice to defraud or obtain any property, the value of which is seven hundred fifty dollars or more, in which case it is a class C felony; or
(2) The damage to such computer equipment or to the computer, computer system, or computer network is seven hundred fifty dollars or greater, in which case it is a class C felony.
8. A person commits the unlawful practice of tampering with computer users if he knowingly and without authorization or without reasonable grounds to believe that he has such authorization:
(1) Accesses or causes to be accessed any computer, computer system, or computer network; or
(2) Denies or causes the denial of computer system services to an authorized user of such computer system services, which, in whole or in part, is owned by, under contract to, or operated for, or on behalf of, or in conjunction with another.
9. The unlawful practice of tampering with computer users is a class A misdemeanor unless the offense is committed for the purpose of devising or executing any scheme or artifice to defraud or to obtain any property, the value of which is seven hundred fifty dollars or more, in which case tampering with computer users is a class D felony.
10. It shall be the duty of each prosecuting attorney and circuit attorney in their respective jurisdictions to commence any criminal actions under this section, and the attorney general shall have concurrent original jurisdiction to commence such criminal actions [throughout the state] in all counties of the second, third and fourth classification where such violations have occurred.
[5. It shall be an unlawful practice for any long-term care facility, as defined in section 660.600, RSMo, except a facility which is a residential care facility I or a residential care facility II, as defined in section 198.006, RSMo, which makes, either orally or in writing representation to residents, prospective residents, their families or representatives, regarding the quality of care provided, or systems or methods utilized for assurance or maintenance of standards of care, to refuse to provide copies of documents which reflect the facility's evaluation of the quality of care, except that the facility may remove information that would allow identification of any resident. If the facility is requested to provide any copies, a reasonable amount, as established by departmental rule, may be charged.
6. Any long-term care facility, as defined in section 660.600, RSMo, which commits an unlawful practice under this section shall be liable for damages in a civil action of up to one thousand dollars for each violation, and attorney's fees and costs incurred by a prevailing plaintiff, as allowed by the circuit court.]
537.525. 1. In addition to any other civil remedy available, the owner or lessee of the computer, computer equipment, computer system, computer network, computer program, computer [service] services or data may bring a civil action against any person who allegedly violates sections 569.095 to 569.099, RSMo, for compensatory damages, including any expenditures reasonably and necessarily incurred by the owner or lessee to verify that [a] the computer, computer equipment, computer system, computer network, computer program, computer [service,] services or data was not altered, damaged, or deleted by the unauthorized access or expenditures reasonably and necessarily incurred to block future access to any person alleged to have violated sections 569.095 to 569.099, RSMo.
2. In any action brought pursuant to this section, the court may award reasonable attorney's fees to a prevailing plaintiff.
541.033. Persons accused of committing offenses against the laws of this state[, except as may be otherwise provided by law,] shall be prosecuted:
(1) In the county in which the offense is committed; or
(2) If the offense is committed partly in one county and partly in another, [or if the elements of the crime occur in more than one county,] then in any of the counties where any [element] conduct in furtherance of the offense occurred;
(3) If subdivision (1) or (2) does not apply, then in the county in which the victim resided; or
(4) In such venue as otherwise provided by law.
542.281. 1. Any police officer, sheriff or deputy sheriff may make application for the issuance of a search warrant to search for and seize:
(1) Obscene matter being held or displayed for sale, exhibition, distribution, or circulation to the public;
(2) Matter that is pornographic for minors being held or displayed for sale, exhibition, distribution, or circulation to minors;
(3) Property which has been used by the owner, or used with his consent, as a raw material or as an instrument to publish or produce such matter as described in [subdivisions (1) and (2) of] this subsection.
2. A warrant to search for and seize the matters and property described in subsection 1 of this section as evidence in a criminal proceeding pursuant to chapter 573, RSMo, may be issued by a judge of the circuit court in the county or judicial district in which the alleged matter or property is located. Except as provided in this section, the issuance of a warrant to search for and seize obscene matter shall be governed by the provisions of section 542.276. Notwithstanding subsection 3 of section 542.276, oral testimony may be considered.
3. The application and the warrant, if issued, shall designate precisely by title, or otherwise, each item to be searched for and seized.
4. No warrant shall be issued to search for and seize any item unless the judge determines there is probable cause to believe that such item is obscene as defined in section 573.010, RSMo, and is being displayed, sold, exhibited, distributed, or circulated to the public or is pornographic for minors as defined in section 573.010, RSMo, and is being displayed, sold, exhibited, distributed or circulated to minors.
5. If the item to be seized is a book, magazine, paper, or pamphlet or an item that may be photographed, a copy or photograph of the allegedly obscene item may be annexed to the application.
6. If the item to be seized is a motion picture film or video cassette, written affidavits verified by oath or affirmation of law enforcement officers and city or county prosecutors may supplement the application.
7. An officer in making his application for a warrant may rely on past viewings of a motion picture film or video cassette that is the same as the motion picture film or video cassette to be seized if the film or video cassette to be seized can be identified as the same as or a copy of, the prior viewed film or video cassette by the title of the film or video cassette or the package or label on or surrounding the film or video cassette or some other manner.
8. If the purpose of applying for a warrant is to search for and seize obscene material, other than child pornography as defined in section 573.010, RSMo, for other than evidentiary purposes, the judge shall hold an adversary hearing to determine whether such matter is obscene before issuing a warrant. Not less than twenty-four hours before such hearing, written notice of the date, time, place and nature of the hearing, including a description of the matter sought, shall be personally served upon the dealer, exhibitor, displayer or his agent. No warrant shall be issued without the dealer, distributor, or displayer being given a reasonable opportunity to appear in opposition to the issuance. If the material to be seized is the same as or another copy of matter that has already been determined to be obscene in a criminal proceeding against the dealer, exhibitor, displayer or his agent, the determination of obscenity in the criminal proceeding shall constitute clear and convincing evidence that the matter to be seized pursuant to this subsection is obscene. Except when the dealer, exhibitor, or displayer consents to a longer period, or by his actions or pleadings, willfully prevents the prompt resolution of the hearing, a decision shall be rendered no later than ten days from the date of the commencement of the hearing. After service of notice of the hearing, or subpoena, or the execution of a search warrant, intentional alteration, destruction, or removal of any matter, or duplicate of matter, described in the notice shall be punished as contempt of court.
556.046. 1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It is specifically denominated by statute as a lesser degree of the offense charged; or
(3) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.
2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. An offense is charged for purposes of this section if:
(1) It is in an indictment or information; or
(2) It is an offense submitted to the jury because there is a basis for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense.
3. The court shall be obligated to instruct the jury with respect to a particular included offense only if there is a basis in the evidence for acquitting the defendant of the immediately higher included offense and there is a basis in the evidence for convicting the defendant of that particular included offense.
565.090. 1. A person commits the crime of harassment if for the purpose of frightening or disturbing another person, he
(1) Communicates [in writing or by telephone] by any means a threat to commit any felony; or
(2) [Makes a telephone call or communicates in writing and] Uses coarse language offensive to one of average sensibility in the course of communicating to another person; or
(3) [Makes a telephone call anonymously] Communicates in a manner that does not reveal the person's identity; or
(4) [Makes repeated telephone calls] Repeatedly communicates to another person.
2. Harassment is a class A misdemeanor except that a violation of subdivision (1) of subsection 1 of this section is a class D felony.
565.225. 1. As used in this section, the following terms shall mean:
(1) "Course of conduct", a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct". Such constitutionally protected activity includes picketing or other organized protests;
(2) "Credible threat", a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause physical injury to, a person and includes a threat communicated to the targeted person by any means including the posting of a site or message that is accessible via a computer and is reasonably likely to cause the targeted person to reasonably fear for his or her safety if made aware of the content of the site or message;
(3) "Harasses", to engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress, and that actually causes substantial emotional distress to that person.
2. Any person who purposely and repeatedly harasses or follows with the intent of harassing another person commits the crime of stalking.
3. Any person who purposely and repeatedly harasses or follows with the intent of harassing or harasses another person, and makes a credible threat with the intent to place that person in reasonable fear of death or serious physical injury, commits the crime of aggravated stalking.
4. The crime of stalking shall be a class A misdemeanor for the first offense. A second or subsequent offense within five years of a previous finding or plea of guilt against any victim shall be a class D felony.
5. The crime of aggravated stalking shall be a class D felony for the first offense. A second or subsequent offense within five years of a previous finding or plea of guilt against any victim shall be a class C felony.
6. Any law enforcement officer may arrest, without a warrant, any person he or she has probable cause to believe has violated the provisions of this section.
565.252. 1. A person commits the crime of invasion of privacy in the first degree if he or she knowingly photographs or films another person, without the person's knowledge and consent, while the person being photographed or filmed is in a state of full or partial nudity and is in a place where he or she would have a reasonable expectation of privacy, and the person subsequently distributes the photograph or film to another or transmits the image contained in the photograph or film in a manner that allows access to that image via a computer.
2. Invasion of privacy in the first degree is a class C felony.
565.253. 1. A person commits the crime of invasion of privacy in the second degree if he or she knowingly views, photographs or films another person, without that person's knowledge and consent, while the person being viewed, photographed or filmed is in a state of full or partial nudity and is in a place where he or she would have a reasonable expectation of privacy.
2. Invasion of privacy in the second degree is a class A misdemeanor; unless more than one person is viewed, photographed or filmed in full or partial nudity in violation of sections 565.250 to 565.257 during the same course of conduct, in which case invasion of privacy is a class D felony; and unless committed by a prior invasion of privacy offender, in which case invasion of privacy is a class C felony. Prior pleas or findings of guilt shall be pled and proven in the same manner required by the provisions of section 558.021, RSMo.
568.110. 1. Any [commercial] film and photographic print processor, computer provider, installer or repair person, or any Internet service provider who has knowledge of or observes, within the scope of the person's professional capacity or employment, any film, photograph, videotape, negative, [or] slide, visual depiction or computer-generated image or picture depicting a child under the age of [seventeen] eighteen years engaged in an act of sexual conduct shall report such instance to the law enforcement agency having jurisdiction over the case immediately or as soon as practically possible.
2. Failure to make such report shall be a class B misdemeanor.
3. Nothing in this section shall be construed to require a provider of electronic communication services or remote computing services to monitor any user, subscriber or customer of the provider, or the content of any communication of any user, subscriber or customer of the provider.
569.070. 1. A person commits the crime of causing catastrophe if he:
(1) Knowingly causes a catastrophe by explosion, fire, flood, collapse of a building, release of poison, radioactive material, bacteria, virus, computer virus or other dangerous and difficult to confine force or substance;
(2) Knowingly and without authorization alters any computer network or program with the purpose of causing a catastrophe by one or more of the events listed in subdivision (1) of this subsection.
2. "Catastrophe" means death or serious physical injury to ten or more people or substantial damage to five or more buildings or inhabitable structures or substantial damage to a vital public facility or public service which seriously impairs its usefulness or operation.
3. Causing catastrophe is a class A felony.
569.095. 1. A person commits the crime of tampering with computer data if he knowingly and without authorization or without reasonable grounds to believe that he has such authorization:
(1) Modifies or destroys data or programs residing or existing internal to a computer, computer system, or computer network; or
(2) Modifies or destroys data or programs or supporting documentation residing or existing external to a computer, computer system, or computer network; or
(3) Discloses or takes data, programs, or supporting documentation, residing or existing internal or external to a computer, computer system, or computer network; or
(4) Discloses or takes a password, identifying code, personal identification number, or other confidential information about a computer system or network that is intended to or does control assess to the computer system or network;
(5) Accesses a computer, a computer system, or a computer network, and intentionally examines information about another person;
(6) Receives, retains, uses, or discloses any data he knows or believes was obtained in violation of this subsection.
2. Tampering with computer data is a class A misdemeanor, unless the offense is committed for the purpose of devising or executing any scheme or artifice to defraud or to obtain any property, the value of which is [one hundred fifty] seven hundred fifty dollars or more, in which case tampering with computer data is a class D felony.
573.010. As used in this chapter the following terms shall mean:
(1) "Child", any person under the age of fourteen;
[(1)] (2) "Child pornography", any obscene material or performance depicting sexual conduct, sexual contact, or a sexual performance as these terms are defined in section 556.061, RSMo, and which has as one of its participants or portrays as an observer of such conduct, contact, or performance a [child] minor under the age of eighteen; [provided, that it shall not include material which is not the visual reproduction of a live event;]
[(2)] (3) "Displays publicly", exposing, placing, posting, exhibiting, or in any fashion displaying in any location, whether public or private, an item in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a street, highway or public sidewalk, or from the property of others or from any portion of the person's store, or the exhibitor's store or property when items and material other than this material are offered for sale or rent to the public;
[(3)] (4) "Explicit sexual material", any pictorial or three dimensional material depicting human masturbation, deviate sexual intercourse, sexual intercourse, direct physical stimulation or unclothed genitals, sadomasochistic abuse, or emphasizing the depiction of post-pubertal human genitals; provided, however, that works of art or of anthropological significance shall not be deemed to be within the foregoing definition;
[(4)] (5) "Furnish", to issue, sell, give, provide, lend, mail, deliver, transfer, circulate, disseminate, present, exhibit or otherwise provide;
[(5)] (6) "Material", anything printed or written, or any picture, drawing, photograph, motion picture film, videotape or videotape production, or pictorial representation, or any statue or other figure, or any recording or transcription, or any mechanical, chemical, or electrical reproduction, or anything which is or may be used as a means of communication. "Material" includes undeveloped photographs, molds, printing plates and other latent representational objects;
[(6)] (7) "Minor", any person under the age of eighteen;
[(7)] (8) "Nudity", the showing of post-pubertal human genitals or pubic area, with less than a fully opaque covering;
[(8)] (9) "Obscene", any material or performance is obscene if, taken as a whole:
(a) Applying contemporary community standards, its predominant appeal is to prurient interest in sex; and
(b) [Taken as a whole with] The average person, applying contemporary community standards, would find the material it depicts or describes sexual conduct in a patently offensive way; and
(c) [Taken as a whole, it] A reasonable person would find the material lacks serious literary, artistic, political or scientific value;
[(9)] (10) "Performance", any play, motion picture film, videotape, dance or exhibition performed before an audience of one or more;
[(10)] (11) "Pornographic for minors", any material or performance is pornographic for minors if the following apply:
(a) The average person, applying contemporary community standards, would find that the material or performance, taken as a whole, has a tendency to cater or appeal to a prurient interest of minors; and
(b) The material or performance depicts or describes nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for minors; and
(c) The material or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors;
[(11)] (12) "Promote", to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same;
[(12)] (13) "Sadomasochistic abuse", flagellation or torture by or upon a person as an act of sexual stimulation or gratification;
[(13)] (14) "Sexual conduct", actual or simulated, normal or perverted acts of human masturbation; deviate sexual intercourse; sexual intercourse; or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act of apparent sexual stimulation or gratification or any sadomasochistic abuse or acts including animals or any latent objects in an act of apparent sexual stimulation or gratification;
[(14)] (15) "Sexual excitement", the condition of human male or female genitals when in a state of sexual stimulation or arousal;
[(15)] (16) "Wholesale promote", to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, or to offer or agree to do the same for purposes of resale or redistribution.
573.017. Any city, town and county may enact and enforce an ordinance prohibiting public nudity, or any live electronic transmission via Internet of any live public nudity, that substantially complies with City of Erie v. Pap's A.M. TDBA "Kandyland", No. 98-1161, decided by the Supreme Court of the United States on March 29, 2000.
573.023. 1. A person commits the crime of sexual exploitation of a minor if, knowing of its content and character, such person photographs, films, videotapes, produces, or otherwise creates obscene material with a minor or child pornography.
2. Sexual exploitation of a minor is a class B felony unless the minor is a child, in which case it is a class A felony.
573.025. 1. A person commits the crime of promoting child pornography in the first degree if, knowing its content and character, [he] such person photographs, films, videotapes, produces[, publishes] or otherwise creates [child pornography, or knowingly causes another to do so] obscene material with a child or child pornography.
2. Promoting child pornography in the first degree is a class [B] C felony[, and upon conviction an additional fine of at least five thousand dollars, but not more than five hundred thousand dollars may be added to any other penalties imposed by law] unless the person knowingly promotes such material to a minor in which case it is a class B felony.
3. Nothing in this section shall be construed to require a provider of electronic communication services or remote computing services to monitor any user, subscriber or customer of the provider, or the content of any communication of any user, subscriber or customer of the provider.
573.035. 1. A person commits the crime of promoting child pornography in the second degree if, knowing its content and character[, he:
(1) Sells, delivers, exhibits or otherwise makes available, or offers or agrees to sell, deliver, exhibit, or otherwise make available, any child pornography; or
(2) Buys, procures or possesses child pornography with the purpose to furnish it to others] promotes obscene material that has a child as one of its participants, or portrays what appears to be a child as a participant or observer of sexual conduct.
2. Promoting child pornography in the second degree is a class D felony[, and upon conviction an additional fine of at least five thousand dollars, but not more than five hundred thousand dollars may be added to any other penalties imposed by law] unless the person knowingly promotes such material to a minor, in which case it is a class C felony.
573.037. 1. A person commits the crime of possession of child pornography if [he knowingly:
(1)], knowing of its content and character, such person possesses [or controls] any obscene material that has a [minor] child as one of its participants or portrays what appears to be a child as an observer or participant of sexual conduct[, sexual contact or a sexual performance a minor; or
(2) Possesses or controls any material that shows a minor participating or engaging in sexual conduct].
2. Possession of child pornography is a class A misdemeanor unless the person has pleaded guilty to or has been found guilty of an offense under this section [committed at a different time], in which case it is a class D felony.
578.524. 1. Any school district as defined in section 160.011, RSMo, any university or state college organized pursuant to chapters 172 through 174, RSMo, or any technical or vocational school organized pursuant to chapter 178, RSMo, that provides computers accessible to its students or the public shall, on or before July 1, 2002, develop a written computer use policy designed to prevent minors from gaining access to material which is pornographic for minors.
2. The board of any library which receives state funds and provides public access to its computers shall, on or before July 1, 2002, develop a written computer use policy designed to prevent minors from gaining access to material which is pornographic for minors.
3. Any school district, university, state college, vocational school, technical school or library described in subsections 1 and 2 of this section that does not comply with the requirements of this section by July 1, 2002, shall not expend any funds for the purchase of computers, computer equipment, computer programs or computer services until such time as that entity has met the requirements of this section.
Section B. The repeal and reenactment of section 407.020 shall become effective on January 1, 2001.