Pennsylvania Act 1990-207 — CRIMES CODE (18 PA.C.S.) - AMEND

Act text

CRIMES CODE (18 PA.C.S.) - AMEND
                 Act of Dec. 19, 1990, P.L. 1332, No. 207             Cl. 18
                             Session of 1990
                               No. 1990-207

                                  AN ACT

     HB 1141

     Amending Title 18 (Crimes and Offenses) of the Pennsylvania
        Consolidated Statutes, further providing for obscene and
        other sexual materials; providing for obscene performances;
        prohibiting the disclosure of confidential tax information by
        certain persons; and further providing for criminal history
        record information.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Section 5903 of Title 18 of the Pennsylvania
     Consolidated Statutes is amended to read:
      § 5903.  Obscene and other sexual materials and performances.
        (a)  Offenses defined.--No person, knowing the obscene
     character of the materials or performances involved, shall:
            (1)  display or cause or permit the display of any
        explicit sexual materials as defined in subsection (c) in or
        on any window, showcase, newsstand, display rack, billboard,
        display board, viewing screen, motion picture screen, marquee
        or similar place in such manner that the display is visible
        from any public street, highway, sidewalk, transportation
        facility or other public thoroughfare, or in any business or
        commercial establishment where minors, as a part of the
        general public or otherwise, are or will probably be exposed
        to view all or any part of such materials;
            (2)  sell, lend, distribute, exhibit, give away or show
        any obscene materials to any person [17] 18 years of age or
        older or offer to sell, lend, distribute, exhibit or give
        away or show, or have in his possession with intent to sell,
        lend, distribute, exhibit or give away or show any obscene
        materials to any person [17] 18 years of age or older, or
        knowingly advertise any obscene materials in any manner;
            (3)  design, copy, draw, photograph, print, utter,
        publish or in any manner manufacture or prepare any obscene
        materials;
            (4)  write, print, publish, utter or cause to be written,
        printed, published or uttered any advertisement or notice of
        any kind giving information, directly or indirectly, stating
        or purporting to state where, how, from whom, or by what
        means any obscene materials can be purchased, obtained or
        had; [or]
            (5)  produce, present or direct any obscene performance
        or participate in a portion thereof that is obscene or that
        contributes to its obscenity; or
            [(5)] (6)  hire, employ, use or permit any minor child to
        do or assist in doing any act or thing mentioned in this
        subsection.
        (b)  Definitions.--As used in this section the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Community."  For the purpose of applying the "contemporary
     community standards" in this section, community means the State.
        "Knowing."  As used in subsection (a), knowing means having
     general knowledge of, or reason to know or a belief or ground
     for belief which warrants further inspection or inquiry of, the
     character and content of any material or performance described
     therein which is reasonably susceptible of examination by the
     defendant.
        "[Obscene materials] Material."  Any literature, including
     any book, magazine, pamphlet, newspaper, storypaper, bumper
     sticker, comic book or writing[, and]; any figure, visual
     representation, or image, including any drawing, photograph,
     picture, videotape or motion picture[; if:].
        "Nude."  Means showing the human male or female genitals,
     pubic area or buttocks with less than a fully opaque covering,
     or showing the female breast with less than a fully opaque
     covering of any portion thereof below the top of the nipple.
        "Obscene."  Any material or performance, if:
            (1)  the average person applying contemporary community
        standards would find that the subject matter taken as a whole
        appeals to the prurient interest;
            (2)  the subject matter depicts or describes in a
        patently offensive way, sexual conduct of a type described in
        this section; and
            (3)  the subject matter, taken as a whole, lacks serious
        literary, artistic, political, educational or scientific
        value.
        "Performance."  Means any play, dance or other live
     exhibition performed before an audience.
        "Sadomasochistic abuse."  Means, in a sexual context,
     flagellation or torture by or upon a person who is nude or clad
     in undergarments, a mask or in a bizarre costume or the
     condition of being fettered, bound or otherwise physically
     restrained on the part of one who is nude or so clothed.
        "Sexual conduct."  Patently offensive representations or
     descriptions of ultimate sexual acts, normal or perverted,
     actual or simulated, including sexual intercourse, anal or oral
     sodomy and sexual bestiality; and patently offensive
     representations or descriptions of masturbation, excretory
     functions, sadomasochistic abuse and lewd exhibition of the
     genitals.
        "Transportation facility."  Any conveyance, premises or place
     used for or in connection with public passenger transportation,
     whether by air, rail, motor vehicle or any other method,
     including aircraft, watercraft, railroad cars, buses, and air,
     boat, railroad and bus terminals and stations.
        (c)  Dissemination to minors.--No person shall knowingly
     disseminate by sale, loan or otherwise explicit sexual materials
     to a minor. "Explicit sexual materials," as used in this
     subsection, means materials which are obscene or:
            (1)  any picture, photograph, drawing, sculpture, motion
        picture film, videotape or similar visual representation or
        image of a person or portion of the human body which depicts
        nudity, sexual conduct, or sadomasochistic abuse and which is
        harmful to minors; or
            (2)  any book, pamphlet, magazine, printed matter however
        reproduced, or sound recording which contains any matter
        enumerated in paragraph (1), or explicit and detailed verbal
        descriptions or narrative accounts of sexual excitement,
        sexual conduct, or sadomasochistic abuse and which, taken as
        a whole, is harmful to minors.
        (d)  Admitting minor to show.--It shall be unlawful for any
     person knowingly to exhibit for monetary consideration to a
     minor or knowingly to sell to a minor an admission ticket or
     pass or knowingly to admit a minor for a monetary consideration
     to premises whereon there is exhibited, a motion picture show or
     other presentation or performance which, in whole or in part,
     depicts nudity, sexual conduct, or sadomasochistic abuse and
     which is harmful to minors, except that the foregoing shall not
     apply to any minor accompanied by his parent.
        (e)  Definitions.--As used in subsections (c) and (d) of this
     section:
            (1)  "Minor" means any person under the age of [17] 18
        years.
            (2)  "Nudity" means the showing of the human male or
        female genitals, pubic area, or buttocks with less than a
        fully opaque covering, or the showing of the female breast
        with less than a fully opaque covering of any portion thereof
        below the top of the nipple, or the depiction of covered male
        genitals in a discernibly turgid state.
            (3)  "Sexual conduct" means acts of masturbation,
        homosexuality, sexual intercourse, sexual bestiality or
        physical contact with a person's clothed or unclothed
        genitals, pubic area, buttocks or, if such person be a
        female, breast.
            (4)  "Sexual excitement" means the condition of human
        male or female genitals when in a state of sexual stimulation
        or arousal.
            (5)  "Sadomasochistic abuse" means flagellation or
        torture by or upon a person clad in undergarments, a mask or
        bizarre costume, or the condition of being fettered, bound or
        otherwise physically restrained on the part of one so
        clothed.
            (6)  "Harmful to minors" means that quality of any
        description or representation, in whatever form, of nudity,
        sexual conduct, sexual excitement, or sadomasochistic abuse,
        when it:
                (i)  predominantly appeals to the prurient, shameful,
            or morbid interest of minors; and
                (ii)  is patently offensive to prevailing standards
            in the adult community as a whole with respect to what is
            suitable material for minors; and
                (iii)  [is utterly without redeeming social
            importance for minors] taken as a whole, lacks serious
            literary, artistic, political, educational or scientific
            value for minors.
            (7)  "Knowingly" means having general knowledge of, or
        reason to know, or a belief or ground for belief which
        warrants further inspection or inquiry of both:
                (i)  the character and content of any material or
            performance described herein which is reasonably
            susceptible of examination by the defendant; and
                (ii)  the age of the minor: Provided, however, That
            an honest mistake shall constitute an excuse from
            liability hereunder if the defendant made a reasonable
            bona fide attempt to ascertain the true age of such
            minor.
        (f)  Requiring sale as condition of business dealings.--No
     person shall knowingly require any distributor or retail seller
     as a condition to sale or delivery for resale or consignment of
     any literature, book, magazine, pamphlet, newspaper, storypaper,
     paper, comic book, writing, drawing, photograph, videotape,
     figure or image, or any written or printed matter, or any
     article or instrument to purchase or take by consignment for
     purposes of sale, resale or distribution any obscene literature,
     book, magazine, pamphlet, newspaper, storypaper, paper, comic
     book, writing, drawing, photograph, videotape, figure or image,
     or any written or printed matter of an obscene nature or any
     article or instrument of an obscene nature.
        (g)  Injunction.--The attorney for the Commonwealth may
     institute proceedings in equity in the court of common pleas of
     the county in which any person violates or clearly is about to
     violate this section for the purpose of enjoining such
     violation. The court shall issue an injunction only after
     written notice and hearing and only against the defendant to the
     action. The court shall hold a hearing within three days after
     demand by the attorney for the Commonwealth, one of which days
     must be a business day for the court, and a final decree shall
     be filed in the office of the prothonotary within 24 hours after
     the close of the hearing. A written memorandum supporting the
     decree shall be filed within five days of the filing of the
     decree. The attorney for the Commonwealth shall prove the
     elements of the violation beyond a reasonable doubt. The
     defendant shall have the right to trial by jury at the said
     hearing.
        (h)  Criminal prosecution.--
            (1)  Any person who violates subsection (a) or (f) is
        guilty of a misdemeanor of the first degree. Violation of
        subsection (a) is a felony of the third degree if the
        offender has previously been convicted of a violation of
        subsection (a) or if the material was sold, distributed,
        prepared or published for the purpose of resale.
            (2)  Any person who violates subsection (c) or (d) is
        guilty of a misdemeanor of the first degree. Violation of
        subsection (c) or (d) is a felony of the third degree if the
        offender has previously been convicted of a violation of
        subsection (c) or (d).
            (3)  Findings made in an equity action shall not be
        binding in the criminal proceedings.
        (i)  Right to jury trial.--The right to trial by jury shall
     be preserved in all proceedings under this section.
        (j)  Exemptions.--Nothing in this section shall apply to any
     recognized historical society or museum accorded charitable
     status by the Federal Government, any county, city, borough,
     township or town library, any public library, any library of any
     school, college or university or any archive or library under
     the supervision and control of the Commonwealth or a political
     subdivision.
        (k)  Ordinances or resolutions.--Nothing in this chapter
     shall be construed to invalidate, supersede, repeal or preempt
     any ordinance or resolution of any political subdivision insofar
     as it is consistent with this chapter, and political
     subdivisions further retain the right to regulate any
     activities, displays, exhibitions or materials not specifically
     regulated by this chapter.
        Section 2.  Title 18 is amended by adding a section to read:
      § 7326.  Disclosure of confidential tax information.
        (a)  Offense defined.--A person commits a misdemeanor of the
     third degree if he discloses, except to authorized persons for
     official governmental purposes, any tax information that is:
            (1)  designated as confidential by a statute or ordinance
        of a city of the second class; and
            (2)  obtained by him in conjunction with any declaration,
        return, audit, hearing or verification required or authorized
        by statute or ordinance.
        (b)  Exception.--Subsection (a) shall not apply where
     disclosure is required by law or by court order.
        (c)  Definition.--As used in this section, the term "person"
     includes, but is not limited to, a current or former officer or
     employee of the Commonwealth or any of its political
     subdivisions and any other individual who has access to
     confidential tax information.
        Section 3.  The definitions of "intelligence information" and
     "treatment information" in section 9102 of Title 18 are amended
     to read:
      § 9102.  Definitions.
        The following words and phrases when used in this chapter
     shall have the meanings given to them in this section unless the
     context clearly indicates otherwise:
        * * *
        "Intelligence information."  Information concerning the
     habits, practices, characteristics, possessions, associations or
     financial status of any individual[.] compiled in an effort to
     anticipate, prevent, monitor, investigate or prosecute criminal
     activity. Notwithstanding the definition of "treatment
     information" contained in this section, intelligence information
     may include information on prescribing, dispensing, selling,
     obtaining or using a controlled substance as defined in the act
     of April 14, 1972 (P.L.233, No.64), known as The Controlled
     Substance, Drug, Device and Cosmetic Act.
        * * *
        "Treatment information."  Information concerning medical,
     psychiatric, psychological or other rehabilitative treatment
     provided, suggested or prescribed for any individual charged
     with or convicted of a crime.
        Section 4.  Section 9106 of Title 18 is amended to read:
      § 9106.  [Prohibited information] Information in central
                    repository or automated systems.
        (a)  General rule.--Intelligence information, investigative
     information and treatment information shall not be collected in
     the central repository [nor in any automated or electronic
     criminal justice information system]. This prohibition shall not
     preclude the collection in the central repository [or in any
     automated or electronic criminal justice information system] of
     names, words, numbers, phrases or other similar index keys to
     serve as indices to investigative reports.
        (b)  Collection of protected information.--
            (1)  Intelligence information may be placed in an
        automated or electronic criminal justice system only if the
        following apply:
                (i)  The criminal justice agency has reasonable
            suspicion of criminal activity.
                (ii)  Access to the intelligence information
            contained in the automated or electronic criminal justice
            system is restricted to the authorized employees of the
            criminal justice agency and cannot be accessed by any
            other individuals inside or outside of the agency.
                (iii)  The intelligence information is related to
            criminal activity that would give rise to prosecution for
            a State offense graded a misdemeanor or felony, or for a
            Federal offense for which the penalty is imprisonment for
            more than one year. Intelligence information shall be
            categorized based upon subject matter.
                (iv)  The intelligence information is not collected
            in violation of State law.
            (2)  Intelligence information may not be collected or
        maintained in an automated or electronic criminal justice
        system concerning participation in a political, religious or
        social organization, or in the organization or support of any
        nonviolent demonstration, assembly, protest, rally or similar
        form of public speech, unless there is a reasonable suspicion
        that the participation by the subject of the information is
        related to criminal activity or prison rule violation.
            (3)  Investigative information and treatment information
        contained in files of any criminal justice agency may be
        placed within an automated or electronic criminal justice
        information system, provided that access to the investigative
        information and treatment information contained in the
        automated or electronic criminal justice information system
        is restricted to authorized employees of that agency and
        cannot be accessed by individuals outside of the agency.
        (c)  Dissemination of protected information.--
            (1)  Intelligence information may be placed within an
        automated or electronic criminal justice information system
        and disseminated only if the following apply:
                (i)  The information is reliable as determined by an
            authorized intelligence officer.
                (ii)  The department, agency or individual requesting
            the information is a criminal justice agency which has
            policies and procedures adopted by the Office of Attorney
            General in consultation with the Pennsylvania State
            Police which are consistent with this act and include:
                    (A)  Designation of an intelligence officer or
                officers by the head of the criminal justice agency
                or his designee.
                    (B)  Adoption of administrative, technical and
                physical safeguards, including audit trails, to
                insure against unauthorized access and against
                intentional or unintentional damages.
                    (C)  Labeling information to indicate levels of
                sensitivity and levels of confidence in the
                information.
                (iii)  The information is requested in connection
            with the duties of the criminal justice agency requesting
            the information, and the request for information is based
            upon a name, fingerprints, modus operandi, genetic
            typing, voice print or other identifying characteristic.
            (2)  If an intelligence officer of a disseminating agency
        is notified that intelligence information which has been
        previously disseminated to another criminal justice agency is
        materially misleading, obsolete or otherwise unreliable, the
        information shall be corrected and the recipient agency
        notified of the change within a reasonable period of time.
            (3)  Criminal justice agencies shall establish retention
        schedules for intelligence information. Intelligence
        information shall be purged under the following conditions:
                (i)  The data is no longer relevant or necessary to
            the goals and objectives of the criminal justice agency.
                (ii)  The data has become obsolete, making it
            unreliable for present purposes and the utility of
            updating the data would be worthless.
                (iii)  The data cannot be utilized for strategic or
            tactical intelligence studies.
            (4)  Investigative and treatment information shall not be
        disseminated to any department, agency or individual unless
        the department, agency or individual requesting the
        information is a criminal justice agency which requests the
        information in connection with its duties, and the request is
        based upon a name, fingerprints, modus operandi, genetic
        typing, voice print or other identifying characteristic.
            (5)  Each municipal police department accessing automated
        information shall file a copy of its procedures with the
        Pennsylvania State Police for approval. Such plan shall be
        reviewed within 60 days.
            (6)  Each district attorney accessing automated
        information shall file a copy of its procedures with the
        Office of Attorney General for approval. Such plan shall be
        reviewed within 60 days.
        (d)  Secondary dissemination prohibited.--A criminal justice
     agency which possesses information protected by this section,
     but which is not the source of the information, shall not
     disseminate or disclose the information to another criminal
     justice agency but shall refer the requesting agency to the
     agency which was the source of the information. This prohibition
     shall not apply if the agency receiving the information is
     investigating or prosecuting a criminal incident in conjunction
     with the agency possessing the information. Agencies receiving
     information protected by this section assume the same level of
     responsibility for the security of such information as the
     agency which was the source of the information.
        (e)  Notations of the record.--Criminal justice agencies
     maintaining intelligence information, investigative information
     or treatment information must enter, as a permanent part of an
     individual's information file, a listing of all persons and
     agencies to whom they have disseminated that particular
     information, the date of the dissemination and the purpose for
     which the information was disseminated. This listing shall be
     maintained separate from the record itself.
        (f)  Security requirements.--Every criminal justice agency
     collecting, storing or disseminating intelligence information,
     investigative information or treatment information shall insure
     the confidentiality and security of such information by
     providing that, wherever such information is maintained, a
     criminal justice agency must:
            (1)  institute procedures to reasonably protect any
        repository from theft, fire, sabotage, flood, wind or other
        natural or manmade disasters;
            (2)  select, supervise and train all personnel authorized
        to have access to intelligence information, investigative
        information or treatment information;
            (3)  insure that, where computerized data processing is
        employed, the equipment utilized for maintaining intelligence
        information, investigative information or treatment
        information is dedicated solely to purposes related to the
        administration of criminal justice or, if the equipment is
        not used solely for the administration of criminal justice,
        the criminal justice agency is accorded equal management
        participation in computer operations used to maintain the
        intelligence information, investigative information or
        treatment information.
        (g)  Penalties.--Any person, including any agency or
     organization, who violates the provisions of this section shall
     be subject to the administrative penalties provided in section
     9181 (relating to general administrative sanctions) and the
     civil penalties provided in section 9183 (relating to civil
     actions) in addition to any other civil or criminal penalty
     provided by law.
        Section 5.  Section 9141 of Title 18 is amended to read:
      § 9141.  [Annual audit of repositories] Audits.
        (a)  Audit required.--
            (1)  The Attorney General shall conduct annual audits of
        the central repository and of a representative sample of all
        repositories. The Office of Attorney General shall conduct a
        review of State criminal justice agencies' automated policies
        and procedures established pursuant to section 9106 (relating
        to information in central repository or automated systems) to
        ensure that the provisions of this chapter are upheld within
        two years of the effective date of this act.
            (2)  The Pennsylvania State Police shall conduct an
        annual audit of at least 5% of all municipal police
        department plans, policies or procedures which are
        implemented pursuant to section 9106(c) to ensure that the
        provisions of this chapter are upheld. The first such audit
        shall be conducted within two years of the effective date of
        this act. A copy of the audit shall be submitted to the
        Attorney General.
        (b)  Access to records.--Persons conducting the audit shall
     be provided access to all records, reports and listings required
     to conduct an audit of criminal history record information, and
     all persons with access to such information or authorized to
     receive such information shall cooperate with and provide
     information requested.
        (c)  Contents of audit.--The audit shall contain a report of
     deficiencies and recommendations for the correction of such
     deficiencies. Upon the completion of every audit, the audited
     agency shall carry out the recommendations within a reasonable
     period of time unless the audit report is appealed to the
     Attorney General and the appeal is upheld.
        (d)  Modification of recommendations.--The Attorney General
     shall have the power to modify the corrective measures
     recommended by the audit.
        Section 6.  Title 18 is amended by adding a section to read:
      § 9143.  Regulations.
        It shall be the duty and responsibility of the Attorney
     General, in consultation with the Pennsylvania State Police, to
     adopt rules and regulations pursuant to this act. The Office of
     Attorney General, in consultation with the Pennsylvania State
     Police, shall have the power and authority to promulgate, adopt,
     publish and use guidelines for the implementation of this act
     for a period of one year immediately following the effective
     date of this section pending adoption of final rules and
     regulations.
        Section 7.  This act shall take effect as follows:
            (1)  Section 4 of this act, amending section 9106, shall
        take effect in 60 days.
            (2)  The remainder of this act shall take effect
        immediately.

     APPROVED--The 19th day of December, A. D. 1990.

     ROBERT P. CASEY