H.B. 114 Adult-oriented Performance and Material Amendments: transcript

So, speaking to the bill and the sub one, uh, just from the engineer's point of view and, and I brought Daniel Strong with the CCJJ, uh, commission on Criminal and Juvenile Justice, uh, who will give you the expert testimony. But currently in law, currently in law, it is illegal to, uh, perform in front of or include children in pornographic or lewd performances. That's in statute now, however, that's in one statute now and it makes it confusing to law enforcement. I'm sure it's confusing to performers trying to figure out what the law is saying or intending. And so what this bill does to make it clearer for everyone in this space, law enforcement or performers, is it takes one paragraph and puts it into two separate paragraphs divided by subject so that you can see where's the line on pornography and where is the line on lewdness. So, uh, that concludes my presentation. I know you're surprised and, uh, I'll, I'll turn any time over to, uh, Daniel Strong to give you maybe the technical information. Alright,

Thank you Dan Strong with the sentencing commission and CCJJ. Um, as you probably know, Jack, Representative Jack has run, uh, bills for, uh, the previous two sessions, uh, interested in kind of lewd performances or, uh, performances in public spaces that community might find objectionable. Uh, on, on in both times. He was great to work with us and, um, change the language on the bill to kind of match, um, tailor, uh, what we think would be appropriate. And so we really appreciate that. Last year, uh, when I think it was HB 4 41 came through, we sort of did a deep dive because we couldn't quite figure out at CCJJ and Science Exhibition what that bill was doing that wasn't already prohibited by existing law. And we found four statutes that prohibit, um, pornographic or lewd performances or obscene performances. Uh, and, and in our view, those existing laws went about as far as one could go without infringing on the First Amendment. So Utah kind of already gone about as far as you can go without, you know, crossing that first amendment line. There's an obscenity test that the courts have passed down that we've now enacted into statute. And if your performance meets that definition of obscenity or in Utah, we call it pornography, but it's the same three elements. If it meets those elements, then it is not protected by the First Amendment. And if you do such a performance in a public space or in view of children, that's prohibited by various statutes. So, um, we Uintah Representative Jack with that and he asked reasonably well, if that's the case, then why doesn't anybody know about it? Or why isn't it being enforced in, in cases where it seems obvious that that his line has been crossed. And we talked about that and thought, well, maybe there's an issue here with the clarity of these statutes. For example, uh, distri, one of the performance elements is in a statute titled distributing Pornography. But if you are looking, you know, you've been called to a scene of a, a lude performance that may cross that line, you probably aren't thinking of that as a distributing pornography case. And officers of course don't know the entire code back to front and they may not be able to find the right offense. So we thought that there'd be some benefit in adding clarity here. And so what the bill does is, and, and Jackie, uh, with alleged counsel who drafted this, did a great job kind of finding all the places where performance is included in a, a statute that's targeting, uh, distribution of pornography or displaying materials, et cetera, and broke that out into a separate, um, a separate statute titled performance. Um, that's really all the bill does. It does mirror the penalties that existed before in those other statutes. So you may see in the underlying texts some penalties that look pretty harsh. Uh, those are the penalties that existed where the offense was previously. It's just instead of being an element of a prior offense of a different offense, it is now its own separate offense. And we made the decision at CCJ not to recommend any changes there. Um, and so the, the only, like one other minor thing this bill does that is new is, uh, it, it creates a mens rea of recklessness as to the presence of a child in the offenses that involve performances in front of children. Um, and that's because the prior language is a little bit outdated or antiquated. It used the term knows or believes the person to be a child. And that seemed a little bit strange to us at CCJJ, like what the person believes. That's not like a common mens rea of term, but everyone kinda knows what recklessness means and that seemed to be what the bill was or what the laws were really intending to target. So we recommended that change. And that's been in the bill as well. I think that concludes my presentation. Thank you.

Thank you, Mr. Chair. Um, I'm so excited you found a path forward with this bill. I was just curious, were you not able to fit the word turgid in anywhere? We, we looked for it, but it didn't fit. All right. Maybe next time. Thank you. Thank you Mr. Chair.

Thank you Mr. Chair. And um, thank you for that, uh, explanation. I am, uh, got a question on lines. Uh, if we start at one 90, and this is the section you just discussed about nos or believes it has that men's rea uh, adjustment. But it looks like what I'm seeing here, and I just wanna make sure I'm understanding 'cause it looks like we're actually removing the intentionally, um, language and replacing it or at least removing it so that we're only leaving the nose or beliefs. Is that, Sorry, we had line one 90 of the sub or the, Uh, let me make sure I'm on the sub. I guess That's my problem. I see where you're at. Yeah, I just wanna make sure that that was part of this. So you're looking At the blue stricken text at 1 93 through 1 96. Yeah. So we strike that and we leave the no or beliefs is that intentional

So that language is stricken from distributing material harmful to a minor. But if you, that's, that's because it's, it's actually removing the performance piece that I talked about and then putting it in the new section, which is below at line 2 72.

I See. And then that includes intentional, knowingly or being reckless. Okay. So we're not changing the, the mens rea in the previous section, we're just changing it in the new section.

That's right. Yeah. And honestly, that's maybe something we could look at for the future is doing it in the other ones as well, but we were just focused on the performances here. Alright,

Thank you. Just clarifying.

It's carried over from the past, but what it is it doing in the past and current and future? I is trying to treat smaller age gaps between the performer and the viewer less harshly than larger age gaps. So it's a felony if it's a, um, an adult. Uh, So if someone young like representative F FIA performs, it's not as bad as if someone old like me or like a representative. Uh, I wasn't, Yeah, and it, right. I think because this came from the distributing material statute, the thought was sometimes kids are sharing images at school or whatever and that's less egregious than somebody, you know, a full grown adult showing such an image to a kid. And so this kind of carries that framework over into performance as well.

Never talking in Here. Maryanne Christensen, executive director of Utah Legislative Watch, and I'm here to speak in favor of the bill. Um, we didn't realize 10 years ago how much of a gap we had in our statute to keep our children protected from things children shouldn't be seeing. We didn't realize that we had no statute at all that prevented us from having lewdness and other things going on in parks. Um, I know we have lewdness statutes, but when there were big productions happening in a park, um, which has been a big problem in St. George particularly, we really haven't had the capability of shutting that down. I appreciate Representative Jack's really persistent efforts on this. He's tried a lot of different avenues, um, some that impacted the cities and towns and the permitting process a little too much. And so he just keeps at it and he keeps making things more and more secure for our children when we take them out in public spaces. So I appreciate his work and I appreciate your affirmative vote. Thank you.

Okay. Uh, Cameron Whiting, uh, private citizen Logan. So, um, just wanted to say that I find that the language around, um, performance that's harmful to minors seems vague. Um, and my worry is that laws like these could criminalize being gay in public or criminalized drag shows. Um, if a parent brings their kid to pride or to a drag show, that's their choice as a parent. And if a parent is so negligent that their kid ends up watching this, that seems like that's on them as a parent. So yeah, I would oppose these kinds of laws, so thank you.

Okay. Good morning. My name is Alexis Ends as a parent of four. I support this bill. For me, this issue isn't about targeting any one group. It's not about politics or cultural wars. It's about something much simpler, protecting children and making sure our laws are clearly and consistently applied. As a parent, I work hard to teach my kids about values, boundaries, and age appropriate behavior. I believe that most people, regardless of political party agree that sexually explicit or lewd performances should not take place in front of minors. That principle already exists in our laws. What this bill does, as I understand it, is that it clarifies and cleans up language in our lewdness statute. So there's no confusion about how these protections apply. Adults have the right to express themselves, but children also have the right to be shielded from sexually explicit content. Those two things can coexist. If a performance is truly family friendly and not lewd under existing law, then this bill shouldn't affect it. But if something crosses the line and to sexualize content in front of minors, then I believe the state has a responsibility to step in. This is about maintaining community standards, protecting kids, and ensuring our statutes are clear and enforceable. And I would urge you to please support this bill. Thank you.

Uh, Washington County. I'm the president of Washington County Republican Women.

Okay, thank you. Um, my name's Haley Kaplan and I am also, um, from Washington County down in Santa Clara. Just representing myself today. Um, and I want to, uh, share my support of this bill. I have worked with Representative Jack and as of many parents and community members throughout the state have sent him concerns, um, on this matter. And we appreciate his work on this. And, uh, the attorneys that have helped us look into the law, um, we, Utah leads the way for protecting families and children especially. And it was, it has just been really hard because we have had incidents happen and there just hasn't been a way for law enforcement to really, um, pursue that, uh, with some loopholes in the law. So this bill will definitely help clear that up where law enforcement can do their job. If there is something that has, um, crossed the line for lewdness, then this is a clear way, um, that we can handle those situations and protect our kids. So I would urge the committee to support this bill. Um, and this is gonna help us, uh, lead the way. There's also other states, I know this session, Arizona is also working on a similar bill. Um, so I think a lot of states are, are looking to clear up this, this law, um, and, and help protect our kids. So thank you very much. Uh, Mr. Chairman.

Thank you. Mr. Chair. We have a sub to adopt, is that right? Yes, please. Correct. I move that we adopt, first substitute on HB one 14.

To the, uh, bill sponsor. Uh, just One quick Point of clarification.

Thank you. Just in response to the public testimony, I just wanted to clarify the definitions here because I know if you're reading this statute in isolation, without going back to the definition section, you know, you can think, well, what does harmful to minors mean? What does pornographic mean? Is that in the eye of the beholder? Are we trying to criminalize being LGBT in public or, or that sort of thing? These are defined legal terms taken from Supreme Court case law, so I just want to go over them real quickly. Harmful to minors means any depiction representation in whatever form of nudity, sexual conduct, conduct sexual excitement, or sadomasochistic abuse that taken as a whole, appeals to the pur interest in sex is patently offensive to prevailing standards in the community as a whole with respect to what is suitable for minors, or taken as a whole does not have serious artistic, political, scientific, or literary value. And that is where that's all in because of the First Amendment. So, if a, if a performance does have political, artistic, literary scientific value, or it does not appeal to the pure interest in sex, or it does not patently offensive to prevailing community standards, it's not going to pass that test and it will be protected by the First Amendment. And, and that's, that's not changing under this bill. So, um, I just, I think it's understandable that someone might have those concerns when we talked about it. CCJJ, some of our commissioners brought up, well, memorably, uh, it was right after the Sabrina Carpenter or Grammy's performance and was like, well, is that gonna be illegal under this bill? And it's not. It's, uh, it is gotta cross that obscenity test. And, uh, porn pornographic is defined in a very similar way as to what I just read.

Thank you Mr. Chair. Motion to pass out favorably HB one 14 as substituted.

Uh, yeah, I think Representative Jack has worked really, uh, a long time and has made a lot of adjustments to this. Uh, um, I like the way it's going. I, I, I'm interested to see if whether or not we need to make any adjustments to the other men's rea portions perhaps, but I think as is we, we're going in the right direction, so thank, thank him for his work.

Thank you, Mr. Chair. Oh, sorry.

Thank you. Thank you, Mr. Chair. I'll be succinct even though, you know I'm a slow talker. So this bill is very simple. Really what we have done is, if you remember two years ago, we, we added some code to the lewdness statute and lewdness in front of miners, right? You can be as lewd in adult company as you want, but uh, with minors it's different. And so, uh, but in the couple of years since then, there's been some questions arise about, uh, in the statute is kind of mixed together. Lewdness and pornography, they all got kind of put into one thing. And so, uh, the folks who are enforcing the laws have asked us to separate them. So we've separated pornography with children into one section, lewdness with children in the other. We didn't try to add anything new. We simply separated it to make it clear.

But I have brought with me Daniel Strong of the Commission on Criminal and Juvenile Justice to give you the actual lawyer's version, if that's okay. Mr. Chair, Mr. Strong, and unlike the representative, try not to say but, and lewdness in the same sentence.

I like that it was called lawyer's version, like a, like a Taylor Swift release or something, a boring version. Um, we don't pay enough. I'll, I'll be brief, but I did want to just explain this bill a little bit 'cause there's been a lot of public interest in it. Um, so House Bill one 14, Representative Jack said is really intended to be a clarification of law. Um, there, there have been a couple of bills in this arena in the last couple of years having to do with lewd performances or pornographic performances. And last year, uh, Representative Jack and CCJJ took a look at the statutes together and determined that there were quite a few, or there are four, essentially, statutes that prohibit some sort of obscene or lewd performance. And most of them have gone about as far as I think the law could go without infringing on the First Amendment to prohibit those. And they include, um, definitions of obscenity that are vetted by the courts in those definitions. And so, you know, as there were kind of more, uh, bills attempting to target this arena, we thought, well, it seems like the laws are actually about as, um, far as pushed about as far as they can. And, and Representative Jack asked us, well, why are, why do people not know this? Or why aren't they being enforced? And so we asked around and it seemed like maybe there was just kind of some confusion or some ways we could make things clearer. And so that's what this bill attempts to do. It takes, for example, uh, the, the pornographic performance law used to be included in, uh, distributing pornographic materials. But, you know, you read that title and you don't think that that probably has to do with performance. And so now that's broken out into its own section called Pornographic Performance, and then does that with four statutes. So, um, it also just mirrors all the penalties that were there before. So even though I think if, if a a lay person looks at this bill, it might look like they have all these new kind of mandatory jail sentences and new offenses being created. It's actually just separating those out from existing statutes and then mirroring the penalties that were there before. I think that's all I have to say. Thank you.

Sir. Mr. Chair. Thank you.

Thank you, Mr. Chair. My name is Melanie Mortenson. I am here representing myself. Um, I feel like adults absolutely have the right to express themselves. At the same time, children have the right to be shielded from sexually explicit content. These two principles can coexist. If a performance is truly family friendly and not lewd under existing law, then this bill shouldn't impact it. But if something crosses the line into sexualize content in front of minors, I believe the state has a responsibility to ensure existing standards are repelled. And I know you all wanna get home for the weekend, so I'll help you brief and say, please support HB one 14. Thank you.

Chair Za the committee. My name is Felix Espinoza and I'm here on behalf of Utah for rational sex offense laws in opposition to HB one 14. Uh, excuse me. Uh, 1 44. Uh, HB 1 44 is not simple. It is not a clarification of law. It criminalizes broad expressive conduct without requiring intent of actual harm, relies on vague definitions that inevitably, uh, are arbitrary enforcement and fail to narrowly target the conduct of claims to prevent between 2001 and 2023. Gay pride parades were held in Salt Lake City with no mo movement on legislation restricting their expression when these PRI parades were held in South South Utah because, uh, constituents from this part of the state took issue with that expression, brought restrictions to lewdness involving a child with proposed and past. In vivid description, we urge this committee and the Senate to reject his bill entirely. Utah law already goes about as far as one could go on infringement of First Amendments. This bill pushes past that line. It creates new arrest tools aimed at protected, protected expression wrapped in unassailable language of protecting children. Thank you.

Okay. Alexis Entz from Washington County. Um, I wanna start by thanking Representative Jack for his patients and his persistence on this issue for the last four years. Uh, heaven knows he would much rather be running energy bills. Uh, for me, this issue isn't really about politics or culture wars, it's about something much simpler, protecting children and making sure our laws are applied clearly and consistently. I think it's also worth noting that this bill received unanimous support in-house committee. Um, that tells me this isn't a fringe concern. It reflects a broadly shared desire for clarity and consistency in code. On a personal note, as a parent, I work hard to teach my kid, my kids about values, boundaries, and what's age appropriate. I think most people, regardless of party, can agree that sexually explicit or lewd performances shouldn't take place in front of minors. That principle already exists in Utah law. My understanding is that this bill simply clarifies the language about how those protections apply. At the end of the day, this is really about maintaining reasonable community standards, protecting kids, and making sure our statutes are clear and enforceable. I appreciate your consideration and I urge you to please support this bill. Thank you.

Is this coming through correctly? Yes. I live in Washington County as well. And

We can see your hair now. There we go. Oh, it's Coming through my phone instead of my computer. I'm so sorry. I thought I was on my computer. The world is a mysterious place. Okay. I need to get it with technology. So I am Washington County. I'm on the State Board of Education, but I'm just here speaking for myself. And I would just like to echo what Alexis n said. I appreciate Representative Jack working to clarify language. As society's morals move. I think it's important to clarify things so that children are protected. And this bill only seeks to limit sexually explicit or pornographic material. So, and lewdness in public. So I would ask you to please support the bill. Thank you so much. Thanks for your patience. All right.

Yes, I would. Yes. We have a motion to favorably approve and recommend house first substitute house bill one 14 to the body of the Senate.

Uh, I'll waive. Thank you, Mr. Thank you. Senator Baldry?

Uh, I'll waive. Alright, all in favor

Thank you Mr. Speaker. Those of us who were here two years ago will remember that we passed a bill dealing with lewdness, uh, in front of a minor, Uh, that bill passed. And I'm not proposing and not even willing to reopen those conversations because those of you who were here will remember the very graphic details I was forced to describe to this body. But that bill passed. However, since then, the Commission on Criminal and Juvenile Justice is trying to enforce two pieces of code. One dealing with the lewdness that we passed two years ago, one dealing with pornography, and those are intermixed into one section of code. And so they said it would be easier to separate, easier to deal and to enforce this if they were two separate sections of code. So if you imagine if you're composing, uh, a letter or a document and you have two subjects in one paragraph, you are now separating two subjects into two paragraphs. And that Mr. Speaker is the purpose of this bill. It looks long because there's pieces deleted. It is not long because they're just simply moved. But you have to show the deletion and the insertion in their new respective homes. And with that Mr. Speaker, I would conclude my presentation.

Thank you. I'll waive Summation has been waived.