§712-1215  Promoting pornography for minors. 
(1)  A person commits the offense of promoting pornography for minors if:



(a) Knowing its character and content, the person
disseminates to a minor material which is pornographic for minors; or



(b) Knowing the character and content of a motion
picture film or other performance which, in whole or in part, is pornographic
for minors, the person:



(i)  Exhibits such motion picture film or other
performance to a minor; or



(ii)  Sells to a minor an admission ticket or
pass to premises where there is exhibited or to be exhibited such motion
picture film or other performance; or



(iii)  Admits a minor to premises where there is
exhibited or to be exhibited such motion picture film or other performance.



(2)  Subsection (1) does not apply to a parent,
guardian, or other person in loco parentis to the minor or to a sibling of the
minor, or to a person who commits any act specified therein in the person's
capacity and within the scope of the person's employment as a member of the
staff of any public library.



(3)  Promoting pornography for minors is a
class C felony. [L 1972, c 9, pt of §1; am L 1974, c 190, §1; am L 1988, c 283,
§1; gen ch 1993; am L 2000, c 21, §2]



 



COMMENTARY ON §712-1215



 



  This section has no direct counterpart in previous Hawaii
law.  It is derived primarily from New York Revised Penal Law §235.21 and its
immediate predecessor, New York Penal Law §484(h)--(i).  It is based on the
State of Hawaii's role as parens patriae, and the duties and powers which
attach to that role.  One of the most dramatic recognitions of the state's role
as parens patriae is found in the United States Supreme Court decision in
Prince v. Massachussetts.[1]



The state's
authority over children's activities is broader than over like actions of
adults....  A democratic society rests, for its continuance, upon the healthy,
well- rounded growth of young people into full maturity as citizens, with all
that implies.  It may secure this against impeding restraints and dangers within
a broad range of selection....  It is too late now to doubt that legislation
appropriately designed to reach such evils is within the state's police
power....[2]



  Prince v. Massachusetts affirmed the right of the state to
overrule a parental prerogative for the welfare of the child.  There is
abundant authority, not only in the statutory law of Hawaii, but also in case
law of sister states and most recently, in a decision by the United States
Supreme Court, which supports the right of the state to preserve and augment
the parental prerogative.



  Under the present Hawaii law alcoholic beverages may not be
sold to a person under 18 years of age,[3] cigarettes may not be sold to a
person under 15 years of age,[4] and counties are given the option of establishing
curfews for minors.[5]  These laws attempt to safeguard the prerogative of the
parent to decide whether his or her child of a specific age will imbibe, smoke,
or stay out past a certain hour.



  In regard to the regulation of dissemination of pornographic
material to children, the case law is quite clear.  In sustaining the state's
power to enact such regulations, the New York Court of Appeals stated in
Bookcase, Inc. v. Broderick,[6]



... Material
which is protected for distribution to adults is not necessarily
constitutionally protected from restriction upon its dissemination to
children....  Because of the State's exigent interest in preventing
distribution to children of objectionable material, it can exercise its power
to protect the health, safety, welfare and morals of its community by barring
the distribution to children of books recognized to be suitable for adults.[7]



An even more cogent recognition of the state's right, and even
obligation, to reinforce the parental prerogative is illustrated by Judge
Fuld's concurring opinion, People v. Kahan,[8] in which he said:



While the
supervision of children's reading may best be left to their parents, the
knowledge that parental control or guidance cannot always be provided and
society's transcendant interest in protecting the welfare of children justify
reasonable regulation of the sale of material to them.[9]



  If there were any doubt remaining prior to 1968 of the
constitutional validity of prohibiting the dissemination of pornography to
minors as a specific class, that doubt was laid to rest by the United States
Supreme Court decision in Ginsberg v. New York,[10] handed down April 22,
1968.  In that decision the Supreme Court upheld the constitutional validity of
New York Penal Law 484(h),[11] a law substantially similar with the proposed
section.



  Two aspects of §712-1215 should be noted at the outset.



  First, this provision is not limited to dissemination for
monetary gain.  The same approach was taken in Michigan.[12]  The reason behind
this was a strong feeling that the non-commercial distribution of pornographic
material to minors often presented a serious problem, that only rarely did it
involve parents or guardians, and that a criminal prosecution in these rare
cases was unlikely.[13]  To insure that §712-1215 is not employed against
parents, guardians, others in loco parentis to the minor, or siblings of the
minor, subsection (2) has been provided.  The United States Supreme Court has
clearly implied in Ginsberg v. New York that a prohibition not limited to
commercial distribution, which would put parents in jeopardy of criminal
sanctions, would be invalidated.  The Court pointedly noted that "the
prohibition against sales to minors does not bar parents who so desire from
purchasing the magazines for their children."[14]  In light of this strong
implication an adoption of the Michigan approach demands explicit exception of
parents, guardians, etc., from the prohibitions of the law.



  Secondly, the Code makes 16 years the appropriate age limit
for minors.  The choice reflects the desire of the state in its role as parens
patriae to keep control over the reading matter of minors as long as is
realistically feasible.  The age limit is not inconsistent with the low age
limits under Chapter 707; rather in that chapter, the rationale behind the
choice of ages discussed in the commentary to 707-731 to 735 is primarily and
necessarily the physical maturity of the female.



  Section 712-1215 contains two prohibitions, each with its own
specific emphasis.  Subsection (1)(a) prohibits the dissemination to a minor of
material which is pornographic for minors.  The nature of the material falling
within this prohibition is described in the definitions of "pornographic
for minors" and "material" [§712-1210].  "Material"
includes not only printed matter, but also records, tapes, still photographs,
motion pictures, drawings, or sculptures.  Such material is
"pornographic" if it is primarily devoted to explicit and detailed
narrative accounts of specified sexual acts between parties of the same or
different sexes or contains a visual representation of naked genitalia or
depicting specified sexual acts.  The limiting clauses (i) and (ii) in the
definition of "pornographic for minors" would exclude sex education
texts, scientific texts, and most works of art or literature that are not
presented in such a manner as to predominantly appeal to a minor's prurient
interest or that have a redeeming social importance for minors.  Obviously
certain marriage manuals would not fit in this category, nor would some works
of art or works of literature.  By including these two specific requirements
the definition clearly identifies itself with former New York Penal Law §484(h)
which was validated by the United States Supreme Court in Ginsberg v. New
York.  Again, it should be pointed out that there is an added safety valve in
§712-1215; nothing prevents a parent from buying material for his or her child,
regardless of what that material depicts or narrates.



  Subsection (1)(a) would also operate against the merchant who
allows a minor to page through pornographic material on display.  The word
"dissemination" is defined, in §712-1210, to include an "offer
to sell" and "exhibit."



  Subsection (1)(b) prohibits exhibiting a pornographic motion
picture film or other performance to a minor.  It also prohibits selling a
ticket to a minor for admission to such a movie or other performance or the
actual admitting of a minor to such a movie or other performance.  Thus the
prohibition may reach not only the owner of a movie theater or burlesque house
but also the person running the ticket booth as well as the usher who accepts
the ticket and admits the minor.



  Both subsections (1)(a) and (1)(b) require knowledge of the
character and content of the material disseminated or the movie or other
performance exhibited.  The United States Supreme Court upheld similar
knowledge requirements in Smith v. California.[15]  Such knowledge requirements
were reaffirmed most recently in the Supreme Court's Ginsberg decision.



  Subsection (2) makes the promotion of pornographic material
for minors a misdemeanor.  A fine of $1,000 is available in addition to a
one-year term of imprisonment.  To the extent that the severity of a penalty
has deterrent value, the misdemeanor sanction should suffice.



 



SUPPLEMENTAL COMMENTARY ON §712-1215



 



  Act 190, Session Laws 1974, amended subsection (2) by adding
the words "or to a person who commits any act specified therein in his
capacity as a member of the staff of any public library."  The change was
"to make clear that a person who, in his or her capacity as a member of a
staff of a public library, disseminates to a minor, material which is
subsequently held to be 'pornographic for minors' is not guilty of a penal
offense."  Senate Standing Committee Report No. 1072-74.



  Act 283, Session Laws 1988, increased the penalty for
promoting pornography to minors from a misdemeanor to a class C felony.  The
legislature found that it is important to keep pornography out of the hands of
children, and increasing the penalty to the felony level should give
pornography dealers the incentive to inquire as to the age of their customers
and refuse to sell to those who are minors.  Senate Standing Committee Report
No. 1763, House Standing Committee Report No. 1596-88.



  Act 21, Session Laws 2000, amended subsection (2) by
narrowing the promoting pornography for minors exemption for public library
staff to only acts committed by a staff member within the scope of the staff
member's employment.  The legislature found that there was no justification in
continuing to provide a public library exemption beyond incidents where the
staff member was acting within the scope of the staff member's employment.  The
legislature also found that this amendment struck a balance between providing
minors with meaningful access to library materials and protecting them from
exposure to pornographic materials while protecting responsible library staff
members from threats of litigation.  House Standing Committee Report No. 926-00,
House Standing Committee Report No. 1304-00, Senate Standing Committee Report
No. 2672.



 



__________



§712-1215 Commentary:



 



1.  321 U.S. 158 (1944).



 



2.  Id. at 168-69.



 



3.  H.R.S. §281-4.



 



4.  Id. §445-212.



 



5.  Id. §577-21.



 



6.  18 N.Y.2d 71, 218 N.E.2d 668 (1966).



 



7.  Id. at 75, 218 N.E.2d at 671.



 



8.  15 N.Y.2d 311, 206 N.E.2d 333 (1965).



 



9.  Id. at 312, 206 N.E.2d 334.



 



10. 390 U.S. 629 (1968).



 



11. Now N.Y.R.P.L. §235.21.



 



12. Prop. Mich. Rev. Cr. Code §6310.



 



13. Id.



 



14. Ginsberg v. New York, supra.



 



15. 361 U.S. 147 (1959).