Ohio House Bill 249, known as the “Indecent Exposure Modernization Act,” proposes significant changes to sections 2907.09, 2907.39, and 4301.25 of the Revised Code. The bill primarily focuses on redefining and expanding the scope of “indecent exposure” and “adult entertainment,” introducing new criminal offenses related to “adult cabaret performances” in locations where minors may be present, and establishing penalties including potential sex offender registration for certain violations involving minors. It also includes provisions regarding the regulation of adult entertainment establishments and the potential suspension or revocation of liquor permits for violations.
Key Themes and Important Ideas/Facts:
- Expansion of Indecent Exposure Definition: The bill amends section 2907.09, which deals with public indecency. While maintaining the core concept of reckless exposure of “private parts” under circumstances likely to affront others, it replaces “private parts” with “private area, as defined in section 2907.01 of the Revised Code.” This change likely aims to align the definition with a broader statutory definition, though the source does not provide the text of section 2907.01. A key exception is explicitly retained: “unless the person is a woman who is breastfeeding and the private area that is exposed is the woman’s breast.”
- Quote: “Expose the person’s private partsarea, as defined in section 2907.01 of the Revised Code, unless the person is a woman who is breastfeeding and the private area that is exposed is the woman’s breast;” (Page 1, lines 14-17)
- Enhanced Penalties and Tiered Offenses: The bill introduces a tiered system of penalties for violations of the public indecency statute (2907.09), with increased severity for repeat offenders and for offenses committed in the presence of minors. Violations range from a misdemeanor of the fourth degree to a felony of the fifth degree depending on prior convictions and the presence of minors.
- Quote: “Except as otherwise provided in division (C)(2) of this section, a violation of division (A)(1) of this section is a misdemeanor of the fourth degree. If the offender previously has been convicted of or pleaded guilty to one violation of this section…or, if any person who was likely to view and be affronted by the offender’s conduct was a minor, a misdemeanor of the second degree.” (Page 2, lines 33-42)
- Quote: “If the offender previously has been convicted of or pleaded guilty to three or more violations of this section…or, if any person who was likely to view and be affronted by the offender’s conduct was a minor, a felony of the fifth degree.” (Page 3, lines 45-49)
- Creation of “Adult Cabaret Performance” Offense: A significant addition is the creation of a new offense under section 2907.39: “unlawful adult cabaret performance.” This offense targets performances outside of designated “adult cabarets” in locations where minors may be present. The definition of “adult cabaret performance” is broad and includes performers who exhibit a “gender identity that is different from the performer’s or entertainer’s biological sex using clothing, makeup, prosthetic or imitation genitals or breasts, or other physical markers,” if the performance is “harmful to juveniles or obscene” and appeals to a “prurient interest.”
- Quote: “(4)(a) ‘Adult cabaret performance’ means a performance in a location other than an adult cabaret where minors may be present, that is harmful to juveniles or obscene, regardless of whether or not the performance is for consideration, and that features any of the following…Performers or entertainers who exhibit a gender identity that is different from the performer’s or entertainer’s biological sex using clothing, makeup, prosthetic or imitation genitals or breasts, or other physical markers;” (Page 6, lines 144-164)
- Quote: “(b) As used in division (A)(4)(a) of this section, ‘biological sex’ means the biological indication of male and female, including sex chromosomes, naturally occurring sex hormones, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, chosen, or subjective experience of gender.” (Page 7, lines 165-172)
- Regulation of Minors’ Access to Adult Entertainment Establishments: The bill reinforces and modifies existing law (likely from the original 2907.39) regarding prohibiting minors from entering adult entertainment establishments and penalizing minors who use false identification to gain entry. It also includes an affirmative defense for establishments if they took reasonable steps to verify age.
- Quote: “(B)(B)(1) No person knowingly shall allow an individual, including, but not limited to, a patron, customer, or employee, who is under eighteen years of age on the premises of an adult entertainment establishment.” (Page 10, lines 275-278)
- Quote: “(C) No individual who is under eighteen years of age knowingly shall show or give false information concerning the individual’s name or age, or other false identification, for the purpose of gaining entrance to an adult entertainment establishment.” (Page 11, lines 282-286)
- Quote: “(D) A person shall not be found guilty of a violation of division (B)(B)(1) of this section if the person raises as an affirmative defense and if the jury or, in a nonjury trial, the court finds the person has established by a preponderance of the evidence, all of the following:…” (Page 11, lines 287-307)
- Potential Sex Offender Classification: For violations of division (B)(4) of section 2907.09 (exposing private parts to a minor with intent of sexual arousal/gratification or to lure into sexual activity), the bill introduces the possibility of classification as a Tier I sex offender/child-victim offender. This classification becomes mandatory if the offender is ten or more years older than the minor and has a prior conviction under the section.
- Quote: “(D)(1) If either of the following applies, the court may determine at the time of sentencing whether to classify the offender as a tier I sex offender/child-victim offender for a violation of division (B)(4) of this section:…” (Page 4, lines 79-86)
- Quote: “(2) If the offender is convicted of or pleads guilty to a violation of division (B)(4) of this section, is ten or more years older than the other person, and previously has been convicted of or pleaded guilty to any violation of this section, the court shall issue an order at the time of sentencing that classifies the offender as a tier I sex offender/child-victim offender subject to registration…” (Page 4, lines 87-96)
- Impact on Liquor Licenses: The bill amends section 4301.25 to include conviction for “permitting a juvenile on the premises of an adult entertainment establishment” (a violation of the proposed 2907.39(B)(1)) as a cause for suspension or revocation of a liquor permit.
- Quote: “(A) The liquor control commission may suspend or revoke any permit issued under this chapter or Chapter 4303. of the Revised Code for the violation of any of the applicable restrictions of either chapter or of any lawful rule of the commission, for other sufficient cause, and for the following causes: (1) Conviction of the holder or the holder’s agent or employee for violating division (B)(B)(1) of section 2907.39 of the Revised Code…” (Page 13, lines 346-354)
- Definitions of Adult Entertainment Terminology: The bill provides extensive definitions for various types of “adult entertainment establishments,” “specified anatomical areas,” and “specified sexual activity.” These definitions are crucial for understanding the scope of the proposed regulations. Notably, the definition of “adult cabaret performance” and the concept of “biological sex” are new additions.
Implications and Potential Considerations:
- Constitutional Challenges: The broad definitions, particularly the inclusion of performers exhibiting a gender identity different from their biological sex within the definition of “adult cabaret performance” when minors are present, could face legal challenges based on freedom of speech and expression (First Amendment) and equal protection under the law (Fourteenth Amendment).
- Enforcement Challenges: Defining and enforcing the concept of a performance appealing to a “prurient interest” and determining if a performance is “harmful to juveniles or obscene” can be subjective and lead to inconsistencies in enforcement.
- Impact on LGBTQ+ Community: The explicit inclusion of performers exhibiting a gender identity different from their biological sex in the definition of “adult cabaret performance” raises concerns about potential targeting and discrimination against transgender and non-binary performers.
- Economic Impact: The stricter regulations on adult entertainment establishments and the potential for liquor license revocation could have economic consequences for businesses in this sector.
- Effectiveness as a Modernization Act: While titled the “Indecent Exposure Modernization Act,” the bill appears to significantly expand restrictions and introduce new criminal offenses, rather than simply updating existing language.
Further Information Needed:
- The definition of “private area” as referenced in section 2907.01 of the Revised Code is essential for a complete understanding of the proposed changes to the indecent exposure statute.
- The context and history of the existing statutes being amended would provide valuable background for understanding the motivations and potential effects of these changes.
Conclusion:
Ohio House Bill 249 proposes substantial changes to indecent exposure laws and the regulation of adult entertainment. The bill introduces new criminal offenses, enhances penalties, and expands the scope of activities deemed unlawful, particularly concerning minors. The inclusion of provisions related to performers exhibiting a gender identity different from their biological sex in the context of “adult cabaret performance” is a notable and potentially controversial aspect of the bill. Its passage would likely lead to significant legal and social implications in Ohio.