Idaho Senate adds two more bills on ‘exhibitions’

BOISE — The Senate State Affairs Committee on Thursday introduced two more bills that require “sexual exhibitions” to be restricted from minors. Sponsors and other lawmakers said the bills will not move forward this session, as it is in its final days.

The House passed similar legislation, HB 265, in what became known as the “drag show” bill, as previously reported. HB 265, first drafted by the Idaho Family Policy Center, was created in response to drag shows in Boise and Coeur d’Alene, according to a press release from the policy center. Drag performers testified against the bill, saying it made them feel targeted and stigmatized their performances.

Sen. Jim Guthrie, R-McCammon, said HB 265 would not have a hearing because the language in it did not have all three pieces of the Miller test, a legal standard for determining obscenity, and he thought it was broad enough it would potentially affect most performing arts.

Guthrie said he worked with Sen. Ben Toews, R-Coeur d’Alene, on alternative legislation but couldn’t come to a compromise on one bill, so each senator introduced their legislation to get their ideas to the public for further discussion.

Their bills mainly differ in the definitions of sexual conduct and the penalties included.

Guthrie’s proposal adds a section in code that any person or institution that participates in or holds a sexual exhibition in any public place or exposed to public view must “take reasonable steps to restrict access of minors.”

These restrictions would apply if the exhibition includes live persons engaged in sexual conduct, the average person “applying contemporary community standards” would find that the performance as a whole “appeals to prurient interest,” and that it lacks “serious literary, artistic, political, or scientific value.”

It defines sexual conduct as real or simulated acts “of masturbation, sexual intercourse, or physical contact with a person’s unclothed genitals or public area.”

Unlike the previous legislation, Guthrie’s bill does not include a civil cause of action, which he said he felt “encouraged misuse of our legal system.”

Guthrie’s legislation would allow the attorney general to take action against a person or institution in violation for a civil penalty of up to $2,500 per violation, not to exceed $10,000 total.

It includes affirmative defenses for if there was reasonable evidence given to believe the minor was 18 or older, if a parent or supervising adult accompanied the minor to the event if it required a ticket, or if there was a prominent notice that the performance included sexually explicit materials not suitable for minors.

The bill would also prohibit the use of public facilities or assets for sexual exhibitions.

Toews’ proposal would allow a minor or parent of a minor who is exposed to a sexual exhibition to take civil action for $5,000 in damages and “any other relief available by law.”

It also allows for action to be taken by the attorney general or a prosecuting attorney to stop the violation and to recover up to $5,000 per violation, not to exceed $20,000 in total.

It would not be an affirmative defense if the minor was accompanied by their parent or legal guardian.

The legislation includes the same definition of sexual conduct as Guthrie’s, with the additions of “sexually explicit descriptions” of these acts” or “sexually provocative dances or gestures performed with accessories that exaggerate male or female primary or secondary sexual characteristics.”

In testimony for previous legislation, the language around these accessories was criticized as targeting drag performers, and some wondered if it would include items such as padded bras.

The bill also would prohibit the use of public facilities and assets for sexual exhibitions.

Guido covers Idaho politics for the Lewiston Tribune, Moscow-Pullman Daily News and Idaho Press of Nampa. She may be contacted at lguido@idahopress.com and can be found on Twitter @EyeOnBoiseGuido.