Article VIII: Obscenity

27-8-1 OBSCENITY.
(A) Elements of the Offense. A person commits obscenity when, with the knowledge of the nature of content thereof or recklessly failing to exercise reasonable inspection which would have disclosed the nature of content thereof; he:
a. Sells, delivers or provides, or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or
b. Presents or directs an obscene play, dance, or other performance or participates directly in that portion thereof which makes it obscene; or
c. Publishes, exhibits or otherwise makes available anything obscene; or
d. Performs an obscene act or otherwise presents and obscene exhibition of his body for gain; or
e. Creates, buys, procures or possesses obscene matter or material with intent to disseminate it in violation of this section, or of the penal laws or regulations of any other jurisdiction; or
f. Advertises or otherwise promotes the sale of material represented or held out by him to be obscene, whether or not it is obscene.
(B) Obscene Defined. A thing is obscene if, considered as a whole. its predominant appeal is t prurient interest; that is, shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. A thing is obscene even though the obscenity is latent, as in the case of undeveloped photographs.
(C) Interpretation of Evidence. Obscenity shall be judged with reference to ordinary adults except that it shall be judged with reference to children or other specially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience. In any prosecution for an offense under this section, evidence shall be admissible to show:
a. The character of the audience for which the material was designed or to which it was directed;
b. What the predominant appeal of the material would be for ordinary adults or a special audience, and what effect, if any it would probably have on the behavior of such people;
c. The artistic, literary, scientific, educational or other merits of the material, or the absence thereof;
d. The degree, if any, of public acceptance of the material in this State;
e. Appeal to prurient interest, or absence thereof, in advertising or other promotion of the material;
f. Purpose of the author, creator, publisher or disseminator.
(D) Prima Facie Evidence. The creation, purchase, procurement or possession of a mold, engraved plat or other embodiment of obscenity, specially adapted for reproducing multiple copies, or the possession of more than three copies of obscene material shall be prima facie evidence of an intent to disseminate.

27-8-2 HARMFUL MATERIAL.
(A) Elements of the Offense. A person who, with knowledge that a person is a child; that is, a person under 18 years of age, or who fails to exercise reasonable care in ascertaining the true age of a child, knowingly distributes to, or sends, or causes to be sent to or exhibits to or offers to distribute or exhibit any harmful material to a child is guilty of a violation of this Code.
(B) Definitions.
a. Material is harmful if, to the average person applying contemporary standards, its predominant appeal, taken as a whole, is to prurient interest; that is, a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is material, the redeeming social importance of which is substantially less than its prurient appeal.
b. “Material” as used in this Code means any writing, picture, record or other representation or embodiment.
c. “Distribute” means to transfer possession of whether with or without consideration.
d. “Knowingly” as used in this section means having knowledge of the contents of the subject matter, or recklessly failing to exercise reasonable inspection which would have disclosed the contents thereof.
(C) Interpretation of Evidence. The predominant appeal to prurient interest of the material shall be judged with reference to average children of the same general age of the child to whom such material was offered, distributed, sent or exhibited, unless it appears from the nature of the matter or the circumstances of its dissemination, distribution or exhibition that it is designed for specially susceptible groups, in which case, the predominant appeal of the material shall be judged with reference to its intended or probable recipient group. In prosecutions under this section where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate the material is being commercially exploited for the sake of its prurient appeal, such evidence is probative with respect to the nature of the material and can justify the conclusion that the redeeming social importance of the material is, in fact, substantially less than its prurient appeal.
(D) Affirmative Defenses.
a. Nothing in this section shall prohibit any public library or any library operated by an accredited institution of higher education form circulating harmful material to any person under 18 years of age, provided such circulation is in aid of a legitimate scientific or educational purpose, and it shall be an affirmative defense in any prosecution for a violation of this section that the act charged was committed in aid of legitimate scientific ore educational purposes.
b. Nothing in this section shall prohibit any parent from distributing to his child any harmful material.
c. Proof that the defendant demanded, was shown and acted in reliance upon any of the following documents as proof of the age of a child shall be a defense to any criminal prosecution under this section:
i. A document issued by the federal government, or any state, county or municipal government, or subdivision or agency thereof, including, but not limited to a motor vehicle operator’s license, a registration certificate issued under the Federal Selective Service Act or an identification card issued to a member of the armed forces.
d. In the event an advertisement of harmful material as defined in this section culminates in the sale or distribution of such harmful material to a child, under circumstances where there was no personal confrontation of the child by the defendant, his employees or agents as where the order or request fro such harmful material was transmitted by mail, telephone, or similar means of communications and delivery of such harmful material to the child was by mail, freight, or similar means of transport, it shall be a defense in any prosecution for a violation of this section that the advertisement contained the following statement or a statement substantially similar thereto, and that the defendant required the purchaser to certify that he was not under the age of 18 years and that the purchaser falsely stated that he was not under the age of 18 years.
e. “NOTICE: It is unlawful for any person under 18 years of age to purchase the matter herein advertised. Any person under 18 years of age who falsely states that he is not under 18 years of age for the purpose of obtaining the material advertised herein is guilty of a misdemeanor.

(E) Child Falsifying Age. Any person under 18 years of age who falsely state, either orally or in writing that he is not under the age of 18 years, or who presents or offers to any person any evidence of age and identity which is false or not actually his own for the purpose of ordering, obtaining, viewing or otherwise procuring or attempting to procure or view any harmful material is guilty of a misdemeanor.

27-8-3 TIE-IN SALES OF OBSCENE PUBLICATIONS TO DISTRIBUTORS. Any person, firm or corporation, or any agent, officer or employee thereof engaged in the business of distributing books, magazines, periodicals, comic books or other publications to retail dealers, who shall refuse to furnish to any retail dealer such quantity of books, magazines, periodicals, comic books or other publications as such retail dealer normally sells because the retail dealer refuses to sell, or offer for sale, any books, magazines, periodicals, comic books or other publications which are obscene, lewd, lascivious, filthy or indecent is guilty of an offense. Each publication sold or delivered in violation of this chapter shall constitute a separate offense.

Last Update: October 04, 2018