(A) Elements Of The Offense: A person who with knowledge that a person is a child, that is a person under eighteen (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 misdemeanor.
(B) Definitions:
DISTRIBUTE: To transfer possession of, whether with or without consideration.
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.
MATERIAL: (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 section, means any writing, picture, record or other representation or embodiment.
(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) Sentence: The offense of harmful material is a misdemeanor. A person who is convicted shall be punished by a fine of not less than one hundred dollars ($100.00) or more than five hundred dollars ($500.00). A second or subsequent offense is punishable by a fine of not less than three hundred dollars ($300.00) nor more than five hundred dollars ($500.00).
(E) Affirmative Defenses:
1. Nothing in this section shall prohibit any public library or any library operated by an accredited institution of higher education from circulating harmful material to any person under eighteen (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 or educational purposes.
2. Nothing in this section shall prohibit any parent from distributing to his child any harmful material.
3. 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: 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.
(F) Child Falsifying Age: Any person under eighteen (18) years of age who falsely states, either orally or in writing, that he is not under the age of eighteen (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. A person who is convicted shall be punished by a fine of not less than twenty five dollars ($25.00) or more than five hundred dollars ($500.00). (Ord. 905, 12-1-1981)