A. Obscenity:
1. Elements Of The Offense: It shall be unlawful for a person when, with knowledge of the nature or content thereof, or recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof, such person:
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 an obscene exhibition of his body; 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 to be obscene, whether or not it is obscene.
2. Definition: Any material or performance is obscene if:
a. The average person, applying contemporary adult community standards, would find that, taken as a whole, it appeals to the prurient interest; and
b. The average person, applying contemporary adult community standards, would find that it depicts or describes, in a patently offensive way, ultimate sexual acts or sadomasochistic sexual acts, whether normal or perverted, actual or simulated, or masturbation, excretory functions or lewd exhibition of the genitals; and
c. Taken as a whole, it lacks serious literary, artistic, political or scientific value.
3. Interpretation Of Evidence:
a. 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.
b. Where circumstances of production, presentation, sale, dissemination, distribution or publicity indicate that material is being commercially exploited for the sake of its prurient appeal, such evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter is lacking in serious literary, artistic, political or scientific value.
c. In any prosecution for an offense under this section, evidence shall be admissible to show:
(1) The character of the audience for which the material was designed or to which it was directed;
(2) 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;
(3) The artistic, literary, scientific, educational or other merits of the material or absence thereof;
(4) The degree, if any, of public acceptance of the material in this state;
(5) Appeal to prurient interest, or absence thereof, in advertising or other promotion of the material;
(6) Purpose of the author, creator, publisher or disseminator.
4. Prima Facie Evidence: The creation, purchase, procurement or possession of a mold, engraved plate or other embodiment of obscenity specially adapted for reproducing multiple copies, or the possession of more than three (3) copies of obscene material, shall be prima facie evidence of an intent to disseminate.
5. Affirmative Defenses: It shall be an affirmative defense to obscenity that the dissemination:
a. Was not for gain and was made to personal associates other than children under eighteen (18) years of age.
b. Was to institutions or individuals having scientific or other special justification for possession of such material.
B. Harmful Material:
1. Elements Of The Offense: It shall be unlawful for a person who, with knowledge that a person is a child; that is, a child 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 such child. Such material includes, but is not limited to, the depiction of the following:
a. "Nudity", meaning the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the areola, or the depiction of covered male genitals in a discernibly turgid state.
b. "Sadomasochistic abuse", meaning flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
c. "Sexual conduct", meaning acts of masturbation, excretory functions, homosexuality, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast, normal or perverted, actual or simulated.
d. "Sexual excitement", meaning the condition of human male or female genitals when in a state of sexual stimulation or arousal.
2. Definitions:
DISTRIBUTE: To transfer possession of, whether with or without consideration.
HARMFUL MATERIAL: 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.
KNOWINGLY: Having knowledge of the contents of the subject matter, or recklessly failing to exercise reasonable inspection which would have disclosed the contents thereof.
MATERIAL: Any writing, picture, record or other representation or embodiment.
3. Interpretation Of Evidence:
a. 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.
b. 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.
4. Affirmative Defenses:
a. 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.
b. Nothing in this section shall prohibit any parent from distributing to his child any harmful material.
5. Child Falsifying Age: It shall be unlawful for any person under eighteen (18) years of age to falsely state, either orally or in writing, that such person 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. (Ord. O-1-89, 4-10-1989)