(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.
(1) 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.
(2) MATERIAL, as used in this chapter, means any writing, picture, record, or other representation or embodiment.
(3) DISTRIBUTE means to transfer possession of whether with or without consideration.
(4) 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 especially 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.
(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 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 or her 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.
(4) 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 or her employees, or agents as where the order or request for 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 or she was not under the age of 18 years and that the purchaser falsely stated that he or she was not under the age of 18 years.
(5) 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 or she 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 states, either orally or in writing, that he or she 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 or her 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.
(Prior Code, § 27-8-2) Penalty, see § 10.99