(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 misdemeanor.
(B) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
DISTRIBUTE. To transfer possession of, whether with or without consideration.
HARMFUL. 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 of embodiment.
(C) Interpretation of evidence.
(1) 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 probably recipient group.
(2) 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, 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 communication 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 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 was not under the age of 18 years of age:
Notice: It is harmful for any person under the age of 18 years 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 of 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, § 13-304) Penalty, see § 10.99