Sec. 62-41Distribution of obscene materials

(a) A person commits the offense of distributing obscene materials when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature of the materials, or offers to do so, or possesses such material with the intent to do so. The term "knowing" shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter; and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material; however, the character and reputation of the individual charged with an offense under this law and, if a commercial dissemination of obscene material is involved, the character and reputation of the business establishment involved may be placed in evidence by the defendant on the question of intent to violate this section. Undeveloped photographs, molds, printing plates and the like shall be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it.

(b) Material is obscene if:

(1) To the average person, applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion;

(2) The material taken as a whole lacks serious literary, artistic, political or scientific value; and

(3) The material depicts or describes, in a patently offensive way, sexual conduct specifically defined in this subsection (b)(3):

a. Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated;

b. Acts of masturbation;

c. Acts involving excretory functions or lewd exhibition of the genitals;

d. Acts of bestiality or the fondling of sex organs of animals; or

e. Sexual acts of flagellation, torture or other violence indicating a sadomasochistic sexual relationship.

(c) Any device designed or marketed as useful primarily for the simulation of human genital organs is obscene material under this section.

(d) Material not otherwise obscene may be obscene under this section if the distribution of the material, the offer to do so, or the possession with the intent to do so is a commercial exploitation of erotica solely for the sake of their prurient appeal.

(e) It is an affirmative defense under this section that dissemination of the material was restricted to:

(1) A person associated with an institution of higher learning, either as a member of the faculty or a matriculated student, teaching or pursuing a course of study related to such material; or

(2) A person whose receipt of such material was authorized in writing by a licensed medical practitioner or psychiatrist.

(f) Any materials declared to be obscene by this section and advertisements for such materials are declared to be contraband.

(g) The use of any premises in violation of any of the provisions of this section shall constitute a public nuisance.

History: (Ord. No. 86-12-002, 4-3-1986)