Sec. 94-248. Display and dissemination of sexually explicit material harmful to minors.
(a) Legislative declaration. Both the United States Supreme Court and state supreme court have held that the government's interest in protecting the well-being of children permits greater latitude in adopting restrictions which limit children's access to sexually explicit materials than can be imposed on adults, and the purpose of this section is to enact reasonable time, place, and manner regulations to further this compelling governmental interest. The dissemination regulations of this section are designed to prevent the sale to minors of materials deemed legally obscene as to minors, but not as to adults. Similarly, the performance provisions of this section are designed to prevent minors from being exposed to sexually explicit performances that are not appropriate for minors. The purpose of the display regulations of this section is to establish a narrowly drawn provision preventing the display to minors of material that is harmful to minors, which provision has only an incidental effect on the right of adults to sell adult materials and an adult's ability to purchase them.
(b) Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:
Harmful to minors means that quality of any material or performance that depicts sexually explicit nudity or sexual activity and that, taken as a whole, has the following characteristics:
1. The average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest of minors;
2. The average adult person applying contemporary community standards would find that the depiction of sexually explicit nudity or sexual activity in the material or performance is patently offensive to prevailing standards in the adult community concerning what is suitable to minors; and
3. The reasonable adult person would find the material or performance lacks serious, literary, artistic, political, or scientific value for minors.
Material means pictures, drawings, video recordings, films, books, magazines, or other depictions, descriptions, or representations of sexual activity or sexually explicit nudity.
Minor means an individual who is less than 18 years old and is not married or judicially emancipated.
Obscene device means a device, including a dildo, vibrator, or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.
Sexual activity means any of the following acts:
1. Masturbation, whether done alone or with another human or an animal.
2. Vaginal, anal, or oral intercourse, whether done with another human or with an animal.
3. Touching, in an act of apparent sexual stimulation or sexual abuse, of the clothed or unclothed genitals, pubic area, or buttocks of another person or the clothed or unclothed breasts of a human female.
4. An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation which is intended to depict apparent sexual stimulation or sexual abuse.
5. Excretory functions.
6. The insertion of any part of a person's body or of any object into another person's anus or vagina, except when done as part of a generally recognized medical procedure.
Sexually explicit nudity means the showing of:
1. Uncovered or less than opaquely covered human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast; or
2. Covered human male genitals in a discernibly turgid state.
(c) Unlawful display to minors.
(1) A person commits the offense of displaying material that is harmful to minors if, having custody, control, or supervision of a commercial establishment and knowing the character or content of the material, he or she displays material that is harmful to minors or an obscene device in any show window or any other window facing upon any street, alley, sidewalk, parking lot, mall common area, or any other similar area to which the general public has access.
(2) It is an affirmative defense to a prosecution under this section that the material or device in question was not within 15 feet of the glass plate constituting the window.
(d) Disseminating harmful material to minors. A person commits the offense of disseminating harmful material to minors if, with or without consideration and knowing the character or content of the material, he or she:
(1) Sells, furnishes, presents, or distributes to a minor material that is harmful to minors;
(2) Allows a minor to review or peruse material that is harmful to minors; or
(3) Sells, furnishes, presents, or distributes to a minor an obscene device.
(e) Exhibiting harmful performances to minors. A person commits the offense of exhibiting a harmful performance to a minor if, with or without consideration and knowing the character or content of the performance, he or she allows a minor to view a live performance that is harmful to minors.
(f) Affirmative defense. Except as provided in subsection (f)(2) of this section, a mistake of age is not a defense to a prosecution under this subsection. It is an affirmative defense to a prosecution under this section that:
(1) The defendant was a parent or legal guardian of the minor.
(2) Before disseminating or exhibiting the harmful material, obscene device, or performance, the defendant requested and received a driver's license, or state identification card indicating that the minor to whom the material, device, or performance was disseminated or exhibited was at least 18 years old, and the defendant reasonably believed the minor was at least 18 years old.
(3) The dissemination or exhibition was made with the prior written and notarized consent of a parent or guardian of the minor.
(g) Severability. If any provision of this section or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions of this section which may be given effect without the invalid provision or application, and to this end, the provisions of this section are declared to be severable. (Code 1979, § 27-85)