PRINTER'S NO. 1301
No. 1141 Session of 1989
INTRODUCED BY CALTAGIRONE, BIRMELIN, MOEHLMANN, ADOLPH, ALLEN, ANGSTADT, ARGALL, BARLEY, BATTISTO, BILLOW, BLACK, BOYES, BRANDT, BROUJOS, BUNT, BURD, BUSH, CARLSON, CAPPABIANCA, CESSAR, CHADWICK, CIVERA, CLYMER, COLAIZZO, COLE, DAVIES, DOMBROWSKI, DeLUCA, DEMPSEY, DIETTERICK, DISTLER, DONATUCCI, FARGO, FARMER, FEE, FLEAGLE, FLICK, FOSTER, FOX, FREIND, GALLEN, GAMBLE, GEIST, GRUITZA, GRUPPO, HALUSKA, HASAY, HAYES, HERSHEY, HESS, JACKSON, JADLOWIEC, JOHNSON, KASUNIC, KONDRICH, KOSINSKI, LaGROTTA, LANGTRY, LEH, LLOYD, LUCYK, MAIALE, MARKOSEK, MAYERNIK, McNALLY, MELIO, MERRY, MILLER, MORRIS, MRKONIC, NAHILL, NAILOR, NOYE, O'BRIEN, OLASZ, PERZEL, PETRONE, PHILLIPS, PISTELLA, PITTS, PRESSMANN, RAYMOND, RITTER, ROBBINS, ROBINSON, RUDY, RYAN, RYBAK, SALOOM, SAURMAN, SCHEETZ, SCHULER, SEMMEL, S. H. SMITH, D. W. SNYDER, STEIGHNER, STRITTMATTER, E. Z. TAYLOR, TRELLO, VAN HORNE, VEON, VROON, WASS, WESTON, WOGAN, WOZNIAK AND J. L. WRIGHT, APRIL 11, 1989
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 11, 1989
AN ACT 1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania 2 Consolidated Statutes, further providing for obscene and 3 other sexual materials; and providing for obscene 4 performances. 5 The General Assembly of the Commonwealth of Pennsylvania 6 hereby enacts as follows: 7 Section 1. Section 5903 of Title 18 of the Pennsylvania 8 Consolidated Statutes is amended to read: 9 § 5903. Obscene and other sexual materials and performances. 10 (a) Offenses defined.--No person, knowing the obscene 11 character of the materials or performances involved, shall:
1 (1) display or cause or permit the display of any 2 explicit sexual materials as defined in subsection (c) in or 3 on any window, showcase, newsstand, display rack, billboard, 4 display board, viewing screen, motion picture screen, marquee 5 or similar place in such manner that the display is visible 6 from any public street, highway, sidewalk, transportation 7 facility or other public thoroughfare, or in any business or 8 commercial establishment where minors, as a part of the 9 general public or otherwise, are or will probably be exposed 10 to view all or any part of such materials; 11 (2) sell, lend, distribute, exhibit, give away or show 12 any obscene materials to any person 17 years of age or older 13 or offer to sell, lend, distribute, exhibit or give away or 14 show, or have in his possession with intent to sell, lend, 15 distribute, exhibit or give away or show any obscene 16 materials to any person 17 years of age or older, or 17 knowingly advertise any obscene materials in any manner; 18 (3) design, copy, draw, photograph, print, utter, 19 publish or in any manner manufacture or prepare any obscene 20 materials; 21 (4) write, print, publish, utter or cause to be written, 22 printed, published or uttered any advertisement or notice of 23 any kind giving information, directly or indirectly, stating 24 or purporting to state where, how, from whom, or by what 25 means any obscene materials can be purchased, obtained or 26 had; [or] 27 (5) produce, present or direct any obscene performance 28 or participate in a portion thereof that is obscene or that 29 contributes to its obscenity; or 30 [(5)] (6) hire, employ, use or permit any minor child to 19890H1141B1301 - 2 -
1 do or assist in doing any act or thing mentioned in this 2 subsection. 3 (b) Definitions.--As used in this section the following 4 words and phrases shall have the meanings given to them in this 5 subsection: 6 "Community." For the purpose of applying the "contemporary 7 community standards" in this section, community means the State. 8 "Knowing." As used in subsection (a), knowing means having 9 general knowledge of, or reason to know or a belief or ground 10 for belief which warrants further inspection or inquiry of, the 11 character and content of any material or performance described 12 therein which is reasonably susceptible of examination by the 13 defendant. 14 "[Obscene materials] Material." Any literature, including 15 any book, magazine, pamphlet, newspaper, storypaper, comic book 16 or writing[, and]; any figure, visual representation, or image 17 including any drawing, photograph, picture, video tape or motion 18 picture[; if:]. 19 "Nude." Means showing the human male or female genitals, 20 pubic area, or buttocks with less than a fully opaque covering, 21 or showing the female breast with less than a fully opaque 22 covering of any portion thereof below the top of the nipple. 23 "Obscene." Any material or performance, if: 24 (1) the average person applying contemporary community 25 standards would find that the subject matter taken as a whole 26 appeals to the prurient interest; 27 (2) the subject matter depicts or describes in a 28 patently offensive way, sexual conduct of a type described in 29 this section; and 30 (3) the subject matter, taken as a whole, lacks serious 19890H1141B1301 - 3 -
1 literary, artistic, political, educational or scientific 2 value. 3 "Performance." Means any play, dance or other live 4 exhibition performed before an audience. 5 "Sadomasochistic abuse." Means, in a sexual context, 6 flagellation or torture by or upon a person who is nude or clad 7 in undergarments, a mask or in a bizarre costume, or the 8 condition of being fettered, bound or otherwise physically 9 restrained on the part of one who is nude or so clothed. 10 "Sexual conduct." Patently offensive representations or 11 descriptions of ultimate sexual acts, normal or perverted, 12 actual or simulated, including sexual intercourse, anal or oral 13 sodomy and sexual bestiality; and patently offensive 14 representations or descriptions of masturbation, excretory 15 functions, sadomasochistic abuse and lewd exhibition of the 16 genitals. 17 "Transportation facility." Any conveyance, premises or place 18 used for or in connection with public passenger transportation, 19 whether by air, rail, motor vehicle or any other method, 20 including aircraft, watercraft, railroad cars, buses, and air, 21 boat, railroad and bus terminals and stations. 22 (c) Dissemination to minors.--No person shall knowingly 23 disseminate by sale, loan or otherwise explicit sexual materials 24 to a minor. "Explicit sexual materials," as used in this 25 subsection, means materials which are obscene or: 26 (1) any picture, photograph, drawing, sculpture, motion 27 picture film, video tape or similar visual representation or 28 image of a person or portion of the human body which depicts 29 nudity, sexual conduct, or sadomasochistic abuse and which is 30 harmful to minors; or 19890H1141B1301 - 4 -
1 (2) any book, pamphlet, magazine, printed matter however 2 reproduced, or sound recording which contains any matter 3 enumerated in paragraph (1), or explicit and detailed verbal 4 descriptions or narrative accounts of sexual excitement, 5 sexual conduct, or sadomasochistic abuse and which, taken as 6 a whole, is harmful to minors. 7 (d) Admitting minor to show.--It shall be unlawful for any 8 person knowingly to exhibit for monetary consideration to a 9 minor or knowingly to sell to a minor an admission ticket or 10 pass or knowingly to admit a minor for a monetary consideration 11 to premises whereon there is exhibited, a motion picture show or 12 other presentation or performance which, in whole or in part, 13 depicts nudity, sexual conduct, or sadomasochistic abuse and 14 which is harmful to minors, except that the foregoing shall not 15 apply to any minor accompanied by his parent. 16 (e) Definitions.--As used in subsections (c) and (d) of this 17 section: 18 (1) "Minor" means any person under the age of 17 years. 19 (2) "Nudity" means the showing of the human male or 20 female genitals, pubic area, or buttocks with less than a 21 fully opaque covering, or the showing of the female breast 22 with less than a fully opaque covering of any portion thereof 23 below the top of the nipple, or the depiction of covered male 24 genitals in a discernibly turgid state. 25 (3) "Sexual conduct" means acts of masturbation, 26 homosexuality, sexual intercourse, sexual bestiality, or 27 physical contact with a person's clothed or unclothed 28 genitals, pubic area, buttocks or, if such person be a 29 female, breast. 30 (4) "Sexual excitement" means the condition of human 19890H1141B1301 - 5 -
1 male or female genitals when in a state of sexual stimulation 2 or arousal. 3 (5) "Sadomasochistic abuse" means flagellation or 4 torture by or upon a person clad in undergarments, a mask or 5 bizarre costume, or the condition of being fettered, bound or 6 otherwise physically restrained on the part of one so 7 clothed. 8 (6) "Harmful to minors" means that quality of any 9 description or representation, in whatever form, of nudity, 10 sexual conduct, sexual excitement, or sadomasochistic abuse, 11 when it: 12 (i) predominantly appeals to the prurient, shameful, 13 or morbid interest of minors; and 14 (ii) is patently offensive to prevailing standards 15 in the adult community as a whole with respect to what is 16 suitable material for minors; and 17 (iii) [is utterly without redeeming social 18 importance for minors] taken as a whole, lacks serious 19 literary, artistic, political, educational and scientific 20 value for minors. 21 (7) "Knowingly" means having general knowledge of, or 22 reason to know, or a belief or ground for belief which 23 warrants further inspection or inquiry of both: 24 (i) the character and content of any material or 25 performance described herein which is reasonably 26 susceptible of examination by the defendant; and 27 (ii) the age of the minor: Provided, however, That 28 an honest mistake shall constitute an excuse from 29 liability hereunder if the defendant made a reasonable 30 bona fide attempt to ascertain the true age of such 19890H1141B1301 - 6 -
1 minor. 2 (f) Requiring sale as condition of business dealings.--No 3 person shall knowingly require any distributor or retail seller 4 as a condition to sale or delivery for resale or consignment of 5 any literature, book, magazine, pamphlet, newspaper, storypaper, 6 paper, comic book, writing, drawing, photograph, videotape, 7 figure or image, or any written or printed matter, or any 8 article or instrument to purchase or take by consignment for 9 purposes of sale, resale or distribution any obscene literature, 10 book, magazine, pamphlet, newspaper, storypaper, paper, comic 11 book, writing, drawing, photograph, videotape, figure or image, 12 or any written or printed matter of an obscene nature or any 13 article or instrument of an obscene nature. 14 (g) Injunction.--The attorney for the Commonwealth may 15 institute proceedings in equity in the court of common pleas of 16 the county in which any person violates or clearly is about to 17 violate this section for the purpose of enjoining such 18 violation. The court shall issue an injunction only after 19 written notice and hearing and only against the defendant to the 20 action. The court shall hold a hearing within three days after 21 demand by the attorney for the Commonwealth, one of which days 22 must be a business day for the court, and a final decree shall 23 be filed in the office of the prothonotary within 24 hours after 24 the close of the hearing. A written memorandum supporting the 25 decree shall be filed within five days of the filing of the 26 decree. The attorney for the Commonwealth shall prove the 27 elements of the violation beyond a reasonable doubt. The 28 defendant shall have the right to trial by jury at the said 29 hearing. 30 (h) Criminal prosecution.-- 19890H1141B1301 - 7 -
1 (1) Any person who violates subsection (a) or (f) is 2 guilty of a misdemeanor of the first degree. Violation of 3 subsection (a) is a felony of the third degree if the offender 4 has previously been convicted of a violation of subsection (a) 5 or if the material was sold, distributed, prepared or published 6 for the purpose of resale. 7 (2) Any person who violates subsection (c) or (d) is 8 guilty of a misdemeanor of the first degree. Violation of 9 subsection (c) or (d) is a felony of the third degree if the 10 offender has previously been convicted of a violation of 11 subsection (c) or (d). 12 (3) Findings made in an equity action shall not be 13 binding in the criminal proceedings. 14 (i) Right to jury trial.--The right to trial by jury shall 15 be preserved in all proceedings under this section. 16 (j) Exemptions.--Nothing in this section shall apply to any 17 recognized historical society or museum accorded charitable 18 status by the Federal Government, any county, city, borough, 19 township or town library, any public library, any library of any 20 school, college or university or any archive or library under 21 the supervision and control of the Commonwealth or a political 22 subdivision. 23 (k) Ordinances or resolutions.--Nothing in this chapter 24 shall be construed to invalidate, supersede, repeal or preempt 25 any ordinance or resolution of any political subdivision insofar 26 as it is consistent with this chapter, and political 27 subdivisions further retain the right to regulate any 28 activities, displays, exhibitions or materials not specifically 29 regulated by this chapter. 30 Section 2. This act shall take effect immediately. C7L18WMB/19890H1141B1301 - 8 -