SENATE AMENDED
PRIOR PRINTER'S NOS. 1301, 1717, 2440 PRINTER'S NO. 3060
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,
J. L. WRIGHT, DURHAM, MARSICO, WILSON, GLADECK, J. H. CLARK,
MOWERY, TELEK, SCRIMENTI AND BOWLEY, APRIL 11, 1989
SENATOR GREENLEAF, JUDICIARY, IN SENATE, AS AMENDED,
FEBRUARY 6, 1990
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
1 character of the materials or performances involved, shall:
2 (1) display or cause or permit the display of any
3 explicit sexual materials as defined in subsection (c) in or
4 on any window, showcase, newsstand, display rack, billboard,
5 display board, viewing screen, motion picture screen, marquee
6 or similar place in such manner that the display is visible
7 from any public street, highway, sidewalk, transportation
8 facility or other public thoroughfare, or in any business or
9 commercial establishment where minors, as a part of the
10 general public or otherwise, are or will probably be exposed
11 to view all or any part of such materials;
12 (2) sell, lend, distribute, exhibit, give away or show
13 any obscene materials to any person [17] 18 years of age or <--
14 older or offer to sell, lend, distribute, exhibit or give
15 away or show, or have in his possession with intent to sell,
16 lend, distribute, exhibit or give away or show any obscene
17 materials to any person [17] 18 years of age or older, or <--
18 knowingly advertise any obscene materials in any manner;
19 (3) design, copy, draw, photograph, print, utter,
20 publish or in any manner manufacture or prepare any obscene
21 materials;
22 (4) write, print, publish, utter or cause to be written,
23 printed, published or uttered any advertisement or notice of
24 any kind giving information, directly or indirectly, stating
25 or purporting to state where, how, from whom, or by what
26 means any obscene materials can be purchased, obtained or
27 had; [or]
28 (5) produce, present or direct any obscene performance
29 or participate in a portion thereof that is obscene or that
30 contributes to its obscenity; or
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1 [(5)] (6) hire, employ, use or permit any minor child to
2 do or assist in doing any act or thing mentioned in this
3 subsection.
4 (b) Definitions.--As used in this section the following
5 words and phrases shall have the meanings given to them in this
6 subsection:
7 "Community." For the purpose of applying the "contemporary
8 community standards" in this section, community means the State.
9 "Knowing." As used in subsection (a), knowing means having
10 general knowledge of, or reason to know or a belief or ground
11 for belief which warrants further inspection or inquiry of, the
12 character and content of any material or performance described
13 therein which is reasonably susceptible of examination by the
14 defendant.
15 "[Obscene materials] Material." Any literature, including
16 any book, magazine, pamphlet, newspaper, storypaper, bumper
17 sticker, comic book or writing[, and]; any figure, visual
18 representation, or image including any drawing, photograph,
19 picture, video tape or motion picture[; if:].
20 "Nude." Means showing the human male or female genitals,
21 pubic area, or buttocks with less than a fully opaque covering,
22 or showing the female breast with less than a fully opaque
23 covering of any portion thereof below the top of the nipple.
24 "Obscene." Any material or performance, if:
25 (1) the average person applying contemporary community
26 standards would find that the subject matter taken as a whole
27 appeals to the prurient interest;
28 (2) the subject matter depicts or describes in a
29 patently offensive way, sexual conduct of a type described in
30 this section; and
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1 (3) the subject matter, taken as a whole, lacks serious
2 literary, artistic, political, educational or scientific
3 value.
4 "Performance." Means any play, dance or other live
5 exhibition performed before an audience.
6 "Sadomasochistic abuse." Means, in a sexual context,
7 flagellation or torture by or upon a person who is nude or clad
8 in undergarments, a mask or in a bizarre costume, or the
9 condition of being fettered, bound or otherwise physically
10 restrained on the part of one who is nude or so clothed.
11 "Sexual conduct." Patently offensive representations or
12 descriptions of ultimate sexual acts, normal or perverted,
13 actual or simulated, including sexual intercourse, anal or oral
14 sodomy and sexual bestiality; and patently offensive
15 representations or descriptions of masturbation, excretory
16 functions, sadomasochistic abuse and lewd exhibition of the
17 genitals.
18 "Transportation facility." Any conveyance, premises or place
19 used for or in connection with public passenger transportation,
20 whether by air, rail, motor vehicle or any other method,
21 including aircraft, watercraft, railroad cars, buses, and air,
22 boat, railroad and bus terminals and stations.
23 (c) Dissemination to minors.--No person shall knowingly
24 disseminate by sale, loan or otherwise explicit sexual materials
25 to a minor. "Explicit sexual materials," as used in this
26 subsection, means materials which are obscene or:
27 (1) any picture, photograph, drawing, sculpture, motion
28 picture film, video tape or similar visual representation or
29 image of a person or portion of the human body which depicts
30 nudity, sexual conduct, or sadomasochistic abuse and which is
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1 harmful to minors; or
2 (2) any book, pamphlet, magazine, printed matter however
3 reproduced, or sound recording which contains any matter
4 enumerated in paragraph (1), or explicit and detailed verbal
5 descriptions or narrative accounts of sexual excitement,
6 sexual conduct, or sadomasochistic abuse and which, taken as
7 a whole, is harmful to minors.
8 (d) Admitting minor to show.--It shall be unlawful for any
9 person knowingly to exhibit for monetary consideration to a
10 minor or knowingly to sell to a minor an admission ticket or
11 pass or knowingly to admit a minor for a monetary consideration
12 to premises whereon there is exhibited, a motion picture show or
13 other presentation or performance which, in whole or in part,
14 depicts nudity, sexual conduct, or sadomasochistic abuse and
15 which is harmful to minors, except that the foregoing shall not
16 apply to any minor accompanied by his parent.
17 (e) Definitions.--As used in subsections (c) and (d) of this
18 section:
19 (1) "Minor" means any person under the age of [17] 18 <--
20 years.
21 (2) "Nudity" means the showing of the human male or
22 female genitals, pubic area, or buttocks with less than a
23 fully opaque covering, or the showing of the female breast
24 with less than a fully opaque covering of any portion thereof
25 below the top of the nipple, or the depiction of covered male
26 genitals in a discernibly turgid state.
27 (3) "Sexual conduct" means acts of masturbation,
28 homosexuality, sexual intercourse, sexual bestiality, or
29 physical contact with a person's clothed or unclothed
30 genitals, pubic area, buttocks or, if such person be a
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1 female, breast.
2 (4) "Sexual excitement" means the condition of human
3 male or female genitals when in a state of sexual stimulation
4 or arousal.
5 (5) "Sadomasochistic abuse" means flagellation or
6 torture by or upon a person clad in undergarments, a mask or
7 bizarre costume, or the condition of being fettered, bound or
8 otherwise physically restrained on the part of one so
9 clothed.
10 (6) "Harmful to minors" means that quality of any
11 description or representation, in whatever form, of nudity,
12 sexual conduct, sexual excitement, or sadomasochistic abuse,
13 when it:
14 (i) predominantly appeals to the prurient, shameful,
15 or morbid interest of minors; and
16 (ii) is patently offensive to prevailing standards
17 in the adult community as a whole with respect to what is
18 suitable material for minors; and
19 (iii) [is utterly without redeeming social
20 importance for minors] taken as a whole, lacks serious
21 literary, artistic, political, educational or scientific
22 value for minors.
23 (7) "Knowingly" means having general knowledge of, or
24 reason to know, or a belief or ground for belief which
25 warrants further inspection or inquiry of both:
26 (i) the character and content of any material or
27 performance described herein which is reasonably
28 susceptible of examination by the defendant; and
29 (ii) the age of the minor: Provided, however, That
30 an honest mistake shall constitute an excuse from
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1 liability hereunder if the defendant made a reasonable
2 bona fide attempt to ascertain the true age of such
3 minor.
4 (f) Requiring sale as condition of business dealings.--No
5 person shall knowingly require any distributor or retail seller
6 as a condition to sale or delivery for resale or consignment of
7 any literature, book, magazine, pamphlet, newspaper, storypaper,
8 paper, comic book, writing, drawing, photograph, videotape,
9 figure or image, or any written or printed matter, or any
10 article or instrument to purchase or take by consignment for
11 purposes of sale, resale or distribution any obscene literature,
12 book, magazine, pamphlet, newspaper, storypaper, paper, comic
13 book, writing, drawing, photograph, videotape, figure or image,
14 or any written or printed matter of an obscene nature or any
15 article or instrument of an obscene nature.
16 (g) Injunction.--The attorney for the Commonwealth may
17 institute proceedings in equity in the court of common pleas of
18 the county in which any person violates or clearly is about to
19 violate this section for the purpose of enjoining such
20 violation. The court shall issue an injunction only after
21 written notice and hearing and only against the defendant to the
22 action. The court shall hold a hearing within three days after
23 demand by the attorney for the Commonwealth, one of which days
24 must be a business day for the court, and a final decree shall
25 be filed in the office of the prothonotary within 24 hours after
26 the close of the hearing. A written memorandum supporting the
27 decree shall be filed within five days of the filing of the
28 decree. The attorney for the Commonwealth shall prove the
29 elements of the violation beyond a reasonable doubt. The
30 defendant shall have the right to trial by jury at the said
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1 hearing.
2 (h) Criminal prosecution.--
3 (1) Any person who violates subsection (a) or (f) is
4 guilty of a misdemeanor of the first degree. Violation of
5 subsection (a) is a felony of the third degree if the offender
6 has previously been convicted of a violation of subsection (a)
7 or if the material was sold, distributed, prepared or published
8 for the purpose of resale.
9 (2) Any person who violates subsection (c) or (d) is
10 guilty of a misdemeanor of the first degree. Violation of
11 subsection (c) or (d) is a felony of the third degree if the
12 offender has previously been convicted of a violation of
13 subsection (c) or (d).
14 (3) Findings made in an equity action shall not be
15 binding in the criminal proceedings.
16 (i) Right to jury trial.--The right to trial by jury shall
17 be preserved in all proceedings under this section.
18 (j) Exemptions.--Nothing in this section shall apply to any
19 recognized historical society or museum accorded charitable
20 status by the Federal Government, any county, city, borough,
21 township or town library, any public library, any library of any
22 school, college or university or any archive or library under
23 the supervision and control of the Commonwealth or a political
24 subdivision.
25 (k) Ordinances or resolutions.--Nothing in this chapter
26 shall be construed to invalidate, supersede, repeal or preempt
27 any ordinance or resolution of any political subdivision insofar
28 as it is consistent with this chapter, and political
29 subdivisions further retain the right to regulate any
30 activities, displays, exhibitions or materials not specifically
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1 regulated by this chapter.
2 Section 2. This act shall take effect immediately.
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