ARTICLE XXXVIII. - PORNOGRAPHIC AND HARMFUL MATERIALS AND PERFORMANCES
Part of the Code of Ordinances of Minersville, UT.
The text
Footnotes:
--- (22) --- State Law reference— Pornographic and harmful materials and performances, U.C.A. 1953, § 76-10-1201 et seq.
Sec. 14-1193. - Definitions.#
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Blinder rack means an opaque cover that covers the lower two-thirds of a material so that the lower two-thirds of the material is concealed from view.
Contemporary community standards means those current standards in the vicinage where an offense alleged under this article has occurred, is occurring, or will occur.
Distribute means to transfer possession of materials whether with or without consideration.
Exhibit means to show.
Harmful to minors means that quality of any description or representation, in whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it: (1)
Taken as a whole, appeals to the prurient interest in sex of minors;
(2)
Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(3)
Taken as a whole, does not have serious value for minors.
Knowingly, regarding material or a performance, means an awareness, whether actual or constructive, of the character of the material or performance. As used in this definition a person has constructive knowledge if a reasonable inspection or observation under the circumstances would have disclosed the nature of the subject matter and if a failure to inspect or observe is either for the purpose of avoiding the disclosure or is criminally negligent as described in U.C.A. 1953, § 76-2-103.
Material means anything printed or written or any picture, drawing, photograph, motion picture, or pictorial representation, or any statue or other figure, or any recording or transcription, or any mechanical, chemical, or electrical reproduction, or anything which is or may be used as a means of communication. The term "material" includes undeveloped photographs, molds, printing plates, and other latent representational objects.
Minor means any person less than 18 years of age.
Negligently means simple negligence, the failure to exercise that degree of care that a reasonable and prudent person would exercise under like or similar circumstances.
Nudity means the showing of the human male or female genitals, pubic area, or buttocks, with less than an opaque covering, the showing of a female breast with less than an opaque covering or any portion of the female breast below the top of the areola, or the depiction of covered male genitals in a discernibly turgid state.
Performance means any physical human bodily activity, whether engaged in alone or with other persons, including singing, speaking, dancing, acting, simulating, or pantomiming.
Public place includes a place to which admission is gained by payment of a membership or admission fee, however designated, notwithstanding its being designated a private club or by words of like import.
Sado-masochistic abuse means: (1)
Flagellation or torture by or upon a person who is nude or clad in undergarments, a mask, or in a revealing or bizarre costume; or
(2)
The condition of being fettered, bound, or otherwise physically restrained on the part of a person clothed as described in subsection (1) of this definition.
Sexual conduct means acts of masturbation, sexual intercourse, or any touching of a person's clothed or unclothed genitals, pubic area, buttocks, or, if the person is a female, breast, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent or actual sexual stimulation or gratification.
Serious value includes only serious literary, artistic, political or scientific value for minors.
Sexual excitement means a condition of human male or female genitals when in a state of sexual stimulation or arousal, or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity.
(Code 1981, § 13-1201)
State Law reference— Similar provisions, U.C.A. 1953, § 76-10-1201 et seq.
Sec. 14-1194. - Pornographic material or performance—No expert witness required.#
(a)
Any material or performance is pornographic if:
(1)
The average person, applying contemporary community standards, finds that, taken as a whole, it appeals to prurient interest in sex;
(2)
It is patently offensive in the description or depiction of nudity, sexual conduct, sexual excitement, sadomasochistic abuse, or excretion; and
(3)
Taken as a whole it does not have serious literary, artistic, political or scientific value.
(b)
In prosecutions under this article, where circumstances of production, presentation, sale, dissemination, distribution, exhibition, or publicity indicate that the matter is being commercially exploited by the defendant for the sake of its prurient appeal, this evidence is probative with respect to the nature of the matter and can justify the conclusion that, in the context in which it is used, the matter has no serious literary, artistic, political, or scientific value.
(c)
Neither the prosecution nor the defense shall be required to introduce expert witness testimony as to whether the material or performance is or is not harmful to adults or minors or is or is not pornographic, or as to any element of the definition of pornographic, including contemporary community standards.
(Code 1981, § 13-1202)
State Law reference— Similar provisions, U.C.A. 1953, § 76-10-1203.
Sec. 14-1195. - Pornographic material or performance—Determination of predominant appeal to prurient interest; expert testimony not required.#
(a)
Any material or performance is pornographic if:
(1)
The average person, applying contemporary community standards finds that, taken as a whole, it appeals to prurient interest in sex;
(2)
It is patently offensive in the description or depiction of nudity, sexual conduct, sexual excitement, sadomasochistic abuse, or excretion; and
(3)
Taken as a whole it does not have serious literary, artistic, political or scientific value.
(b)
In prosecutions under this article, where circumstances of production, presentation, sale, dissemination, distribution, exhibition, or publicity indicate that the matter is being commercially exploited by the defendant for the sake of its prurient appeal, this evidence is probative with respect to the nature of the matter and can justify the conclusion that, in the context in which it is used, the matter has no serious literary, artistic, political, or scientific value.
(c)
Neither the prosecution nor the defense shall be required to introduce expert witness testimony as to whether the material or performance is or is not harmful to adults or minors or is or is not pornographic, or as to any element of the definition of pornographic, including contemporary community standards.
(Code 1981, § 13-1203)
State Law reference— Similar provisions, U.C.A. 1953, § 76-10-1023.
Sec. 14-1196. - Distributing pornographic material.#
(a)
A person is guilty of distributing pornographic material when the person knowingly:
(1)
Sends or brings any pornographic material into the town with intent to distribute or exhibit it to others;
(2)
Prepares, publishes, prints, or possesses any pornographic material with intent to distribute or exhibit it to others;
(3)
Distributes or offers to distribute, exhibits or offers to exhibit, any pornographic material to others;
(4)
Writes, creates, or solicits the publication or advertising of pornographic material;
(5)
Promotes the distribution or exhibition of material which he represents to be pornographic; or
(6)
Presents or directs a pornographic performance in any public place or any place exposed to public view or participates in that portion thereof which makes it pornographic.
(b)
Each distributing of pornographic material, as defined in this subsection (a) of this section, is a separate offense under this section.
(c)
It is a separate offense under this section for:
(1)
Each day's exhibition of any pornographic motion picture film; and
(2)
Each day in which any pornographic publication is displayed or exhibited in a public place with intent to distribute or exhibit it to others.
(d)
An offense under this section committed by a person younger than 16 years of age is a Class B misdemeanor.
(e)
(1)
This section does not apply to an internet service provider, as defined in U.C.A. 1953, § 76-10-1230, if:
a.
The distribution of pornographic material by the internet service provider occurs only incidentally through the internet service provider's function of:
1.
Transmitting or routing data from one person to another person; or
2.
Providing a connection between one person and another person;
b.
The internet service provider does not intentionally aid or abet in the distribution of the pornographic material; and
c.
The internet service provider does not knowingly receive funds from or through a person who distributes the pornographic material in exchange for permitting the person to distribute the pornographic material.
(2)
This section does not apply to a hosting company, as defined in U.C.A. 1953, § 76-10-1230, if:
a.
The distribution of pornographic material by the hosting company occurs only incidentally through the hosting company's function of providing data storage space or data caching to a person;
b.
The hosting company does not intentionally engage, aid, or abet in the distribution of the pornographic material; and
c.
The hosting company does not knowingly receive funds from or through a person who distributes the pornographic material in exchange for permitting the person to distribute, store, or cache the pornographic material.
(Code 1981, § 13-1204)
State Law reference— Similar provisions, U.C.A. 1953, § 76-10-1204(1), (2), (3), (4)(c), (6).
Sec. 14-1197. - Dealing in harmful material to a minor.#
(a)
A person is guilty of dealing in material harmful to minors when, knowing or believing that an individual is a minor, or having negligently failed to determine the proper age of a minor, the person intentionally:
(1)
Distributes or offers to distribute, or exhibits or offers to exhibit, any to a minor or an individual whom the person believes to be a minor, any material harmful to minors;
(2)
Produces, performs, or directs any performance before a minor, harmful to minors, or participates in any performance before a minor or an individual whom the person believes to be a minor, that is harmful to minors;
(3)
Participates in any performance, before a minor or an individual whom the person believes to be a minor, that is harmful to minors.
(b)
Each separate offense under this section committed by a person younger than 16 years of age is a Class B misdemeanor.
(c)
(1)
This section does not apply to an internet service provider, as defined in U.C.A. 1953, § 76-10-1230, a provider of an electronic communications service as defined in 18 USC 2510, a telecommunications service, information service, or mobile service as defined in 47 USC 153, including a commercial mobile service as defined in 47 USC 332(d), or a cable operator as defined in 47 USC 522, if:
a.
The distribution of pornographic material by the Internet service provider occurs only incidentally through the provider's function of:
1.
Transmitting or routing data from one person to another person; or
2.
Providing a connection between one person and another person;
b.
The provider does not intentionally aid or abet in the distribution of the pornographic material; and
c.
The provider does not knowingly receive from or through a person who distributes the pornographic material a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute the pornographic material.
(2)
This section does not apply to a hosting company, as defined in U.C.A. 1953, § 76-10-1230, if:
a.
The distribution of pornographic material by the hosting company occurs only incidentally through the hosting company's function of providing data storage space or data caching to a person;
b.
The hosting company does not intentionally engage, aid, or abet in the distribution of the pornographic material; and
c.
The hosting company does not knowingly receive from or through a person who distributes the pornographic material a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute, store, or cache the pornographic material.
(d)
A service provider, as defined in U.C.A. 1953, § 76-10-1230, is not negligent under this section if the service provider complies with U.C.A. 1953, § 76-10-1231.
(Code 1981, § 13-1206)
State Law reference— Similar provisions, U.C.A. 1953, § 76-10-1206(1), (2)(d), (3)(d).
Sec. 14-1198. - Affirmative defenses.#
The following shall be affirmative defenses to prosecution under this article: (1)
It is an affirmative defense to prosecution under this article that the distribution of pornographic material was restricted to institutions or persons having scientific, educational, governmental, or other similar justification for possessing pornographic material.
(2)
It is not a defense to prosecution under this article that the actor was a motion picture projectionist, usher, ticket-taker, bookstore employee, or otherwise was required to violate any provision of this article incident to his employment.
(Code 1981, § 13-1208)
State Law reference— Similar provisions, U.C.A. 1953, § 76-10-1208.
Sec. 14-1199. - Indecent public displays.#
(a)
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:
Description or depictions of illicit sex or sexual immorality means: (1)
Human genitals in a state of sexual stimulation or arousal;
(2)
Acts of human masturbation, sexual intercourse, or sodomy; or
(3)
Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast.
Nude or partially denuded figures means: (1)
Less than completely and opaquely covered human:
a.
Genitals;
b.
Pubic regions;
c.
Buttock; and
d.
Female breast below a point immediately above the top of the areola; and
(2)
Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
(b)
Prohibitions. Subject to the affirmative defense in U.C.A. 1953, § 76-10-1208(3), a person is guilty of a Class A misdemeanor who willfully or knowingly:
(1)
Engages in the business of selling, lending, giving away, showing, advertising for sale, or distributing to a minor or has in the person's possession with intent to engage in that business or to otherwise offer for sale or commercial distribution to a minor any material with:
a.
A description or depiction of illicit sex or sexual immorality; or
b.
A nude or partially denuded figure; or
(2)
Publicly displays at newsstands or any other establishment frequented by minors, or where the minors are or may be invited as a part of the general public, any motion picture, or any live, taped, or recorded performance, or any still picture or photograph, or any book, pocket book, pamphlet, or magazine the cover or content of which:
a.
Exploits, is devoted to, or is principally made up of one or more descriptions or depictions of illicit sex or sexual immorality; or
b.
Consists of one or more pictures of nude or partially denuded figures.
(c)
Penalty. A violation of this section is punishable by:
(1)
A minimum mandatory fine of not less than $500.00; and
(2)
Incarceration, without suspension of sentence in any way, for a term of not less than 30 days.
(d)
Superseding state law. This section supersedes U.C.A. 1953, § 77-18-105.
(Code 1981, §§ 13-1227, 13-1228)
State Law reference— Similar provisions, U.C.A. 1953, § 76-10-1228.
Sec. 14-1200. - Breast feeding is not violation of this article.#
A woman's breast feeding, including breast feeding in any location where the woman otherwise may rightfully be, does not under any circumstance constitute a violation of this article, irrespective of whether or not the breast is covered during or incidental to feeding. State Law reference— Similar provisions, U.C.A. 1953, § 76-10-1229.5.