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HomeMy WebLinkAbout799ORDINANCE NO. AN ORDINANCE PROVIDING FOR THE CONTROL OF OBSCENE MATTER, PRO- VIDING PENALTIES THEREFORE, GIVING DEFINITIONS,STATING POLICY, PROVIDING PROCEDURES FOR ENFORCEMENT, DECLARING AN EMERGENCY AND OTHER PURPOSES. BE IT ORDAINED BY THE CITY COUNCIL OF BATESVILLE, ARKANSAS AS FOLLOWS SECTION i DEFINITIONS. As used in this Act; (a) A thing is "obscene" if, by contemporary community standards, and considered as a whole, its predominant appeal is to prurient interest. (b) "Prurient interest" is defined as a shameful or morbid interest in nudity, sex or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is designed for, or directed to a specially susceptible audience, the subject matter shall be judged with ref- erence to such audience. For the purpose of Section 7 of this Act, when the subject matter is distributed or exhibited to minors under 18 years of age, the subject matter shall be judged. with reference to an average person in the community of the actual age of the minor to whom such material is distributed, or exhibited. In all other cases, the subject matter shall be judged with reference to the average person in the community. (c) "Matter" means any book, magazine, news- paper, or other printed or written material or any picture, drawing, photograph, motion picture, play, night club performance, television production, or other pictorial representation,of any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials. (d) "Person" means any individual, partnership, firm, association, corporation or other legal entity. (e) "Distribute" means to transfer possession of, whether with or without consideration, by any means. (f) "Knowingly" means having actual or constructive knowledge of the obscene contents of the subject matter. A person has constructive knowledge of the obscene contents, if he has knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material, and the failure to inspect the contents is either for the purpose of avoiding such disclosure or is due to reckless conduct. (1) "Reckless conduct" is conduct which consciously disregards a substantial and unjustifiable risk that matter may be obscene. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that On an average law --abiding person would observe in the actor's situation under like circumstances. SECTION 2 AFFIRMATIVE DEFENSE. This Act shall not apply to persons who may possess or distribute obscene matter or participate in conduct otherwise proscribed by this Act when such possession, distribution or conduct occurs in the course of law enforcement activities, or in the course of bona fide scientific, educational, or comparable research or study, or like circumstances of justification. If this issue is not presented by the prosecution's evidence, the defendant may raise the same as an affirmative defense by presenting some evidence thereon. When raised, the prosecution must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue. JURY TRIAL. SECTION 3 Criminal prosecutions and other proceedings involving the ultimate issue of obscenity (as distinguished from the issue of "probable cause") shall be tried by jury if in circuit court, unless both parties to the action waive a jury trial in writing or by statement in open court, entered in the minutes. with the approval of the court. In municipal or other courts the ultimate issue of obscenity shall be by the trier of fact. SECTION 4 FUNCTION OF JURY AND COURT IN OBSCENITY TRIAL. (a) The jury represents a cross section of the community and has a special aptitude for expressing the view of the average person. As the trier of fact, it is the exclusive judge of the common conscience of the community and the em- bodiment of community standards. (b) Where a jury question is presented, i.e., that reasonable men may differ whether the subject matter or conduct is obscene, the trial court shall have no power either before, during, or after trial to dismiss an obscenity nro-- ceeding on the ground that the subject matter, or conduct, is not obscene as a matter of law, nor may an appelate court after trial set aside an obscenity verdict on the same grounds if an exam-, ination of the evidence indicates the verdict is supported by sufficient evidence. (c) Any dismissal by the trial court on such grounds is appealable by the City of Batesville or any interested citizen of Batesville. PRESUMPTION. SECTION 5 Every person is presumed to have knowledge of the standards that exist in the community and what the jury or trier of fact may declare to be obscene. NOW SECTION 6 GENERAL SALE OR DISTRIBUTION. ETC., OF OBSCENE MATTER; PENALTY. Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this City for sale or distribution or exhibition; or in this City either (1) prepares, publishes, prints, exhibits, distributes, or offers to distribute- or (2) has in his possession with intent to distribute or to exhibit or offer to distribute; any obscene matter is guilty of a misdemeanor. SECTION 7 DISTRIBUTION OF OBSCENE MATTER TO MINOR; PENALTY. Every person, who with knowledge that a person is a minor under 18 years of age, or who, while in possession of such facts that he should reasonably know that such person is a minor under 18 years of age, knowingly sends or causes to be sent, exhibits, distributes, or offers to distribute any obscene matter to a minor under 18 years of age, is guilty of a mis- demeanor. SECTION 8 HIRING. EMPLOYING, ETC., MINOR TO ENGAGE IN ACTS DESCRIBED IN SECTION 4; PENALTY. Every person who, with knowledge that a person is a minor under 18 years of age, or who, while in possession of such facts that he should reasonable know that such person is a minor under 18 years of age, hires, employes, or uses such minor to do or assist in doing any of the acts described in Sections 6 or 7 is guilty of a misdemeanor. VW SECTION 9 .rr ADVERTISEMENT, PROMOTION OF SALE, ETC., OF MATTER REPRESENTED TO BE OBSCENE; PENALTY. Every person who writes, creates, or solicits the publication or distribution of advertising or other promotional material for, or who otherwise advertises or promotes the sale, distribution, or exhibition of matter repre- sented or held out by him to be obscene, whether or not such matter exists in fact, or is obscene, is guilty of a misdemeanor. SECTION 10 PARTICIPATION IN LEWD EXPOSURE OR SIMULATED ACTS OF SEXUAL INTERCOURSE OR PERVERSION AS A PART OF A PLAY, ETC. (a) Every person who, during the course of a play, night club act, motion picture,television production, or other exhibition or mechanical reproduction of human conduct, engages in any lewd exposure or simulated act of sexual inter- course or perversion, which if engaged in offstage or offscreen and in public, and acts against nature is guilty of a misdemeanor. (b) Every person who procures, counsels, or assists any person to engage in such conduct, or who knowingly exhibits. or procures, counsels or assists in the exhibition of a motion picture. television production or other mechanical reproduction containing such conduct is guilty of a misdemeanor. wrr SECTION 11 '" SINGING OBSCENE SONG, BALLAD, ETC.; PENALTY. (a) Every person who sings or speaks any obscene song, ballad, or other words in any play, night club act, motion picture, television production, or other exhibition or medium reproducing human conduct, or in any public place, is guilty of a misdemeanor. (b) Every person who procures, counsels, or assists any person to engage in such conduct, or who knowingly exhibits, or procures, counsels, or assists in the exhibition of a motion picture, television production, or other mechanical reproduction containing such conduct, is guilty of a misdemeanor. SECTION . 1.2 REQUIRING PURCHASER OR CONSIGNEE TO RECEIVE OBSCENE MATTER AS CONDITION TO SALE, ETC.; PENALTY. Every person, who, knowingly, as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, publication or other merchandise, requires that the purchaser or consignee receive any matter reasonably believed by the purchaser or consignee to be obscene, or who denies or threatens to deny a frachise, revokes or threatens to revoke, or imposes any penalty, financial or otherwise, by reason of the failure of any person to accept such matter, or by reason of the return of such matter, is guilty of a misdemeanor. SPECIAL VERDICT. war. •,rr SECTION 13 At the trial of any action arising hereunder, the jury shall render a special verdict, or, if jury trial be waived, the court shall enter special findings, on the issue of obscenity, in addition to a general verdict or general findings. The special verdict or findings cap the issue of obscenity shall be: "We, the jury,find (or trier of fact) the (title or description of matter) to be obscene." or. "We, the jury, find (or trier of fact) the --- —_—_ (title or description of matter) not to be obscene," as each item is or is not found obscene. A special verdict shall not be admissible as evidence in any other proceeding, nor shall it be res judicata of any question in any other proceeding. SECTION 14 PUNISHMENT. (a) Every person who violates any Section of this ordinance is punishable by a fine of not more than one thousand dollars ($1;000.00) nor more than 1 year in the county !ail or both. And each day a violation exists shall constitute a separate offense. SECTION 15 SEIZURE OF OBSCENE MATTER AUTHORIZED. Every person who is authorized to arrest any person for a violation of this pct is equally authorized to seize any obscene matter found in the possession or under the control of the person so arrested and to deliver the same to the court before whom the person so arrested is required to be taken. SECTION 16 PROBABLE CAUSE FOR SEIZURE TO BE SUMMARILY DETERMINED. (a) If the seizure be controverted by any interested person, the court to whom any obscene matter is delivered pursuant to the foregoing section (or to the return of a search warrant) must within one day after service upon the City or prosecuting attorney of a motion to suppress the evidence and/or restore the matter, proceed to take testimony in relation thereto. A decision as to whether there is probable cause to believe the seized material to be obscene shall be rendered by the court within two days of the conclusion of the restoration proceedings. (b) If the motion to suppress the evidence is granted on the grounds of an unlawful seizure, the property shall be restored unless it is subject of confiscation as contraband, as provided for in Section 18, in which case it shall not be returned. SECTION 17 CONTRABAND. DESTRUCTION OF OBSCENE MATTER OR ADVERTISEMENT OF MATTER REPRESENTED TO BE OBSCENE. (a) Obscene matter and advertisements for matter represented to be obscene are contraband and shall be destroyed. (b) Upon the conviction of the accused or rendition of a court order declaring such matter to be contraband and subject to confiscation, the court shall, when such judgments become final, order,. upon five days' notice to the defendant, any matter or advertisement, in respect whereof the accused stands convicted, and which remains in the possession or under the control of the city attorney or prosecuting attorney or any law enforcement agency, to be destroyed, and the court shall cause to be destroyed any such material in its possession or under its control, retaining only such copies as are necessary for law enforcement purposes. POLICY. SECTION 18 The several sheriffs, constables, prosecuting attorneys, and all law enforcement officials shall vigorously enforce these sections within their respective jurisdictions. IN SEVERABILITY. 4w SECTIOII 19 If any provision hereof or the application thereof to any person or circumstance is held invalid, such invalidity shallrot affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable. SECTION 20 EMERGENCY CLAUSE Because obscene material is being sold or is threatened to be sold or displayed and further because obscene materials have an adverse effect on public morals and further because it is necessary to protect the youth of the City of Batesville from obscene materials and further to protect the health, safety and welfare of the citizens of Batesville, An emergency is hereby declared to exist and this ordinance shall be in full force and effect from and after its passage. PASSED AND APPROVED THIS 7 DAY OF Mam 1971. ATTEST: L J/tiX CLERK YOR 0 It