HOUSE AMENDED
PRIOR PRINTER'S NOS. 1780, 1906, 2122 PRINTER'S NO. 2136
No. 1430 Session of 1976
INTRODUCED BY HILL, KELLEY, FLEMING, COPPERSMITH AND LEWIS,
MARCH 30, 1976
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
JUNE 30, 1976
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, providing for alteration of <--
3 identification mark on movable personal property, AND FURTHER <--
4 DEFINING THE OFFENSE OF OBSCENITY, REDEFINING OBSCENE, AND
5 FURTHER PROVIDING FOR INJUNCTIONS.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Section 4104 AND SUBSECTIONS SUBSECTIONS (A), <--
9 (B), (C) AND (H) OF SECTION 5903 of Title 18, act of November
10 25, 1970 (P.L.707, No.230), known as the Pennsylvania
11 Consolidated Statutes, added December 6, 1972 (P.L.1482,
12 No.334), is amended ARE AMENDED AND A SUBSECTION IS ADDED to <--
13 read:
14 § 4104. Tampering with records or identification. <--
15 (a) Writings.-- A person commits a misdemeanor of the first
16 degree if, knowing that he has no privilege to do so, he
17 falsifies, destroys, removes or conceals any writing or record,
18 or distinguishing mark or brand or other identification with
1 intent to deceive or injure anyone or to conceal any wrongdoing.
2 (b) Personal movable property.--A person commits a summary
3 offense if he knowingly buys, sells, or moves in commerce any
4 movable personal property which includes a radio, citizens band
5 radio, tape recorder, tape player, piano, phonograph, sewing
6 machine, washing machine, typewriter, adding machine,
7 comptometer, bicycle, binocular, vacuum cleaner, camera,
8 projector, watch, watch movement, watch case, or any mechanical
9 or electrical device, appliance, contrivance, material, piece of
10 apparatus or equipment but does not exclude items not mentioned,
11 from which the manufacturer's name plate, serial number or any
12 other distinguishing number or identification mark has been
13 removed, defaced, covered, altered or destroyed unless the
14 alterations have been customarily made or done as an established
15 practice in the ordinary and regular conduct of business by the
16 original manufacturer or under specific authorization and
17 direction from the original manufacturer. Movable personal
18 property as set forth in this subsection shall not include
19 firearms or motor vehicles.
20 Section 2. This act shall take effect in 60 days.
21 § 5903. OBSCENITY. <--
22 (A) OFFENSES DEFINED.--WHOEVER KNOWING THE OBSCENE CHARACTER
23 OF THE MATERIAL INVOLVED:
24 (1) SELLS, LENDS, DISTRIBUTES, EXHIBITS, GIVES AWAY OR
25 SHOWS TO ANY PERSON 17 YEARS OF AGE OR OLDER OR OFFERS TO
26 SELL, LEND, DISTRIBUTE, EXHIBIT OR GIVE AWAY OR SHOW, OR HAS
27 IN HIS POSSESSION WITH INTENT TO SELL, LEND, DISTRIBUTE OR
28 GIVE AWAY OR TO SHOW TO ANY PERSON 17 YEARS OF AGE OR OLDER,
29 OR [KNOWINGLY] ADVERTISES IN ANY MANNER ANY OBSCENE
30 LITERATURE, MOTION PICTURE, BOOK, MAGAZINE, PAMPHLET,
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1 NEWSPAPER, STORYPAPER, PAPER, COMIC BOOK, WRITING, DRAWING,
2 PHOTOGRAPH, FIGURE OR IMAGE, OR ANY WRITTEN OR PRINTED MATTER
3 OF AN OBSCENE NATURE, OR ANY ARTICLE OR INSTRUMENT OF AN
4 OBSCENE NATURE, OR [WHOEVER]
5 (2) DESIGNS, COPIES, DRAWS, PHOTOGRAPHS, PRINTS, UTTERS,
6 PUBLISHES OR IN ANY MANNER MANUFACTURES OR PREPARES ANY SUCH
7 BOOK, PICTURE, DRAWING, MAGAZINE, PAMPHLET, NEWSPAPER,
8 STORYPAPER, PAPER, COMIC BOOK, WRITING, FIGURE, IMAGE,
9 MATTER, ARTICLE OR THING OR [WHOEVER]
10 (3) WRITES, PRINTS, PUBLISHES OR UTTERS OR CAUSES TO BE
11 PRINTED, PUBLISHED OR UTTERED, ANY ADVERTISEMENT OR NOTICE OF
12 ANY KIND GIVING INFORMATION, DIRECTLY OR INDIRECTLY, STATING
13 OR PURPORTING TO STATE WHERE, HOW, OR WHOM, OR BY WHAT MEANS
14 ANY OBSCENE BOOK, PICTURE, WRITING, PAPER, COMIC BOOK,
15 FIGURE, IMAGE, MATTER, ARTICLE OR THING NAMED IN THIS SECTION
16 CAN BE PURCHASED, OBTAINED OR HAD, OR [WHOEVER]
17 (4) HIRES, EMPLOYS, USES OR PERMITS ANY MINOR OR CHILD
18 TO DO OR ASSIST IN DOING ANY ACT OR THING MENTIONED IN THIS
19 SECTION,
20 IS GUILTY OF A MISDEMEANOR OF THE SECOND DEGREE. (B) OBSCENE
21 DEFINED.--"OBSCENE," AS USED IN THIS SECTION, MEANS THAT
22 WHICH [, TO THE AVERAGE PERSON APPLYING CONTEMPORARY
23 COMMUNITY STANDARDS, HAS AS ITS DOMINANT THEME, TAKEN AS A
24 WHOLE, AN APPEAL TO PRURIENT INTEREST.] IS DETERMINED AS
25 OBSCENE APPLYING THE FOLLOWING GUIDELINES:
26 (1) WHETHER THE AVERAGE PERSON APPLYING CONTEMPORARY
27 COMMUNITY STANDARDS WOULD FIND THAT THE SUBJECT MATTER TAKEN
28 AS A WHOLE APPEALS TO THE PRURIENT INTEREST;
29 (2) WHETHER THE SUBJECT MATTER DEPICTS OR DESCRIBES, IN
30 A PATENTLY OFFENSIVE WAY, SEXUAL CONDUCT OF A TYPE
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1 HEREINAFTER DESCRIBED; AND
2 (3) WHETHER THE SUBJECT MATTER, TAKEN AS A WHOLE LACKS
3 SERIOUS LITERARY, ARTISTIC, POLITICAL, EDUCATIONAL OR
4 SCIENTIFIC VALUE.
5 THE TYPES OF SEXUAL CONDUCT REFERRED TO HEREIN INCLUDE PATENTLY
6 OFFENSIVE REPRESENTATIONS OR DESCRIPTIONS OF ULTIMATE SEXUAL
7 ACTS, NORMAL OR PERVERTED, ACTUAL OR SIMULATED, AND PATENTLY
8 OFFENSIVE REPRESENTATIONS OR DESCRIPTIONS OF MASTURBATION,
9 SEXUAL CONDUCT SUCH AS FEMALE AND/OR MALE MASTURBATION,
10 FELLATIO, CUNNILINGUS, ANAL SODOMY, SEMINAL EJACULATION,
11 SADOMASOCHISTIC ABUSE, HETEROSEXUAL INTERCOURSE AND OTHER
12 EXCRETORY FUNCTIONS AND LEWD EXHIBITION OF THE GENITALS.
13 "COMMUNITY" FOR THE PURPOSE OF APPLYING THE "CONTEMPORARY
14 COMMUNITY STANDARDS" HEREIN SHALL BE CONSIDERED TO BE THE STATE.
15 (C) MINORS.--IT SHALL BE UNLAWFUL FOR ANY PERSON KNOWINGLY
16 TO [SELL OR LOAN FOR MONETARY OR OTHER VALUABLE CONSIDERATION]
17 DISSEMINATE EXPLICIT SEXUAL MATERIAL, AS HEREINAFTER DEFINED, TO
18 A MINOR, OR TO DISPLAY EXPLICIT SEXUAL MATERIAL FOR SALE IN AN
19 AREA TO WHICH MINORS HAVE ACCESS. "EXPLICIT SEXUAL MATERIAL," AS
20 USED IN THIS SUBSECTION, MEANS MATERIAL WHICH IS OBSCENE OR IS:
21 (1) ANY PICTURE, PHOTOGRAPH, DRAWING, SCULPTURE, MOTION
22 PICTURE FILM, OR SIMILAR VISUAL REPRESENTATION OR IMAGE OF A
23 PERSON OR PORTION OF THE HUMAN BODY WHICH DEPICTS NUDITY,
24 SEXUAL CONDUCT, OR SADOMASOCHISTIC ABUSE AND WHICH IS HARMFUL
25 TO MINORS; OR
26 (2) ANY BOOK, PAMPHLET, MAGAZINE, PRINTED MATTER HOWEVER
27 REPRODUCED, OR SOUND RECORDING WHICH CONTAINS ANY MATTER
28 ENUMERATED IN [CLAUSE] PARAGRAPH (1) HEREOF, OR EXPLICIT AND
29 DETAILED VERBAL DESCRIPTIONS OR NARRATIVE ACCOUNTS OF SEXUAL
30 EXCITEMENT, SEXUAL CONDUCT, OR SADOMASOCHISTIC ABUSE AND
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1 WHICH, TAKEN AS A WHOLE, IS HARMFUL TO MINORS.
2 * * *
3 (H) INJUNCTION.--THE DISTRICT ATTORNEY OF ANY COUNTY IN
4 WHICH ANY PERSON SELLS, LENDS, DISTRIBUTES, EXHIBITS, GIVES AWAY
5 OR SHOWS, OR IS ABOUT TO SELL, LEND, DISTRIBUTE, EXHIBIT, GIVE
6 AWAY OR SHOW, OR HAS IN HIS POSSESSION WITH INTENT TO SELL,
7 RESELL, LEND, DISTRIBUTE, EXHIBIT, GIVE AWAY OR SHOW, ANY
8 OBSCENE LITERATURE, MOTION PICTURE, BOOK, MAGAZINE, PAMPHLET,
9 NEWSPAPER, STORYPAPER, PAPER, COMIC BOOK, WRITING, DRAWING,
10 PHOTOGRAPH, FIGURE OR IMAGE, OR ANY WRITTEN OR PRINTED MATTER OF
11 AN ALLEGEDLY OBSCENE NATURE, OR ANY ARTICLE OR INSTRUMENT OF AN
12 OBSCENE NATURE, MAY INSTITUTE PROCEEDINGS IN EQUITY IN THE COURT
13 OF COMMON PLEAS OF SAID COUNTY FOR THE PURPOSE OF ENJOINING THE
14 SALE, RESALE, LENDING, DISTRIBUTION, EXHIBIT, GIFT OR SHOW OF
15 SUCH ALLEGEDLY OBSCENE LITERATURE, MOTION PICTURE, BOOK,
16 MAGAZINE, PAMPHLET, NEWSPAPER, STORYPAPER, PAPER, COMIC BOOK,
17 WRITING, DRAWING, PHOTOGRAPH, FIGURE OR IMAGE, OR ANY WRITTEN OR
18 PRINTED MATTER OF AN ALLEGEDLY OBSCENE NATURE, OR ANY ARTICLE OR
19 INSTRUMENT OF AN OBSCENE NATURE, CONTRARY TO THE PROVISIONS OF
20 THIS SECTION, AND FOR SUCH PURPOSES JURISDICTION IS HEREBY
21 CONFERRED UPON SAID COURTS. A PRELIMINARY INJUNCTION MAY ISSUE
22 AND A HEARING THEREAFTER BE HELD THEREON IN CONFORMITY WITH THE
23 RULES OF CIVIL PROCEDURE UPON THE AVERMENT OF THE DISTRICT
24 ATTORNEY THAT THE SALE, RESALE, LENDING, DISTRIBUTION, EXHIBIT,
25 GIFT OR SHOW OF SUCH PUBLICATION OR MOTION PICTURE CONSTITUTES A
26 DANGER TO THE WELFARE OR PEACE OF THE COMMUNITY. PRIOR TO THE
27 ISSUANCE OF A PRELIMINARY INJUNCTION, SUFFICIENT NOTICE OF THE
28 APPLICATION FOR AN INJUNCTION SHALL HAVE BEEN GIVEN TO THE PARTY
29 TO BE ENJOINED, OF THE TIME AND PLACE WHERE THE APPLICATION FOR
30 SUCH PRELIMINARY INJUNCTION IS TO BE MADE AND THE NATURE
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1 THEREOF. THEREAFTER THE DEFENDANT SHALL HAVE THE RIGHT TO A
2 HEARING ON WHETHER THE PRELIMINARY INJUNCTION SHALL BE DISSOLVED
3 OR MADE FINAL, WITHIN THREE DAYS OF ISSUANCE OF THE PRELIMINARY
4 INJUNCTION AND DECISION SHALL BE RENDERED BY THE COURT BY FILING
5 A FINAL DECREE IN THE OFFICE OF THE PROTHONOTARY WITHIN 24 HOURS
6 OF THE CONCLUSION OF THE HEARING. THE TRIAL JUDGE SHALL FILE A
7 WRITTEN MEMORANDUM SUPPORTING THE FINAL DECREE WITHIN FIVE DAYS
8 AFTER THE DECREE IS FILED. THE DEFENDANT, AND SOLELY AT HIS
9 OPTION, SHALL HAVE THE RIGHT TO TRIAL BY JURY AT THE
10 AFOREMENTIONED HEARING. UNLESS THE HEARING OR TRIAL IS HELD AND
11 THE DECISION IS RENDERED WITHIN THE TIMES SPECIFIED THE
12 PRELIMINARY INJUNCTION SO ISSUED SHALL BE DEEMED DISSOLVED
13 UNLESS THE DEFENDANT HAS CAUSED OR AGREED TO THE DELAY. THE
14 PRELIMINARY INJUNCTION MAY CONTAIN A PROVISION DIRECTING THE
15 DEFENDANT TO SURRENDER TO SUCH PEACE OFFICER AS THE COURT MAY
16 DIRECT ALL SUCH OBSCENE MATERIALS AS MAY BE INVOLVED IN THE
17 OFFENSE ENJOINED AND DIRECTING THE PEACE OFFICER TO DESTROY SUCH
18 OBSCENE MATERIALS AT SUCH TIME AS THE PRELIMINARY INJUNCTION
19 BECOMES PERMANENT AND RIGHTS OF REVIEW ARE EXHAUSTED. THE
20 DISTRICT ATTORNEY SHALL NOT BE REQUIRED TO GIVE BOND.
21 * * *
22 (J) EXEMPTIONS.--NOTHING IN THIS SECTION SHALL APPLY TO ANY
23 RECOGNIZED HISTORICAL SOCIETY OR MUSEUM ACCORDED CHARITABLE
24 STATUS BY THE FEDERAL GOVERNMENT, ANY COUNTY, CITY, BOROUGH,
25 TOWNSHIP OR TOWN LIBRARY, ANY PUBLIC LIBRARY, ANY LIBRARY OF ANY
26 SCHOOL, COLLEGE OR UNIVERSITY OR ANY ARCHIVE OR LIBRARY UNDER
27 THE SUPERVISION AND CONTROL OF THE COMMONWEALTH, COUNTY,
28 MUNICIPALITY OR OTHER POLITICAL SUBDIVISION.
29 SECTION 2. THE PROVISIONS OF THIS ACT SHALL BE SEVERABLE. IF
30 ANY PROVISION OF THIS ACT IS FOUND BY A COURT OF RECORD TO BE
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1 UNCONSTITUTIONAL AND VOID, THE REMAINING PROVISIONS OF THIS ACT
2 SHALL, NEVERTHELESS, REMAIN VALID, UNLESS THE COURT FINDS THE
3 VALID PROVISIONS OF THIS ACT ARE SO ESSENTIALLY AND INSEPARABLY
4 CONNECTED WITH, AND SO DEPEND UPON, THE VOID PROVISION, THAT IT
5 CANNOT BE PRESUMED THE LEGISLATURE WOULD HAVE ENACTED THE
6 REMAINING VALID PROVISIONS WITHOUT THE VOID ONE; OR UNLESS THE
7 COURT FINDS THE REMAINING VALID PROVISIONS, STANDING ALONE, ARE
8 INCOMPLETE AND ARE INCAPABLE OF BEING EXECUTED IN ACCORDANCE
9 WITH THE LEGISLATIVE INTENT.
10 SECTION 3. THIS ACT SHALL TAKE EFFECT IN 60 DAYS.
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