PRINTER'S NO. 3314
No. 2526 Session of 1980
INTRODUCED BY SHUPNIK, RASCO, WARGO, GRIECO, W. W. FOSTER,
MADIGAN, PHILLIPS, GRUPPO, A. C. FOSTER, JR., DUFFY, MRKONIC,
FRYER, CESSAR, GAMBLE, GATSKI, LESCOVITZ, COSLETT, HASAY AND
SCHMITT, MAY 7, 1980
REFERRED TO COMMITTEE ON JUDICIARY, MAY 7, 1980
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, further providing for offenses
3 relating to public indecency.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Title 18, act of November 25, 1970 (P.L.707,
7 No.230), known as the Pennsylvania Consolidated Statutes, is
8 amended by adding sections to read:
9 § 5903.1. Definitions.
10 The following words and phrases when used in this chapter
11 shall have, unless the context clearly indicates otherwise, the
12 meanings given to them in this section:
13 "Community." When used in connection with "contemporary
14 community standards," means the geographical area within the
15 jurisdiction of the court or vicinage of the jury hearing the
16 case, whichever is larger.
17 "Harmful to juveniles." Any material or performance, whether
1 through pictures, photographs, drawings, writings, cartoons,
2 recordings, films, video tapes or other such medium is "harmful
3 to juveniles" if all of the following apply:
4 (1) The average person, applying contemporary community
5 standards, would find that the material or performance, taken
6 as a whole, has a tendency to excite lustful or erotic
7 thoughts in juveniles, or which caters or appeals to a
8 prurient interest.
9 (2) The material or performance depicts or describes
10 sexually explicit nudity, sexual conduct, sadomasochistic
11 sexual abuse or lewd exhibition of the genitals, in a way
12 which is patently offensive to prevailing standards in the
13 adult community with respect to what is suitable for
14 juveniles.
15 (3) The material or performance, taken as a whole, lacks
16 serious literary, artistic, political or scientific value for
17 juveniles.
18 "Juvenile." Any unmarried person under the age of 18 years.
19 "Knowledge of character." Having general knowledge or reason
20 to know, or a belief or ground for belief which warrants further
21 inspection or inquiry, of the nature and character of the
22 material or performance involved. A person has such knowledge
23 when he or she knows or is aware that the material or
24 performance contains, depicts or describes sexually explicit
25 nudity, sexual activity, sadomasochistic sexual abuse or lewd
26 exhibition of the genitals, whichever is applicable, whether or
27 not such person has precise knowledge of the specific contents
28 thereof. Such knowledge may be proven by direct or
29 circumstantial evidence, or both.
30 "Material." Any book, magazine, newspaper, advertisement,
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1 pamphlet, poster, print, picture, figure, image, drawing,
2 description, motion picture film, phonographic record or
3 recording tape, video tape or other tangible thing capable of
4 producing or reproducing an image, picture, sound or sensation
5 through sight, sound or touch.
6 "Obscene." Any material or performance, whether through
7 pictures, photographs, drawings, writings, cartoons, recordings,
8 films, video tapes or other such medium is "obscene" if all of
9 the following apply:
10 (1) The average person, applying contemporary community
11 standards, would find that the material or performance, taken
12 as a whole, appeals to the prurient interest.
13 (2) The material or performance depicts or describes, in
14 a patently offensive way, sexual conduct, sadomasochistic
15 sexual abuse or lewd exhibition of the genitals.
16 (3) The material or performance, taken as a whole, lacks
17 serious literary, artistic, political or scientific value.
18 "Performance." Any motion picture, film, video tape, played
19 record, phonograph or tape, broadcast, preview, trailer, play,
20 show, skit, dance, or other exhibition performed or presented to
21 or before an audience of one or more, or transmitted by means of
22 electrical, radio, television, telephonic or other communicative
23 device or facility to a known closed or open circuit audience of
24 one or more or to the general public.
25 "Person." Any individual, corporation, company, partnership,
26 firm, association, business, establishment, organization or
27 other legal entity of any kind.
28 "Promote." To manufacture, issue, sell, give, provide,
29 advertise, produce, reproduce, lend, mail, deliver, transfer,
30 transmit, publish, distribute, circulate, disseminate, present,
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1 exhibit or advertise or to offer or agree, or possess with
2 intent, to do any of the foregoing.
3 "Prurient." A lustful, lascivious, erotic, shameful or
4 morbid interest in sexual conduct, sexually explicit nudity,
5 sadomasochistic sexual abuse or lewd exhibition of the genitals.
6 Materials or performances may be deemed to appeal to the
7 prurient interest when they have a tendency to excite lustful
8 thoughts or lascivious desires or when they are designed,
9 marketed, promoted or disseminated to cater or appeal to such an
10 interest. Where the material or performance is designed for and
11 primarily disseminated or promoted to a clearly defined deviant
12 sexual group, rather than the public at large, the prurient-
13 appeal requirement is satisfied if the dominant theme of the
14 material or performance, taken as a whole, appeals to the
15 prurient interest in sex of the members of that intended and
16 probable recipient group.
17 "Sadomasochistic sexual abuse." Actual or simulated
18 flagellation, rape, torture or other physical or sexual abuse,
19 by or upon a person who is nude or partially denuded, or the
20 condition of being fettered, bound or otherwise physically
21 restrained, for the actual or simulated purpose of sexual
22 gratification or abuse or represented in the context of a sexual
23 relationship.
24 "Sexual conduct." Ultimate sexual acts, normal or perverted,
25 actual or simulated, involving a person or persons, or a person
26 or persons and an animal, including acts of masturbation, sexual
27 intercourse, fellatio, cunnilingus, analingus or physical
28 contact with a person's nude or partially denuded genitals,
29 pubic area, perineum, anal region, or, if such person be female,
30 a breast.
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1 "Sexual device." Any artificial human penis, vagina or anus,
2 or other device primarily designed, promoted, or marketed to
3 physically stimulate or manipulate the human genitals, pubic
4 area, perineum or anal area, including dildoes, penisators,
5 vibrators, vibrillators, penis rings and erection enlargement or
6 prolonging creams, jellies or other such chemicals or
7 preparations.
8 "Sexually explicit nudity." The sexually oriented and
9 explicit showing, by any means, including but not limited to,
10 close-up views, poses or depictions in such position or manner
11 which present or expose such areas to prominent, focal or
12 obvious viewing attention, of any of the following: post-
13 pubertal, fully or partially developed, human female breast with
14 less than a fully opaque covering of any portion thereof below
15 the top of the areola or nipple; the depiction of covered human
16 male genitals in a discernible turgid state; or lewd exhibition
17 of the human genitals, pubic area, perineum, buttocks or anal
18 region, with less than a fully opaque covering.
19 "Visibly displayed." That the material or performance is
20 visible on a billboard, viewing screen, marquee, newsstand,
21 display rack, window, show case, display case or other similar
22 display area that is visible from any part of the premises where
23 a juvenile is or may be allowed, permitted or invited, as part
24 of the general public or otherwise, or that is visible from a
25 public street, sidewalk, park, alley, residence, playground,
26 school or other place to which a juvenile, as park of the
27 general public or otherwise, has unrestrained and reasonably
28 anticipated access and presence.
29 "Wholesale promote." To promote for purpose of resale.
30 § 5904.1. Disseminating matter harmful to juveniles.
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1 (a) Prohibited conduct.--No person, with knowledge of his
2 character, shall promote or otherwise furnish or present to a
3 juvenile any material or performance which is obscene or harmful
4 to juveniles, or possesses or controls any such materials with
5 the purpose or intent to violate this section.
6 (b) Affirmative defenses; nonobscene.--The following are
7 affirmative defenses to a charge under this section, involving
8 material or a performance which is harmful to juveniles but not
9 obscene:
10 (1) The juvenile exhibited to the defendant or his agent
11 or employee a draft card, driver's license, birth
12 certificate, marriage license or other governmental or
13 educational document purporting to show that such juvenile
14 was 18 years of age or over or married and the person to whom
15 such document was exhibited did not otherwise have reasonable
16 cause to believe that such juvenile was under the age of 18
17 and unmarried and did not rely solely upon the oral
18 allegations or representations of the juvenile as to his or
19 her age or marital status.
20 (2) At the time the material or performance was promoted
21 or otherwise furnished or presented to the juvenile involved,
22 a parent or lawful guardian of such juvenile, with knowledge
23 of its character, accompanied the juvenile or consented to
24 the material or performance being promoted or otherwise
25 furnished or presented to the juvenile.
26 (c) Affirmative defenses; obscene.--The following are
27 affirmative defenses to a charge under this section, involving
28 material or a performance which is obscene or harmful to
29 juveniles:
30 (1) The defendant is the parent, lawful guardian or
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1 spouse of the juvenile involved.
2 (2) The material or performance was promoted or
3 otherwise furnished or presented to the juvenile for a bona
4 fide medical, psychological, judicial or law enforcement
5 purpose by a physician, psychologist, judge, prosecutor or
6 law enforcement officer.
7 (d) Grading.--Whoever violates this section is guilty of
8 disseminating harmful matter to juveniles. If the material or
9 performance involved is harmful to juveniles but not obscene,
10 violation of this section is a misdemeanor of the first degree.
11 If the material or performance involved is obscene, violation of
12 this section is a felony of the third degree.
13 § 5905.1. Pandering obscenity.
14 (a) Prohibited conduct.--No person, with knowledge of the
15 character of the material or performance involved, shall do any
16 of the following:
17 (1) Create, photograph, produce, reproduce or publish
18 any obscene material, when the offender knows that such
19 material is to be commercially or publicly disseminated or
20 promoted or when reckless in that regard.
21 (2) Exhibit or advertise for sale or dissemination or
22 promote or otherwise publicly disseminate or display any
23 obscene material.
24 (3) Create, photograph, tape, direct, produce or
25 reproduce an obscene performance, when the offender knows
26 that it is to be commercially or publicly presented or when
27 reckless in that regard.
28 (4) Advertise an obscene performance for presentation,
29 or promote or participate in promoting an obscene
30 performance, when such performance is presented publicly, or
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1 when admission is charged, or when presented or to be
2 presented before an audience of one or more.
3 (5) Possess or control any obscene material with the
4 purpose to violate this section.
5 (6) Participate in the acting or posing for any obscene
6 material or performance, or portion thereof which is obscene,
7 when the offender knows that it is to be commercially or
8 publicly promoted or disseminated or when reckless in that
9 regard.
10 (b) Affirmative defenses.--It is an affirmative defense to a
11 charge under this section that the material or performance
12 involved was disseminated or promoted for a bona fide medical,
13 psychological, legislative, judicial or law enforcement purpose,
14 by or to a physician, psychologist, legislator, judge,
15 prosecutor, law enforcement officer or other person having such
16 a bona fide interest in such material or performance.
17 (c) Grading.--Whoever violates this section is guilty of
18 pandering obscenity, a misdemeanor of the first degree. If the
19 offender has previously been convicted of a violation of this
20 section or of section 5904.1 (relating to disseminating matters
21 harmful to juveniles), then pandering obscenity is a felony of
22 the third degree.
23 § 5906.1. Wholesale pandering obscenity.
24 (a) Prohibited conduct.--No person, with knowledge of the
25 character of the material involved, shall wholesale promote any
26 obscene material or to offer or agree, or possess with intent,
27 to wholesale promote any obscene material.
28 (b) Affirmative defenses.--It is an affirmative defense to
29 charge under this section that the material or performance
30 involved was wholesale promoted for a bona fide medical,
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1 psychological, legislative, judicial or law enforcement purpose,
2 by or to a physician, psychologist, legislator, judge,
3 prosecutor or law enforcement officer.
4 (c) Grading.--Whoever violates this section is guilty of
5 wholesale pandering obscenity, a felony of the third degree. If
6 the offender has previously been convicted of a violation of
7 this section, then wholesale pandering obscenity is a felony of
8 the second degree.
9 § 5907.1. Promoting or wholesale promoting a sexual device.
10 (a) Prohibited conduct.--No person with knowledge that the
11 device involved, is a "sexual device," shall do either of the
12 following:
13 (1) Promote, or to offer or agree, or possess with
14 intent, to promote, any sexual device.
15 (2) Wholesale promote, or to offer or agree, or possess
16 with intent, to wholesale promote, any sexual device.
17 (b) Affirmative defenses.--It is an affirmative defense to a
18 charge under this section that the sexual device was promoted or
19 wholesale promoted for a bona fide medical, psychological,
20 legislative, judicial or law enforcement purpose by or to a
21 physician, psychologist, legislator, judge, prosecutor or law
22 enforcement officer.
23 (c) Grading.--Whoever violates this section is guilty of
24 promoting or wholesale promoting a sexual device. Violation of
25 subsection (a)(1) is a misdemeanor of the second degree. If the
26 offender has previously been convicted of a violation of
27 subsection (a)(1), promoting a sexual device is a misdemeanor of
28 the first degree. Violation of subsection (a)(2) is a felony of
29 the third degree. If the offender has previously been convicted
30 of a violation of subsection (a)(2), wholesale promoting a
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1 sexual device is a felony of the second degree.
2 § 5908.1. Unlawful exhibition or display of harmful materials
3 to juveniles.
4 (a) Prohibited conduct.--No person, having custody, control
5 or supervision of any business or commercial establishment or
6 premises, with knowledge of the character of the material
7 involved, shall do any of the following:
8 (1) Allow, permit or fail to prevent any juvenile who is
9 not accompanied by a parent or lawful guardian to enter or
10 remain on premises if in that part of the premises where the
11 juvenile is or may be allowed, permitted or invited as part
12 of the general public or otherwise, there is visibly
13 displayed any material which is either of the following:
14 (i) harmful to juveniles; or
15 (ii) contains on its cover, package, wrapping or
16 within the advertisements therefor, depictions or
17 photographs of sexually explicit nudity, sexual activity
18 or sadomasochistic sexual abuse.
19 (2) Visibly display, exhibit or otherwise expose to
20 view, all or any part of such material in any business or
21 commercial establishment where juveniles, as part of the
22 general public or otherwise, are, or will probably be,
23 exposed to view all or any part of such material from any
24 public or private place.
25 (3) Hire, employ or otherwise place, supervise, control
26 or allow in any business or commercial establishment or other
27 place, any juvenile under circumstances which would cause,
28 lead or allow such juvenile to engage in the business or
29 activity of promoting, disseminating or otherwise handling
30 such material, either to or for adults or juveniles.
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1 (b) Affirmative defenses.--The following are affirmative
2 defenses to a charge under this section:
3 (1) The juvenile exhibited to the defendant or his agent
4 or employee a draft card, driver's license, birth
5 certificate, marriage license or other governmental or
6 educational document purporting to show that such juvenile
7 was 18 years of age or over or married, and the person to
8 whom such document was exhibited did not otherwise have
9 reasonable cause to believe that such juvenile was under the
10 age of 18 and unmarried and did not rely solely upon the oral
11 allegations or representations of the juvenile as to his or
12 her age or marital status or as to the knowing consent of the
13 juvenile's parent or lawful guardian.
14 (2) At the time the material was visibly displayed or
15 otherwise furnished or presented to the juvenile involved, a
16 parent or lawful guardian of such juvenile, with knowledge of
17 his character, accompanied the juvenile or consented to the
18 material being visibly displayed or otherwise furnished or
19 presented to the juvenile.
20 (3) The defendant is the parent, lawful guardian or
21 spouse of the juvenile involved.
22 (c) Grading.--Whoever violates subsection (a)(1) or (2) is
23 guilty of displaying harmful materials to juveniles, a
24 misdemeanor of the third degree. If the defender has previously
25 been convicted of a violation of these subsections, then such
26 offense is a misdemeanor of the second degree. Whoever violates
27 subsection (a)(3) is guilty of unlawfully employing a juvenile,
28 a misdemeanor of the second degree. If the offender has
29 previously been convicted of a violation of this subsection,
30 then such offense is a misdemeanor of the first degree.
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1 § 5909.1. Unlawful exhibition of harmful performances at
2 outdoor theaters.
3 (a) Prohibited conduct.--No person, having custody, control
4 or supervision of any outdoor or drive-in motion picture theater
5 or arena, with knowledge of the character of the performance
6 involved, shall knowingly present or participate in presenting,
7 the exhibition of a performance which is harmful to juveniles
8 upon any outdoor or drive-in motion picture theater or arena
9 screen, when such screen is visible and the performance is
10 visibly displayed, from a distance of less than 2,000 feet from
11 a public street, sidewalk, park, alley, residence, playground,
12 school or other such place to which juveniles, as part of the
13 general public or otherwise, have unrestrained and reasonably
14 anticipated access and presence, except between the nighttime
15 hours of 11 p.m. and 6 a.m., inclusive.
16 (b) Grading.--Whoever violates this section is guilty of
17 exhibiting a harmful performance at an outdoor theater, a
18 misdemeanor of the second degree. If the offender has previously
19 been convicted of a violation of this section, then such offense
20 is a misdemeanor of the first degree.
21 § 5910.1. Deception to obtain matter harmful to juveniles.
22 (a) Prohibited conduct by adults.--No person, for the
23 purpose of enabling a juvenile to obtain any material or gain
24 admission to any performance which is obscene or harmful to
25 juveniles, shall do either of the following:
26 (1) Falsely represent that he or she is the parent,
27 guardian or spouse of such juvenile.
28 (2) Furnish such juvenile with any identification or
29 document purporting to show that such juvenile is 18 years of
30 age or over or married.
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1 (b) Prohibited conduct by juvenile.--No juvenile, for the
2 purpose of obtaining any material or gaining admission to any
3 performance which is harmful to juveniles, shall do either of
4 the following:
5 (1) Falsely represent that he or she is 18 years of age
6 or over or married.
7 (2) Exhibit any identification or document purporting to
8 show that he or she is 18 years of age or over or married.
9 (c) Grading.--Whoever violates this section is guilty of
10 deception to obtain matter harmful to juveniles, a misdemeanor
11 of the first degree. A juvenile who violates subsection (b)
12 shall be adjudged a delinquent child, with such disposition of
13 the case as may be appropriate under the statutes applicable to
14 the juvenile courts.
15 § 5911.1. Compelling acceptance of objectionable materials.
16 (a) Prohibited conduct.--No person, as a condition to the
17 sale or delivery of any material or goods of any kind, shall,
18 over the objection of the purchaser or consignee, require the
19 purchaser or consignee to accept any other material reasonably
20 believed to be obscene or which if furnished or presented to a
21 juvenile would be harmful to juveniles.
22 (b) Grading.--Whoever violates this section is guilty of
23 compelling acceptance of objectional materials, a misdemeanor of
24 the first degree.
25 § 5912.1. Sexual exploitation of children.
26 (a) Prohibited conduct.--No person, with knowledge of the
27 character of the material or performance involved, shall employ,
28 consent to, authorize, direct or otherwise induce or allow a
29 juvenile to engage or participate in the production, filming,
30 photographing, acting, posing or other manner of making any
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1 material or performance, when the juvenile will or does engage
2 or participate in sexually explicit nudity, sexual conduct or
3 sadomasochistic sexual abuse.
4 (b) Promotion of certain material and conduct.--No person
5 with knowledge of the character of the material or performance
6 involved, shall promote or wholesale promote any material or
7 performance which includes, depicts, represents or contains a
8 juvenile engaged or participating in the acting, posing or is
9 otherwise the subject of sexually explicit nudity, sexual
10 conduct or sadomasochistic sexual abuse.
11 (c) Promotion of obscene material and conduct.--No person,
12 with knowledge of the character of the material or performance
13 involved, shall promote or wholesale promote any obscene
14 material or performance which includes, depicts, represents or
15 contains a juvenile engaged or participating in the acting,
16 posing or is otherwise the subject of sexually explicit nudity,
17 sexual conduct or sadomasochistic sexual abuse.
18 (d) Affirmative defense; deception by juvenile.--It is an
19 affirmative defense to a charge under subsection (a) that the
20 juvenile exhibited to the defendant, prior to engaging or
21 participating in the material or performance, a draft card,
22 driver's license, birth certificate or other governmental or
23 educational document purporting to show that such juvenile was
24 18 years of age or over and the defendant did not otherwise have
25 reasonable cause to believe or suspect that such juvenile was
26 under the age of 18 and did not rely solely upon the oral
27 allegations or representations of the juvenile as to his or her
28 age.
29 (e) Affirmative defense; good faith mistake.--It is an
30 affirmative defense to a charge under subsections (b) and (c)
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1 that the defendant, in good faith, had a reasonable factual
2 basis to conclude that the subject of the sexually explicit
3 nudity, sexual conduct or sadomasochistic sexual abuse was not a
4 juvenile but was in fact over the age of 18 years.
5 (f) Burden of proof.--In any prosecution or action under
6 this section, the court or jury, as trier of fact, shall make
7 the determination of whether the subject of the sexually
8 explicit nudity, sexual conduct or sadomasochistic sexual abuse
9 is, beyond a reasonable doubt, a juvenile, and the following
10 methods of proof shall be competent for the admission of direct
11 or circumstantial evidence on this issue:
12 (1) Personal inspection or testimony of the juvenile or
13 alleged juvenile.
14 (2) Testimony of the parent, lawful guardian, teacher or
15 other personal acquaintance of the juvenile or alleged
16 juvenile.
17 (3) Inspection of the material or performance involved.
18 (4) Testimony of a witness to the production, filming,
19 photographing, acting, posing or other manner of making the
20 material or performance involved or testimony of a physician,
21 scientist or other expert witness as to the age or appearance
22 of the juvenile or alleged juvenile.
23 (5) Any other method authorized by law or by the rules
24 of evidence.
25 (g) Definition.--For purposes of this section only, a
26 juvenile is any person under the age of 18 years, whether or not
27 married.
28 (h) Grading.--Whoever violates subsection (a) is guilty of
29 sexual exploitation of a juvenile, a felony of the second
30 degree. Whoever violates subsection (b) is guilty of pandering
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1 the sexual exploitation of a juvenile, a felony of the third
2 degree. Whoever violates subsection (c) is guilty of pandering
3 obscenity involving the sexual exploitation of a juvenile, a
4 felony of the second degree. If the offender has previously been
5 convicted of a violation of this section, then the degree of
6 felony of the offense shall be one degree higher than that above
7 provided for the particular subsection involved.
8 § 5913.1. Presumption and evidence of knowledge.
9 (a) Constructive notice.--An owner or manager, or his agent
10 or employee, of a bookstore, newsstand, theater, distributing
11 firm, warehouse or other commercial establishment engaged in
12 promoting materials or performances or distributing or handling
13 materials for promotion or wholesale promotion, is presumed to
14 have knowledge of the character of the material or performance
15 involved if he or she has actual or constructive notice of the
16 nature of such material or performance whether or not he or she
17 has precise knowledge of its contents.
18 (b) Conclusive evidence.--In any prosecution or action in
19 which knowledge of the character of material or a performance or
20 knowledge that a device is a "sexual device," is at issue, it is
21 conclusive evidence of such knowledge that actual notice of the
22 nature of the material was previously provided. Without
23 limitation on the manner in which such notice may be given,
24 actual notice of the character of material or a performance may
25 be given in writing by the prosecuting attorney, city director
26 of law, village, city or township attorney, or similar
27 prosecuting authority of the jurisdiction in which the person to
28 whom the notice is directed does business. Such notice,
29 regardless of the manner in which it is given, shall identify
30 the sender, identify the material or performance, state whether
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1 it is obscene or harmful to juveniles and bear the date of such
2 notice. Such notice shall also give a brief description of the
3 contents of the material or performance and indicate whether the
4 material or performance contains sexually explicit nudity,
5 sexual conduct, sadomasochistic sexual abuse or lewd exhibition
6 of the genitals or is a "sexual device."
7 (c) Relevant evidence.--In any prosecution or action in
8 which knowledge of the character of material or a performance or
9 knowledge that a device is a "sexual device," is at issue,
10 evidence of any of the following is relevant proof of such
11 knowledge:
12 (1) The sexually explicit nature and character of the
13 material or performance involved is advertised, marketed or
14 otherwise publicly exploited for the purpose of attracting
15 patrons or purchasers.
16 (2) The bookstore, newsstand, theater, distributor,
17 firm, warehouse or establishment is advertised, held out or
18 otherwise represented as possessing sexually explicit
19 materials for promotion or wholesale promotion or as
20 promoting or wholesale promoting sexually explicit
21 performances.
22 (3) The bookstore, newsstand, theater, distributor,
23 firm, warehouse or establishment is primarily engaged in
24 promoting or wholesale promoting sexually explicit materials
25 or sexually explicit performances.
26 (d) Quantum of proof.--In any prosecution or action under
27 this chapter, knowledge of the character of the material or
28 performance involved may be proven by direct or circumstantial
29 evidence, or both.
30 § 5914.1. Injunctive actions.
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1 (a) Initiation of action.--When there is reason to believe
2 that any person is violating, is about to violate, or is
3 possessing any material with intent to violate any of the
4 provisions of this chapter, the Attorney General, district
5 attorney or the attorney or prosecutor for a municipality or
6 other political subdivision may institute and maintain an action
7 for preliminary and permanent injunctive relief, to enjoin the
8 violation in an appropriate court having equitable jurisdiction.
9 No bond shall be required of such attorney bringing the action
10 and such attorney and the political subdivision shall not be
11 liable for costs or damages by reason of the injunctive orders
12 not being granted or where judgment is entered in favor of the
13 defendant by the trial or an appellate court.
14 (b) Hearing on preliminary injunction.--The court shall hold
15 the hearing on the preliminary injunction within two days, not
16 counting Saturdays, Sundays or legal holidays, after service of
17 the complaint and motion for preliminary injunction upon the
18 defendants. The court shall then issue an order granting or
19 denying the preliminary injunction within 24 hours after the
20 conclusion of the hearing. No right of jury trial shall attach
21 as of right to the hearing on a preliminary injunction but the
22 duty rests on the plaintiff to prove by satisfactory evidence
23 that the offense is being or is about to be committed. If the
24 defendants who have been served fail to appear at said hearing,
25 then a preliminary injunction shall be issued on the date of the
26 hearing.
27 (c) Permanent injunction hearing.--The court shall set the
28 matter for a hearing on the permanent injunction according to
29 the provisions of the Rules of Civil Procedure, local rules of
30 court, or other order of court. The defendant shall have the
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1 right to demand a hearing on the permanent injunction within ten
2 days of the issue or denial of the preliminary injunction.
3 Either party shall have the right of trial by jury on the issue
4 of the obscenity or harmful to juveniles nature of the material
5 or performance involved at the hearing for the permanent
6 injunction, and such jury shall render a special and separate
7 verdict as to the nature of the subject matter. The duty rests
8 on the plaintiff to prove beyond a reasonable doubt that the
9 offense is being or is about to be committed by the defendants.
10 It shall be the duty of the trier of fact to determine all
11 issues of fact concerning the obscene or harmful to juveniles
12 nature of the subject matter, including the elements of appeal
13 to prurient interest and community standards, patent
14 offensiveness and serious value, without the need for expert
15 testimony or other evidence other than the material or
16 performance itself. Expert testimony or other evidence on these
17 issues may be admitted by either party and entitled to such
18 weight as the trier of fact deems appropriate under the
19 circumstances. The court shall then issue an order granting or
20 denying the permanent injunction within five days after the
21 conclusion of the trial.
22 (d) Order of court.--In the event that the trial court
23 concludes that a permanent injunction shall issue, an order
24 shall be issued directing a law enforcement officer to seize and
25 hold all copies of the subject matter which are in the
26 possession of the defendants. Such material shall be held until
27 the exhaustion of all appellate remedies and may then be
28 destroyed or disposed of by order of the court.
29 (e) Presumptive knowledge.--For purposes of any action
30 against the defendants or further action of an equitable or
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1 criminal nature which may be instituted against the defendants
2 or any other person who has been served with the complaint or
3 order of injunction, the parties so served shall be presumed to
4 have knowledge of the character of the material or performance
5 involved. Otherwise, such knowledge may be proven by direct or
6 circumstantial evidence or any other method authorized by law
7 and the rules of evidence.
8 (f) Penalty.--Violation of a preliminary or permanent
9 injunction shall be punishable as contempt of court.
10 § 5915.1. Jury instruction; evidence of pandering.
11 The following instruction may be read to the jury in a
12 prosecution or action under this chapter:
13 "In determining the question of whether the allegedly obscene
14 material or performance involved, taken as a whole, lacks
15 serious literary, artistic, political or scientific value, the
16 jury may consider whether the material or performance has been
17 pandered, by looking to the circumstances of distribution, sale,
18 advertisement or editorial intent and particularly whether such
19 circumstances indicate that the material or performance was
20 being commercially exploited for the sake of its prurient appeal
21 and whether any social importance claimed was in the
22 circumstances pretense or reality.
23 "Such evidence is probative with respect to the nature of the
24 material or performance and if the jury concludes that the sole
25 emphasis was in the sexually provocative aspect, this can
26 justify the conclusion that the material or performance is
27 lacking in serious literary, artistic, political or scientific
28 value.
29 "The weight, if any, which such evidence is entitled is a
30 matter for the jury to determine."
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1 Section 2. Sections 5903 and 5904 of Title 18 of the
2 Pennsylvania Consolidated Statutes are repealed.
3 Section 3. This act shall take effect in 60 days.
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