21-4301c. Promotion to minors of obscenity harmful to minors.
21-4301c
21-4301c. Promotion to minors of obscenity harmful to minors.(a) No person having custody, control or supervision of anycommercial establishment shall knowingly:
(1) Display any material which is harmful to minors in such a waythat minors, as a part of the invited general public, will be exposed toview such material or device;
(2) sell, furnish, present, distribute or disseminate to aminor, or otherwise allowing a minor to view, with or without consideration,any material which is harmful to minors; or
(3) present to a minor, or participate in presenting to a minor,with or without consideration, any performance which is harmful to a minor.
(b) Violation of subsection (a) is a classBnonperson misdemeanor.
(c) Notwithstanding the provisions of K.S.A. 21-3202 and amendments theretotothe contrary, it shall be an affirmative defense to any prosecution underthis section that:
(1) The allegedly harmful material or device was purchased, leased orotherwise acquired by a public, private or parochial school, college oruniversity, and that such material or device was either sold, leased,distributed or disseminated by a teacher, instructor, professor or otherfaculty member or administrator of such school as part of or incidental to anapproved course or program of instruction at such school.
(2) The defendant is an officer, director, trustee or employee of apublic library and the allegedly harmful material or device was acquired bya public library and was disseminated in accordance with regular librarypolicies approved by its governing body.
(3) An exhibition in a state of nudity is for a bona fide scientific ormedical purpose, or for an educational or cultural purpose for a bona fideschool, museum or library.
(4) With respect to a prosecution for an act described by subsection(a)(1), the allegedly harmful material was kept behind blinder racks.
(5) With respect to a prosecution for an act described by subsection(a)(2) or (3), the defendant had reasonable cause to believe that the minorinvolved was 18 years old or over, and such minor exhibited to thedefendant a draft card, driver's license, birth certificate or otherofficial or apparently official document purporting to establish that suchminor was 18 years old or more.
(6) With respect to a prosecution for an act described by subsection(a)(3), the allegedly harmful performance was viewed by the minor in thepresence of such minor's parent or parents or such minor's legal guardian.
(d) As used in this section:
(1) "Blinder rack" means a device in which material is displayed in sucha manner that the lower 2/3 of the material is not exposed to view.
(2) "Harmful to minors" means that quality of any description,exhibition, presentation or representation, in whatever form, of nudity,sexual conduct, sexual excitement or sadomasochistic abuse when thematerial or performance, taken as a wholeor, with respect to a prosecution for an act described by subsection(a)(1), that portion of the material that was actually exposed to the viewof minors,has the following characteristics:
(A) The average adult person applying contemporary community standardswould find that the material or performance has a predominant tendency toappeal to a prurient interest in sex to minors;
(B) the average adult person applying contemporary community standardswould find that the material or performance depicts or describes nudity,sexual conduct, sexual excitement or sadomasochistic abuse in a manner thatis patently offensive to prevailing standards in the adult community withrespect to what is suitable for minors; and
(C) a reasonable person would find that the material or performancelacks serious literary, scientific,educational, artistic or political value for minors.
(3) "Material" means any book, magazine, newspaper, pamphlet, poster,print, picture, figure, image, description, motion picture film, record,recording tape or video tape.
(4) "Minor" means any unmarried person under 18 years of age.
(5) "Nudity" means the showing of the human male or female genitals,pubic area or buttocks with less than a full opaque covering; the showingof the female breast with less than a full opaque covering of any portionthereof below the top of the nipple; or the depiction of covered malegenitals in a discernible state of sexual excitement.
(6) "Performance" means any motion picture, film, video tape, playedrecord, phonograph, tape recording, preview, trailer, play, show, skit,dance or other exhibition performed or presented to or before an audienceof one or more, with or without consideration.
(7) "Sadomasochistic abuse" means flagellation or torture by or upon aperson clad in undergarments, in a mask or bizarre costume or in the conditionof being fettered, bound or otherwise physically restrained on the part of one so clothed.
(8) "Sexual conduct" means acts of masturbation, homosexuality, sexualintercourse or physical contact with a person's clothed or unclothedgenitals or pubic area or buttocks or with a human female's breast.
(9) "Sexual excitement" means the condition of human male or femalegenitals when in a state of sexual stimulation or arousal.
(e) The provisions of this act shall not apply to a retail sales clerk, ifsuch clerk has no financial interest in the materials or performance or inthe commercial establishment displaying or selling, furnishing, presenting,distributing or disseminating such materials or presenting such performanceother than regular employment as a retail sales clerk. Theprovisions of this section shall not exempt any retail sales clerk fromcriminal liability for any act unrelated to regular employment as a retail sales clerk.
(f) If any provision or clause of this act or application thereof to anyperson or circumstance is held invalid, such invalidity shall not affectother provisions or applications of the act which can be given effectwithout the invalid provision or application, and to this end theprovisions of this act are declared to be severable.
(g) This section shall be part of and supplemental to the Kansas criminalcode.
History: L. 1988, ch. 112, § 1;L. 1992, ch. 239, § 212;L. 1993, ch. 291, § 160; July 1.