Borough of Waynesboro, PA
Franklin County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Borough Council of the Borough of Waynesboro 10-1-1980 by Ord. No. 865 (Ch. XIV, Part 6 of the 1970 Code). Amendments noted where applicable.]
The following words and phrases when used in this chapter shall have, unless the contents clearly indicates otherwise, the meanings given them in this section:
COMMUNITY
When used in connection with "contemporary community standards" means the geographical area within the jurisdiction of the court or vicinage of the jury hearing the case, whichever is larger.
HARMFUL TO JUVENILES
Any material or performance, whether through pictures, photographs, drawings, writings, cartoons, recordings, films, video tapes or other such medium is harmful to juveniles if all of the following apply:
A. 
The average person, applying contemporary community standards, would find that the material or performance, taken as a whole, has a tendency to excite lustful or erotic thoughts in juveniles, or which caters or appeals to a prurient interest.
B. 
The material or performance depicts or describes sexually explicit nudity, sexual conduct, sadomasochistic sexual abuse or lewd exhibition of the genitals, in a way which is patently offensive to prevailing standards in the adult community with respect to what is suitable for juveniles.
C. 
The material or performance, taken as a whole, lacks serious literary, artistic, political or scientific value for juveniles.
JUVENILE
Any unmarried person under the age of 18 years.
KNOWLEDGE OF CHARACTER
Having general knowledge or reason to know, or a belief or ground for belief which warrants further inspection or inquiry, of the nature and character of the material or performance involved. A person has such knowledge when he or she knows or is aware that the material or performance contains, depicts or describes sexually explicit nudity, sexual activity, sadomasochistic sexual abuse or lewd exhibition of the genitals, whichever is applicable, whether or not such person has precise knowledge of the specific contents thereof. Such knowledge may be proven by direct or circumstantial evidence, or both.
MATERIAL
Any book, magazine, newspaper, advertisement, pamphlet, poster, print, picture, figure, image, drawing, description, motion picture film, phonographic record or recording tape, video tape or other tangible thing capable or producing or reproducing an image, picture, sound or sensation through sight, sound or touch.
OBSCENE
Any material or performance, whether through pictures, photographs, drawings, writings, cartoons, recordings, films, video tapes or other such medium is "obscene" if all of the following apply:
A. 
The average person, applying contemporary community standards, would find that the material or performance, taken as a whole, appeals to the prurient interest.
B. 
The material or performance depicts or describes, in a patently offensive way, sexual conduct, sadomasochistic sexual abuse or lewd exhibition of the genitals.
C. 
The material or performance, taken as a whole, lacks serious literary, artistic, political or scientific value.
PERSON
Any individual, corporation, company, partnership, firm, association, business, establishment, organization or other legal entity of any kind.
PRURIENT
A lustful, lascivious, erotic, shameful or morbid interest in sexual conduct, sexually explicit nudity, sadomasochistic sexual abuse or lewd exhibition of the genitals. Materials or performance may be deemed to appeal to the prurient interest when they have a tendency to excite lustful thoughts or lascivious desires or when they are designed, marketed, promoted or disseminated to cater or appeal to such an interest. Where the material or performance is designed for and primarily disseminated or promoted to a clearly defined deviant sexual group, rather than the public at large, the prurient, appeal requirement is satisfied if the dominant theme of the material or performance, taken as a whole, appeals to the prurient interest in sex of the members of that intended and probable recipient group.
SADOMASOCHISTIC SEXUAL ABUSE
Actual or simulated flagellation, rape, torture or other physical or sexual abuse, by or upon a person who is nude or partially denuded, or the condition of being fettered, bound or otherwise physically restrained, for the actual or simulated purpose of sexual gratification or abuse or represented in the context of a sexual relationship.
SEXUAL CONDUCT
Ultimate sexual acts, normal or perverted, actual or simulated, involving a person or persons, or a person or persons and an animal, including acts of masturbation, sexual intercourse, fellatio, cunnilingus, analingus or physical contact with a person's nude or partially denuded genitals, pubic area, perineum, anal region, or, if such person be female, a breast.
SEXUALLY EXPLICIT NUDITY
The sexually oriented and explicit showing, by any means, including but not limited to, close-up views, poses or depictions in such position or manner which present or expose such areas to prominent, focal or obvious viewing attention, of any of the following: postpubertal, fully of partially developed, human female breast with less than a fully opaque covering of any portion thereof below the top of the areola or nipple; the depiction of covered human male genitals in a discernible turgid state; or lewd exhibition of the human genitals, pubic area, perineum, buttocks or anal region, with less than fully opaque covering.
VISIBLY DISPLAYED
That the material or performance is visible on a billboard, viewing screen, marquee, newsstand, display rack, window, show case, display case or other similar display area that is visible from any part of the premises where a juvenile is or may be allowed, permitted or invited, as part of the general public or that is visible from a public street, sidewalk, park, alley, residence, playground, school or other place to which a juvenile, as part of the general public or otherwise, has unrestrained and reasonably anticipated access and presence.
A. 
Prohibited conduct. No person, with knowledge of its character shall promote or otherwise furnish or present to a juvenile any material which is obscene or harmful to juveniles or possess or control any such materials with the purpose or intent to violate this section.
B. 
Affirmative defenses: nonobscene. The following are affirmative defenses to a charge under this section, involving material or a performance which is harmful to juveniles but not obscene:
(1) 
The juvenile exhibited to the defendant or his agent or employee a draft card, driver's license birth certificate, marriage license or other governmental or educational document purporting to show that such juvenile was 18 years of age or over or married, and the person to whom such document was exhibited did not otherwise have reasonable cause to believe that such juvenile was under the age of 18 and unmarried and did not rely solely upon the oral allegations or representations of the juvenile as to his or her age or marital status.
(2) 
At the time the material or performance was promoted or otherwise furnished or presented to the juvenile involved, a parent or lawful guardian of such juvenile, with knowledge of its character, accompanied the juvenile or consented to the material or performance being promoted or otherwise furnished or presented to the juvenile.
C. 
Affirmative defenses: obscene. The following are affirmative defenses to a charge under this section, involving material or a performance which is obscene or harmful to juveniles.
(1) 
The defendant is the parent, lawful guardian or spouse of the juvenile involved.
(2) 
The material or performance was promoted or otherwise furnished or presented to the juvenile for a bona fide medical, psychological, judicial or law enforcement purpose by a physician, psychologist, judge, prosecutor or law enforcement officer.
A. 
Prohibited conduct. No person, having custody, control or supervision of any business or commercial establishment or premises, with knowledge of the character of the materials involved, shall do any of the following:
(1) 
Allow, permit or fail to prevent any juvenile who is not accompanied by a parent or lawful guardian to enter or remain on premises if in that part of the premises where the juvenile is or may be allowed, permitted or invited as part of the general public or otherwise, there is visibly displayed any material which is either of the following:
(a) 
Harmful to juveniles; or
(b) 
Contains in its cover, package, wrapping or within the advertisements therefore, depictions or photographs of sexually explicit nudity, sexual conduct or sadomasochistic sexual abuse.
(2) 
Visibly display, exhibit or otherwise expose to view, all or any part of such material in any business or commercial establishment where juveniles, as part of the general public or otherwise, are, or will probably be, exposed to view all or any part of such material from any public or private place.
(3) 
Hire, employ or otherwise place, supervise, control or allow in any business or commercial establishment or other place, any juvenile under circumstances which would cause, lead or allow such juvenile to engage in the business or activity of promoting, disseminating or otherwise handling such material, either to or for adults or juveniles.
B. 
Affirmative defenses. The following are affirmative defenses to a charge under this section:
(1) 
The juvenile exhibited to the defendant or his agent or employee a draft card, driver's license, birth certificate, marriage license or other governmental or educational document purporting to show that such juvenile was 18 years of age or over or married, and the person to whom such document was exhibited did not otherwise have reasonable cause to believe that such juvenile was under the age of 18 and unmarried and did not rely solely upon the oral allegations or representations of the juvenile as to his or her age or marital status or as to the knowing consent of the juvenile's parent or lawful guardian.
(2) 
At the time the material was visibly displayed or otherwise furnished or presented to the juvenile, with knowledge of its character, accompanied the juvenile or consented to the material being visibly displayed or otherwise furnished or presented to the juvenile.
(3) 
The defendant is the parent, lawful guardian or spouse of the juvenile involved.
Constructive notice. An owner or manager, or his agent or employee, of a bookstore, newsstand, theater, distributing firm, warehouse or other commercial establishment engaged in promoting materials or distributing or handling materials for promotion of wholesale promotion, is presumed to have knowledge of the character of the material involved if he or she has actual or constructive notice of the nature of such material or performance whether of not he or she has precise knowledge of its contents.
Any person violating the provisions of this chapter shall, upon conviction thereof, be sentenced to pay a fine of $100 together with the cost of prosecution for the first offense, be sentenced to pay a fine of $250 together with the cost of prosecution for the second offense, be sentenced to pay a fine of $500 together with the cost of prosecution for the third offense and any subsequent offense the same to be collected as fines and penalties are now collectible. Any person convicted of violating the provisions of this chapter shall, in default of paying the fine and costs of prosecution, undergo imprisonment for a period not to exceed 10 days for each offense. Whenever any such person shall have been notified, in any official manner, that they have committed a violation of this chapter, each day's continuance of such violation; after such notification; shall constitute a separate offense punishable by a like fine or penalty.