[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:
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.
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:
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.
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.
The material or performance, taken as a whole, lacks serious literary,
artistic, political or scientific value for juveniles.
Any unmarried person under the age of 18 years.
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.
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.
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:
The average person, applying contemporary community standards, would
find that the material or performance, taken as a whole, appeals to the prurient
interest.
The material or performance depicts or describes, in a patently offensive
way, sexual conduct, sadomasochistic sexual abuse or lewd exhibition of the
genitals.
The material or performance, taken as a whole, lacks serious literary,
artistic, political or scientific value.
Any individual, corporation, company, partnership, firm, association,
business, establishment, organization or other legal entity of any kind.
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.
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.
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.
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.
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.Â
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.Â
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)Â
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)Â
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.Â
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)Â
The defendant is the parent, lawful guardian or spouse
of the juvenile involved.
(2)Â
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.Â
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)Â
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:
(2)Â
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)Â
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.Â
Affirmative defenses. The following are affirmative defenses
to a charge under this section:
(1)Â
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)Â
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)Â
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.
