2006 Kansas Code - 21-4301

      21-4301.   Promoting obscenity. (a) Promoting obscenity is knowingly or recklessly:

      (1)   Manufacturing, issuing, selling, giving, providing, lending, mailing, delivering, transmitting, publishing, distributing, circulating, disseminating, presenting, exhibiting or advertising any obscene material or obscene device;

      (2)   possessing any obscene material or obscene device with intent to issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise such material or device;

      (3)   offering or agreeing to manufacture, issue, sell, give, provide, lend, mail, deliver, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise any obscene material or obscene device; or

      (4)   producing, presenting or directing an obscene performance or participating in a portion thereof which is obscene or which contributes to its obscenity.

      (b)   Evidence that materials or devices were promoted to emphasize their prurient appeal or sexually provocative aspect shall be relevant in determining the question of the obscenity of such materials or devices. There shall be a presumption that a person promoting obscene materials or obscene devices did so knowingly or recklessly if:

      (1)   The materials or devices were promoted to emphasize their prurient appeal or sexually provocative aspect; or

      (2)   the person is not a wholesaler and promotes the materials or devices in the course of the person's business.

      (c) (1)   Any material or performance is "obscene" if:

      (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 average person applying contemporary community standards would find that the material or performance has patently offensive representations or descriptions of (i) ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse or sodomy, or (ii) masturbation, excretory functions, sadomasochistic abuse or lewd exhibition of the genitals; and

      (C)   taken as a whole, a reasonable person would find that the material or performance lacks serious literary, educational, artistic, political or scientific value.

      (2)   "Material" means any tangible thing which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or other manner.

      (3)   "Obscene device" means a device, including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs, except such devices disseminated or promoted for the purpose of medical or psychological therapy.

      (4)   "Performance" means any play, motion picture, dance or other exhibition performed before an audience.

      (5)   "Sexual intercourse" and "sodomy" have the meanings provided by K.S.A. 21-3501 and amendments thereto.

      (6)   "Wholesaler" means a person who sells, distributes or offers for sale or distribution obscene materials or devices only for resale and not to the consumer and who does not manufacture, publish or produce such materials or devices.

      (d)   It is a defense to a prosecution for obscenity that:

      (1)   The persons to whom the allegedly obscene material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational or governmental justification for possessing or viewing the same;

      (2)   the defendant is an officer, director, trustee or employee of a public library and the allegedly obscene material was acquired by such library and was disseminated in accordance with regular library policies approved by its governing body; or

      (3)   the allegedly obscene material or obscene device was purchased, leased or otherwise acquired by a public, private or parochial school, college or university, and that such material was either sold, leased, distributed or disseminated by a teacher, instructor, professor or other faculty member or administrator of such school as part of or incident to an approved course or program of instruction at such school.

      (e)   The provisions of this section and the provisions of ordinances of any city prescribing a criminal penalty for exhibit of any obscene motion picture shown in a commercial showing to the general public shall not apply to a projectionist, or assistant projectionist, if such projectionist or assistant projectionist has no financial interest in the show or in its place of presentation other than regular employment as a projectionist or assistant projectionist and no personal knowledge of the contents of the motion picture. The provisions of this section shall not exempt any projectionist or assistant projectionist from criminal liability for any act unrelated to projection of motion pictures in commercial showings to the general public.

      (f) (1)   Promoting obscenity is a class A nonperson misdemeanor on conviction of a first offense.

      (2)   Promoting obscenity is a severity level 9, person felony on conviction of a second or subsequent offense.

      (3)   Conviction of a violation of a municipal ordinance prohibiting acts which constitute promoting obscenity shall be considered a conviction of promoting obscenity for the purpose of determining the number of prior convictions and the classification of the crime under this section.

      (g)   Upon any conviction of promoting obscenity, the court may require, in addition to any fine or imprisonment imposed, that the defendant enter into a reasonable recognizance with good and sufficient surety, in such sum as the court may direct, but not to exceed $50,000, conditioned that, in the event the defendant is convicted of a subsequent offense of promoting obscenity within two years after such conviction, the defendant shall forfeit the recognizance.

      History:   L. 1969, ch. 180, § 21-4301; L. 1970, ch. 128, § 1; L. 1976, ch. 159, § 1; L. 1980, ch. 98, § 2; L. 1986, ch. 121, § 3; L. 1988, ch. 114, § 1; L. 1992, ch. 239, § 210; L. 1993, ch. 253, § 12; L. 1994, ch. 291, § 42; July 1.

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