2010 Pennsylvania Code
Title 18 - CRIMES AND OFFENSES
Chapter 59 - Public Indecency
5903 - Obscene and other sexual materials and performances.

     § 5903.  Obscene and other sexual materials and performances.
        (a)  Offenses defined.--No person, knowing the obscene
     character of the materials or performances involved, shall:
            (1)  display or cause or permit the display of any
        explicit sexual materials as defined in subsection (c) in or
        on any window, showcase, newsstand, display rack, billboard,
        display board, viewing screen, motion picture screen, marquee
        or similar place in such manner that the display is visible
        from any public street, highway, sidewalk, transportation
        facility or other public thoroughfare, or in any business or
        commercial establishment where minors, as a part of the
        general public or otherwise, are or will probably be exposed
        to view all or any part of such materials;
            (2)  sell, lend, distribute, transmit, exhibit, give away
        or show any obscene materials to any person 18 years of age
        or older or offer to sell, lend, distribute, transmit,
        exhibit or give away or show, or have in his possession with
        intent to sell, lend, distribute, transmit, exhibit or give
        away or show any obscene materials to any person 18 years of
        age or older, or knowingly advertise any obscene materials in
        any manner;
            (3)  design, copy, draw, photograph, print, utter,
        publish or in any manner manufacture or prepare any obscene
        materials;
            (4)  write, print, publish, utter or cause to be written,
        printed, published or uttered any advertisement or notice of
        any kind giving information, directly or indirectly, stating
        or purporting to state where, how, from whom, or by what
        means any obscene materials can be purchased, obtained or
        had;
            (5)  produce, present or direct any obscene performance
        or participate in a portion thereof that is obscene or that
        contributes to its obscenity;
            (6)  hire, employ, use or permit any minor child to do or
        assist in doing any act or thing mentioned in this
        subsection;
            (7)  knowingly take or deliver in any manner any obscene
        material into a State correctional institution, county
        prison, regional prison facility or any other type of
        correctional facility;
            (8)  possess any obscene material while such person is an
        inmate of any State correctional institution, county prison,
        regional prison facility or any other type of correctional
        facility; or
            (9)  knowingly permit any obscene material to enter any
        State correctional institution, county prison, regional
        prison facility or any other type of correctional facility if
        such person is a prison guard or other employee of any
        correctional facility described in this paragraph.
        (a.1)  Dissemination of explicit sexual material via an
     electronic communication.--No person, knowing the content of the
     advertisement to be explicit sexual materials as defined in
     subsection (c)(1) and (2), shall transmit or cause to be
     transmitted an unsolicited advertisement in an electronic
     communication as defined in section 5702 (relating to
     definitions) to one or more persons within this Commonwealth
     that contains explicit sexual materials as defined in subsection
     (c)(1) and (2) without including in the advertisement the term
     "ADV-ADULT" at the beginning of the subject line of the
     advertisement.
        (b)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Community."  For the purpose of applying the "contemporary
     community standards" in this section, community means the State.
        "Knowing."  As used in subsections (a) and (a.1), knowing
     means having general knowledge of, or reason to know or a belief
     or ground for belief which warrants further inspection or
     inquiry of, the character and content of any material or
     performance described therein which is reasonably susceptible of
     examination by the defendant.
        "Material."  Any literature, including any book, magazine,
     pamphlet, newspaper, storypaper, bumper sticker, comic book or
     writing; any figure, visual representation, or image, including
     any drawing, photograph, picture, videotape or motion picture.
        "Nude."  Means showing the human male or female genitals,
     pubic area or buttocks with less than a fully opaque covering,
     or showing the female breast with less than a fully opaque
     covering of any portion thereof below the top of the nipple.
        "Obscene."  Any material or performance, if:
            (1)  the average person applying contemporary community
        standards would find that the subject matter taken as a whole
        appeals to the prurient interest;
            (2)  the subject matter depicts or describes in a
        patently offensive way, sexual conduct of a type described in
        this section; and
            (3)  the subject matter, taken as a whole, lacks serious
        literary, artistic, political, educational or scientific
        value.
        "Performance."  Means any play, dance or other live
     exhibition performed before an audience.
        "Sadomasochistic abuse."  Means, in a sexual context,
     flagellation or torture by or upon a person who is nude or clad
     in undergarments, a mask or in a bizarre costume or the
     condition of being fettered, bound or otherwise physically
     restrained on the part of one who is nude or so clothed.
        "Sexual conduct."  Patently offensive representations or
     descriptions of ultimate sexual acts, normal or perverted,
     actual or simulated, including sexual intercourse, anal or oral
     sodomy and sexual bestiality; and patently offensive
     representations or descriptions of masturbation, excretory
     functions, sadomasochistic abuse and lewd exhibition of the
     genitals.
        "Subject line."  The area of an electronic communication that
     contains a summary description of the content of the message.
        "Transportation facility."  Any conveyance, premises or place
     used for or in connection with public passenger transportation,
     whether by air, rail, motor vehicle or any other method,
     including aircraft, watercraft, railroad cars, buses, and air,
     boat, railroad and bus terminals and stations.
        (c)  Dissemination to minors.--No person shall knowingly
     disseminate by sale, loan or otherwise explicit sexual materials
     to a minor. "Explicit sexual materials," as used in this
     subsection, means materials which are obscene or:
            (1)  any picture, photograph, drawing, sculpture, motion
        picture film, videotape or similar visual representation or
        image of a person or portion of the human body which depicts
        nudity, sexual conduct, or sadomasochistic abuse and which is
        harmful to minors; or
            (2)  any book, pamphlet, magazine, printed matter however
        reproduced, or sound recording which contains any matter
        enumerated in paragraph (1), or explicit and detailed verbal
        descriptions or narrative accounts of sexual excitement,
        sexual conduct, or sadomasochistic abuse and which, taken as
        a whole, is harmful to minors.
        (d)  Admitting minor to show.--It shall be unlawful for any
     person knowingly to exhibit for monetary consideration to a
     minor or knowingly to sell to a minor an admission ticket or
     pass or knowingly to admit a minor for a monetary consideration
     to premises whereon there is exhibited, a motion picture show or
     other presentation or performance which, in whole or in part,
     depicts nudity, sexual conduct, or sadomasochistic abuse and
     which is harmful to minors, except that the foregoing shall not
     apply to any minor accompanied by his parent.
        (e)  Definitions.--As used in subsections (c) and (d) of this
     section:
            (1)  "Minor" means any person under the age of 18 years.
            (2)  "Nudity" means the showing of the human male or
        female genitals, pubic area, or buttocks with less than a
        fully opaque covering, or the showing of the female breast
        with less than a fully opaque covering of any portion thereof
        below the top of the nipple, or the depiction of covered male
        genitals in a discernibly turgid state.
            (3)  "Sexual conduct" means acts of masturbation,
        homosexuality, sexual intercourse, sexual bestiality or
        physical contact with a person's clothed or unclothed
        genitals, pubic area, buttocks or, if such person be a
        female, breast.
            (4)  "Sexual excitement" means the condition of human
        male or female genitals when in a state of sexual stimulation
        or arousal.
            (5)  "Sadomasochistic abuse" means flagellation or
        torture by or upon a person clad in undergarments, a mask or
        bizarre costume, or the condition of being fettered, bound or
        otherwise physically restrained on the part of one so
        clothed.
            (6)  "Harmful to minors" means that quality of any
        description or representation, in whatever form, of nudity,
        sexual conduct, sexual excitement, or sadomasochistic abuse,
        when it:
                (i)  predominantly appeals to the prurient, shameful,
            or morbid interest of minors; and
                (ii)  is patently offensive to prevailing standards
            in the adult community as a whole with respect to what is
            suitable material for minors; and
                (iii)  taken as a whole, lacks serious literary,
            artistic, political, educational or scientific value for
            minors.
            (7)  "Knowingly" means having general knowledge of, or
        reason to know, or a belief or ground for belief which
        warrants further inspection or inquiry of both:
                (i)  the character and content of any material or
            performance described herein which is reasonably
            susceptible of examination by the defendant; and
                (ii)  the age of the minor: Provided, however, That
            an honest mistake shall constitute an excuse from
            liability hereunder if the defendant made a reasonable
            bona fide attempt to ascertain the true age of such
            minor.
        (f)  Requiring sale as condition of business dealings.--No
     person shall knowingly require any distributor or retail seller
     as a condition to sale or delivery for resale or consignment of
     any literature, book, magazine, pamphlet, newspaper, storypaper,
     paper, comic book, writing, drawing, photograph, videotape,
     figure or image, or any written or printed matter, or any
     article or instrument to purchase or take by consignment for
     purposes of sale, resale or distribution any obscene literature,
     book, magazine, pamphlet, newspaper, storypaper, paper, comic
     book, writing, drawing, photograph, videotape, figure or image,
     or any written or printed matter of an obscene nature or any
     article or instrument of an obscene nature.
        (g)  Injunction.--The attorney for the Commonwealth may
     institute proceedings in equity in the court of common pleas of
     the county in which any person violates or clearly is about to
     violate this section for the purpose of enjoining such
     violation. The court shall issue an injunction only after
     written notice and hearing and only against the defendant to the
     action. The court shall hold a hearing within three days after
     demand by the attorney for the Commonwealth, one of which days
     must be a business day for the court, and a final decree shall
     be filed in the office of the prothonotary within 24 hours after
     the close of the hearing. A written memorandum supporting the
     decree shall be filed within five days of the filing of the
     decree. The attorney for the Commonwealth shall prove the
     elements of the violation beyond a reasonable doubt. The
     defendant shall have the right to trial by jury at the said
     hearing.
        (h)  Criminal prosecution.--
            (1)  Any person who violates subsection (a), (a.1) or (f)
        is guilty of a misdemeanor of the first degree. Violation of
        subsection (a) is a felony of the third degree if the
        offender has previously been convicted of a violation of
        subsection (a) or if the material was sold, distributed,
        prepared or published for the purpose of resale.
            (2)  Any person who violates subsection (c) or (d) is
        guilty of a felony of the third degree. Violation of
        subsection (c) or (d) is a felony of the second degree if the
        offender has previously been convicted of a violation of
        subsection (c) or (d).
            (3)  Findings made in an equity action shall not be
        binding in the criminal proceedings.
        (i)  Right to jury trial.--The right to trial by jury shall
     be preserved in all proceedings under this section.
        (j)  Exemptions.--Nothing in this section shall apply to any
     recognized historical society or museum accorded charitable
     status by the Federal Government, any county, city, borough,
     township or town library, any public library, any library of any
     school, college or university or any archive or library under
     the supervision and control of the Commonwealth or a political
     subdivision.
        (k)  Ordinances or resolutions.--Nothing in this chapter
     shall be construed to invalidate, supersede, repeal or preempt
     any ordinance or resolution of any political subdivision insofar
     as it is consistent with this chapter, and political
     subdivisions further retain the right to regulate any
     activities, displays, exhibitions or materials not specifically
     regulated by this chapter.
        (l)  Penalty for attempt to evade prosecution.--Any person
     who violates subsection (a.1) and attempts to avoid prosecution
     by knowingly including false or misleading information in the
     return address portion of the electronic communications such
     that the recipient would be unable to send a reply message to
     the original, authentic sender shall, in addition to any other
     penalty imposed, upon conviction, be sentenced to pay a fine of
     not less than $100 nor more than $500 per message or to
     imprisonment for not more than 90 days, or both, for a first
     offense and a fine of not less than $500 nor more than $1,000 or
     to imprisonment for not more than one year, or both, for a
     second or subsequent offense.
        (m)  Concurrent jurisdiction to prosecute.--The Attorney
     General shall have the concurrent prosecutorial jurisdiction
     with the district attorney for cases arising under subsection
     (a.1) and may refer to the district attorney, with the district
     attorney's consent, any violation or alleged violation of
     subsection (a.1) which may come to the Attorney General's
     attention.
     (Nov. 5, 1977, P.L.221, No.68, eff. 60 days; Oct. 16, 1980,
     P.L.978, No.167, eff. 60 days; Dec. 19, 1990, P.L.1332, No.207,
     eff. imd.; June 18, 1998, P.L.534, No.76, eff. 60 days; June 13,
     2000, P.L.130, No.25, eff. 60 days; Dec. 20, 2000, P.L.721,
     No.98, eff. imd.)

        2000 Amendments.  Act 25 amended subsecs. (a), (b) and (h)(1)
     and added subsecs. (a.1), (l) and (m) and Act 98 amended subsec.
     (h)(2). See the preamble to Acts 25 and 98 in the appendix to
     this title for special provisions relating to legislative
     findings and declarations. Section 3(1) of Act 98 provided that
     the amendment of section 5903 shall apply to offenses committed
     on or after the effective date of Act 98.
        Cross References.  Section 5903 is referred to in sections
     5708, 6318, 9122 of this title; section 3304 of Title 5
     (Athletics and Sports); section 4102 of Title 12 (Commerce and
     Trade); section 6344 of Title 23 (Domestic Relations); sections
     9718.1, 9795.1 of Title 42 (Judiciary and Judicial Procedure);
     section 2303 of Title 44 (Law and Justice); section 2905 of
     Title 66 (Public Utilities); section 7122 of Title 61 (Prisons
     and Parole).

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