§ 9.3.2.010. Definitions.

The following definitions apply in this chapter:

A.

"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 the material or performance, taken as a whole, has the following characteristics:

1.

The average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest in sex to minors; and

2.

The average adult person applying contemporary community standards would find that the material or performance depicts or describes nudity, sexual conduct, sexual excitement or sadomasochistic abuse in a manner that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors; and

3.

The material or performance lacks serious literary, scientific, artistic, or political value for minors.

B.

"Knowingly" means having general knowledge of:

1.

The character and content of any material or performance which is reasonably susceptible of examination by the defendant; and

2.

The age of the minor; however, an honest mistake shall constitute a defense from liability hereunder, if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor. The defendant shall be required to prove this defense by clear and convincing evidence.

C.

"Material" means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, record, recording tape, or video tape.

D.

"Minor" means any unmarried person under the age of eighteen (18) years.

E.

"Nudity" means the showing of the human male or female genitals, pubic area, or buttocks with less than a full opaque covering; the showing of the female breast with less than a full opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernible turgid state.

F.

"Performance" means any motion picture film, video tape, played record, phonograph or tape, preview, trailer, play, show, skit, dance, or other exhibition performed or presented to or before an audience of one (1) or more, with or without consideration.

G.

"Person" means any individual, partnership, association, corporation, or other legal entity of any kind.

H.

"Prurient" means 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 performances may be deemed to appeal to the prurient interest when they are pandered, designed, marketed, prompted, 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 to that intended and probable recipient group.

I.

"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.

J.

"Sexual conduct" means acts of masturbation, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person be a female, breast.

K.

"Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

L.

"A reasonable bona fide attempt" means an attempt to ascertain the true age of the minor by requiring production of a driver's license, marriage license, birth certificate or other governmental or educational identification card or paper and not relying solely on the oral allegations or apparent age of the minor.

(Ord. 3158, 2017; Ord. 2558 (part), 1990).