21-4301. Promoting obscenity.
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 anyobscene material or obscene device;
(2) possessing any obscene material or obscene device withintent to issue, sell,give, provide, lend, mail, deliver, transfer, transmit, publish,distribute, circulate, disseminate, present, exhibit or advertise suchmaterial 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 obscenedevice; or
(4) producing, presenting or directing an obscene performance orparticipating in a portion thereof which is obscene or which contributesto its obscenity.
(b) Evidence that materials or devices were promoted toemphasize their prurientappeal shall be relevant in determiningthe question of the obscenity of such materials ordevices. There shall be apresumption that a person promoting obscenematerials or obscene devices did so knowingly orrecklessly if:
(1) The materials or devices were promoted to emphasize theirprurientappeal; or
(2) the person is not a wholesaler and promotes the materials ordevices in the course of theperson's business.
(c) (1) Any material or performance is "obscene" if:
(A) The averageperson applying contemporary community standards would find thatthe material or performance, taken as a whole, appeals to the prurientinterest;
(B) the average person applying contemporary communitystandardswould find that the material or performance has patently offensiverepresentations or descriptions of (i) ultimate sexual acts, normalorperverted, actual or simulated, including sexual intercourse or sodomy, or (ii)masturbation, excretory functions, sadomasochistic abuse orlewd exhibition of the genitals; and
(C) taken as a whole, a reasonableperson would find that the material or performance lacksserious literary, educational, artistic, political or scientific value.
(2) "Material" means any tangible thing which is capable ofbeingused or adapted to arouse interest, whether through the medium ofreading, observation, sound or other manner.
(3) "Obscene device" means a device, including a dildo orartificialvagina, designed or marketed as useful primarily for the stimulation ofhuman genital organs, except such devices disseminated or promoted for thepurpose of medical or psychological therapy.
(4) "Performance" means any play, motion picture, dance or otherexhibition performed before an audience.
(5) "Sexual intercourse" and "sodomy" have the meanings providedby K.S.A. 21-3501 and amendments thereto.
(6) "Wholesaler" means a person who sells, distributes or offersforsale or distribution obscene materials or devices only for resale and notto the consumer and who does not manufacture, publish or produce suchmaterials or devices.
(d) It is a defense to a prosecution for obscenity that:
(1) The personsto whom the allegedly obscene material was disseminated, or the audienceto an allegedly obscene performance, consisted of persons orinstitutions having scientific, educational or governmental justificationfor possessing or viewing the same;
(2) the defendant is an officer, director, trustee or employeeof a publiclibrary and the allegedly obscene material was acquired by such libraryand was disseminated in accordance with regular library policies approvedby its governing body; or
(3) the allegedly obscene material or obscene device waspurchased,leased or otherwiseacquired by a public, private or parochial school, college or university,and that such material was either sold, leased, distributed or disseminatedby a teacher, instructor, professor or other faculty member or administratorof such school as part of or incident to an approved course or program ofinstruction at such school.
(e) The provisions of this section and the provisions ofordinancesof any city prescribing a criminal penalty for exhibit of any obscenemotion picture shown in a commercial showing to the general public shallnot apply to a projectionist, or assistant projectionist, if such projectionistor assistant projectionist has no financial interest in the show or in itsplace ofpresentation other than regular employment as a projectionist orassistant projectionist and no personal knowledge of the contents of themotion picture. The provisions of this section shall notexempt any projectionist or assistant projectionist from criminalliability for any act unrelated to projection of motion pictures incommercial showings to the general public.
(f) (1) Promoting obscenity is a class Anonperson 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 prohibitingacts which constitute promoting obscenity shall be considered a convictionof promoting obscenity for the purpose of determining the number of priorconvictions and the classification of the crime under this section.
(g) Upon any conviction of promoting obscenity, the court mayrequire, in addition to any fine or imprisonment imposed, that thedefendant enter into a reasonable recognizance with good and sufficientsurety, in such sum as the court may direct, but not to exceed $50,000,conditioned that, in the eventthe defendant is convicted of a subsequent offense of promotingobscenity within two years after such conviction, the defendantshall 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;L. 2006, ch. 211, § 5; July 1.