06 LC
37 0101
Senate
Bill 631
By:
Senator Wiles of the 37th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Part 1 of Article 3 of Chapter 12 of Title 16 of the Official Code of
Georgia Annotated, relating to obscenity and related offenses, so as to repeal
certain provisions regarding distributing obscene material, definition of
obscene material, and penalty; to provide for the offense of distribution of
obscene material; to provide for affirmative defenses; to provide for a criminal
penalty; to provide for applicability; to provide an effective date; to repeal
conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Part
1 of Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia
Annotated, relating to obscenity and related offenses, is amended by repealing
in its entirety Code Section 16-12-80, relating to the offense of distributing
obscene material, definition of obscene material, and penalty.
SECTION
2.
Said
part is further amended by adding a new Code Section 16-12-80 to read as
follows:
"16-12-80.
(a)
A person commits the offense of distributing obscene material when he or she
sells, lends, rents, leases, gives, advertises, publishes, exhibits, or
otherwise disseminates to any person any obscene material of any description,
knowing the obscene nature thereof, or offers to do so, or possesses such
material with the intent to do so, provided that the word 'knowing,' as used in
this Code section, shall be deemed to be either actual or constructive knowledge
of the obscene contents of the subject matter; and a person has constructive
knowledge of the obscene contents if he or she has knowledge of facts which
would put a reasonable and prudent person on notice as to the suspect nature of
the material; provided, however, that the character and reputation of the
individual charged with an offense under this law, and, if a commercial
dissemination of obscene material is involved, the character and reputation of
the business establishment involved may be placed in evidence by the defendant
on the question of intent to violate this law. Undeveloped photographs, molds,
printing plates, and the like shall be deemed obscene notwithstanding that
processing or other acts may be required to make the obscenity patent or to
disseminate it.
(b)
Material is obscene if:
(1)
To the average person, applying contemporary community standards, taken as a
whole, it predominantly appeals to the prurient interest, that is, a shameful or
morbid interest in nudity, sex, or excretion;
(2)
The material taken as a whole lacks serious literary, artistic, political, or
scientific value; and
(3)
The material depicts or describes, in a patently offensive way, sexual conduct
specifically defined in subparagraphs (A) through (E) of this
paragraph:
(A)
Acts of sexual intercourse, heterosexual or homosexual, normal or perverted,
actual or simulated;
(B)
Acts of masturbation;
(C)
Acts involving excretory functions or lewd exhibition of the
genitals;
(D)
Acts of bestiality or the fondling of sex organs of animals; or
(E)
Sexual acts of flagellation, torture, or other violence indicating a
sadomasochistic sexual relationship.
(c)
Any device designed or marketed as useful primarily for the stimulation of human
genital organs is obscene material under this Code section.
(d)
Material not otherwise obscene may be obscene under this Code section if the
distribution thereof, the offer to do so, or the possession with the intent to
do so is a commercial exploitation of erotica solely for the sake of their
prurient appeal.
(e)
It is an affirmative defense under this Code section that selling, lending,
renting, leasing, giving, advertising, publishing, exhibiting, or otherwise
disseminating the material was restricted to:
(1)
A person associated with an institution of higher learning, either as a member
of the faculty or a matriculated student, teaching or pursuing a course of study
related to such material; or
(2)
A person whose receipt of such material was authorized in writing by a licensed
medical practitioner or psychiatrist.
(f)
A person who commits the offense of distributing obscene material shall be
guilty of a misdemeanor of a high and aggravated
nature."
SECTION
3.
This
Act shall not apply to any offense committed before July 1, 2006.
SECTION
4.
This
Act shall become effective on July 1, 2006.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.