07 LC 29
2901S
The
Senate Judiciary Committee offered the following substitute to HB
226:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia
Annotated, relating to crimes involving obscenity in general, so as to strike in
its entirety existing provisions relating to criminal distribution and
dissemination of obscene materials and insert new provisions relating to the
same subject; to define the nature of the offense, define terms, provide an
affirmative defense, and provide for other related matters; to provide for an
effective date and applicability; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating
to crimes involving obscenity in general, is amended by striking in its entirety
Code Section 16-12-80, relating to criminal distribution and dissemination of
obscene materials, and inserting in its place 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
dissemination
of
selling,
lending, renting, leasing, advertising, publishing, exhibiting, or otherwise
disseminating the material was restricted
to:
(1)
A person associated with an institution of higher learning,
including any
public library operated by this state or any of its political subdivisions or
any library that is operated by or a part of any school, college, or
university, either as a member of the
faculty or
staff or
as
a matriculated student, teaching
or
facilitating 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
2.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval and shall apply only with respect to offenses
committed on or after that effective date.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.