Obscene Material
Obscene Material Laws Updated in 2006:
Enrolled, An Act, To amend Sections 13A-12-190, 13A-12-191, 13A-12-192, 13A-12-193, 13A-12-194, 13A-12-196, and 13A-12-197 of the Code of Alabama 1975, relating to obscene material involving children; to further define the term "matter" to include video cassette, tape, record, digital video disc (DVD), video compilation, or items stored in a computer or any other electronic device in the defined term; or other digital storage; to define the terms "visual depiction" and "separate offense"; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Sections 13A-12-190, 13A-12-191, 13A-12-192, 13A-12-193, 13A-12- 194, 13A-12-196, and 13A-12-197 of the Code of Alabama 1975, are amended to read as follows:
"§ 13A-12-190.
"For the purposes of this division, the following terms shall have the meanings respectively ascribed to them by this section:
"(1) DISSEMINATE. To sell, lend or show for monetary consideration or to offer or agree to do the same.
"(2) DISPLAY PUBLICLY. The exposing, placing, posting, exhibiting or in any fashion displaying in any location, whether public or private, an item in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a public thoroughfare, depot or vehicle.
"(3) PUBLIC THOROUGHFARE, DEPOT or VEHICLE. Any street, highway, park, depot or transportation platform or other place, whether indoors or out, or any vehicle for public transportation, owned or operated by government, either directly or through a public corporation or authority, or owned or operated by any agency of public transportation that is designed for the use, enjoyment or transportation of the general public.
"(4) KNOWINGLY. A person knowingly disseminates or publicly displays obscene matter when the person knows the nature of the matter. A person knows the nature of the matter when either of the following circumstances exist:
"a. The person is aware of the character and content of the matter; or
"b. The person recklessly disregards circumstances suggesting the character and content of the matter.
"(5) SADO--MASOCHISTIC ABUSE. Such term means either of the following:
"a. Flagellation or torture, for the purpose of sexual stimulation, by or upon a person who is nude or clad in undergarments or in a revealing or bizarre costume; or
"b. The condition of a person who is nude or clad in undergarments or in a revealing or bizarre costume being fettered, bound or otherwise physically restrained for the purpose of sexual stimulation.
"(6) SEXUAL EXCITEMENT. The condition of human male or female genitals when in a state of sexual stimulation.
"(7) SEXUAL INTERCOURSE. Intercourse, real or simulated, whether genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex or between a human and an animal.
"(8) MASTURBATION. Manipulation, by hand or instrument, of the human genitals, whether one's own or another's for the purpose of sexual stimulation.
"(9) OTHER SEXUAL CONDUCT. Any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.
"(10) BREAST NUDITY. The lewd showing of the post-pubertal human female breasts below a point immediately above the top of the areola.
"(11) GENITAL NUDITY. The lewd showing of the genitals or pubic area.
"(12) MATTER. Any book, magazine, newspaper, or other printed material, or any picture, photograph, motion picture, video cassette, tape, record, digital video disc (DVD), video compilation, or electronic depiction in a comparable format, or an image, file, download, or other content stored, or reproduced by using a computer or electronic device or other digital storage, or any other thing, articles, or materials that either are or contain a photographic or other visual depiction of a live act, performance, or event.
"(13) OBSCENE. a. When used to describe any matter that contains a visual reproduction of breast nudity, such term means matter that:
"1. Applying contemporary local community standards, on the whole, appeals to the prurient interest; and
"2. Is patently offensive; and
"3. On the whole, lacks serious literary, artistic, political or scientific value.
"b. When used to describe matter that is a depiction of an act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct, such term means matter containing such a visual reproduction that itself lacks serious literary, artistic, political or scientific value.
"(14) LOCAL COMMUNITY. The judicial circuit in which the indictment is brought.
"(15) VISUAL DEPICTION. A portrayal, representation, illustration, image, likeness, or other thing that creates a sensory impression, whether an original, duplicate, or reproduction.
"(16) SEPARATE OFFENSE. The depiction of an individual less than 17 years of age that violates this division shall constitute a separate offense for each single visual depiction.
"§ 13A-12-191.
"Any person who shall knowingly disseminate or display publicly any obscene matter containing a visual depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class B felony.
"§ 13A-12-192.
"(a) Any person who knowingly possesses with intent to disseminate any obscene matter that contains a visual depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class B felony. Possession of three or more copies of the same visual depiction contained in obscene matter is prima facie evidence of possession with intent to disseminate the same.
"(b) Any person who knowingly possesses any obscene matter that contains a visual depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony.
"§ 13A-12-193.
"(a) In proving that a person in a visual depiction who is engaged in any obscene act set out in Sections 13A-12-191, 13A-12-192, 13A-12-196 and 13A-12- 197 is under the age of 17 years, the state is not required to introduce into evidence a birth certificate, produce testimony as to the date of birth of such person, or produce testimony of any person who knows or is acquainted with the person alleged to be under the age of 17 years. If the defendant or the state intends to rely on a birth certificate to prove the date of birth of any person in the visually reproduced matter, such defendant or the state shall file with the clerk of the court in which the action is pending, at least 15 days prior to trial, a notice of an intention to rely on an official, certified copy of a birth certificate together with a copy of the said birth certificate.
"(b) A jury, or the court if a jury trial is waived, may infer from the following factors whether or not the person displayed or depicted in any obscene matter is under the age of 17 years:
"(1) The general body growth and bone structure of the person;
"(2) The development of pubic hair or body hair on the person;
"(3) The development of the person's sexual organs;
"(4) The context in which the person is placed by any accompanying printed or text material;
"(5) Any expert testimony as to the degree of maturity of the person.
"(c) The existence of any or all of the factors listed in subsection (b) of this section shall not operate to change the requirement that before any conviction may be had, the state must convince the factfinder beyond a easonable doubt that the person engaged in the act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct in the visual depiction is under the age of 17 years.
"§ 13A-12-194.
"The state shall not be required to establish the identity, either in the indictment or in any subsequent proceeding, of the person alleged to be under the age of 17 years who is engaged in any of the acts described in Sections 13A-12-191, 13A-12-192, 13A-12-196 and 13A-12-197, which are visual depiction.
"§ 13A-12-196.
"Any parent or guardian who knowingly permits or allows their child, ward, or dependent under the age of 17 years to engage in the production of any obscene matter containing a visual depiction of such child, ward, or dependent under the age of 17 years engaged in any act of sado-masochistic abuse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class A felony.
"§ 13A-12-197.
"Any person who knowingly films, prints, records, photographs or otherwise produces any obscene matter that contains a visual depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class A felony."
Section 2. For any person who violates Section 13A-12-197, each depiction of each individual less than 17 years of age constitutes a separate offense.
Section 3. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621 because the bill defines a new crime or amends the definition of an existing crime.
Section 4. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.
Approved March 1, 2006.