An Act to expand provisions regarding the protection of minors from certain exhibitions.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That 22-24-27 be AMENDED:
22-24-27. Terms used in 22-24-25 to 22-24-37, inclusive, mean:
(1) "Contemporary community standard," the contemporary community standard of the state in which the question of obscenity is to be tested, by the average person, of the state;
(2) "Distributed," to transfer possession of, whether with or without consideration;
(3) "Drag performance," singing, speaking, dancing, acting, simulating, or pantomiming, where a performer, in a lewd and lascivious manner, and in the presence of others, exhibits a gender identity that is different from the performer's biological sex through the use of clothing, makeup, or other physical markers;
(3)(4) "Exhibit,"
to show or display;
(4)(5) "Harmful
to minors," includes in its meaning the quality of any material
or of any performance or of any description or representation, in
whatever form, of nudity, sexual conduct, sexual excitement, or
sado-masochistic
abuse,
or drag performance,
if it:
(a) Predominantly appeals to the prurient, shameful, or morbid interest of minors; and
(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(c) Is without serious literary, artistic, political, or scientific value;
(5)(6) "Magistrate,"
any circuit court or magistrate judge;
(6)(7) "Material,"
anything tangible which is harmful to minors, whether derived through
the medium of reading, observation, or sound;
(7)(8) "Matter"
or "material," any book, magazine, newspaper, or other
printed or written material; or any picture, drawing, photograph,
motion picture, or other pictorial representation; or any statue or
other figure; or recording, transcription or mechanical, chemical, or
electrical reproduction; or any other articles, equipment, machines,
or materials;
(8)(9) "Minor,"
any person less than eighteen years of age;
(9)(10) "Nudity,"
within the meaning of subdivision (4) of this section, the showing of
the human male or female genitals, pubic area, or buttocks with less
than a full opaque covering, or the showing of the female breast with
less than a full opaque covering or any portion thereof below the top
of the nipple, or the depiction of covered male genitals in a
discernibly turgid state;
(10)(11) "Obscene
live conduct," any physical human body activity, whether
performed or engaged in alone or with other persons, including
singing, speaking, dancing, acting, simulation, or pantomiming,
where:
(a) The dominant theme of such conduct, taken as a whole, appeals to a prurient interest;
(b) The conduct is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
(c) The conduct is without serious literary, artistic, political, or scientific value.
In prosecutions under 22-24-27 to 22-24-37, inclusive, if circumstances of production, presentation, advertising, or exhibition indicate that live conduct is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the conduct;
(11)(12) "Obscene
material," material:
(a) The dominant theme of which, taken as a whole, appeals to the prurient interest;
(b) Which is patently offensive because it affronts contemporary community standards relating to the description or representation of sado-masochistic abuse or sexual conduct; and
(c) Lacks serious literary, artistic, political, or scientific value.
In prosecutions under 22-24-27 to 22-24-37, inclusive, if circumstances of production, presentation, sale, dissemination, or publicity indicate that the matter is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the matter;
(12)(13) "Prurient
interest," a shameful or morbid interest in nudity, sex, or
excretion, which goes substantially beyond customary limits of candor
in description or representation of such matters. If it appears from
the character of the material or the circumstances of its
dissemination that the subject matter is designed for a specially
susceptible audience or clearly defined deviant sexual group, the
appeal of the subject matter shall be judged with reference to such
audience or group;
(13)(14) "Sado-masochistic
abuse," flagellation or torture by or upon a person who is nude
or clad in undergarments, a mask or bizarre costume, or the condition
of being fettered, bound, or otherwise physically restrained on the
part of one who is nude or so clothed;
(14)(15) "Sexual
conduct," within the meaning of subdivision (4) of this section,
any act of masturbation, homosexuality, sexual intercourse, or
physical contact with a person's clothed or unclothed genitals, pubic
area, buttocks, or if such person be a female, the breast;
and
(15)(16) "Sexual
excitement," the condition of human male or female genitals when
in a state of sexual stimulation or arousal.
Section 2. That 22-24-29 be AMENDED:
22-24-29.
A person is guilty
of disseminating material harmful to minors if that person knowingly
gives or makes available to a minor or promotes or possesses with
intent to promote to minors, or if that person knowingly sells or
loans to a minor for monetary consideration any material described in
subdivision
22-24-27(4)
22-24-27(5).
Section 3. That 22-24-30 be AMENDED:
22-24-30.
A person is guilty
of disseminating material harmful to minors if, with reference to a
motion picture, show, or other presentation
which
that depicts
nudity, sexual conduct, or
sado-masochistic
abuse, or
drag performance, and
which is
harmful to minors, that person knowingly:
(1) Exhibits
such
the motion
picture, show, or other presentation to a minor;
(2) Sells or gives to a minor an
admission ticket or pass to premises whereon there is exhibited
such
the motion
picture, show, or other presentation; or
(3) Admits a minor for a monetary
consideration to premises whereon there is exhibited or to be
exhibited
such
the motion
picture, show, or other presentation.