CHAPTER 518

AN ACT TO AMEND TITLE 11, DELAWARE CODE PROVIDING FOR REGULATION OF THE DISTRIBUTION OF OBSCENE MATTER TO MINORS.

Be it enacted by the General Assembly of the State of Delaware (two-thirds of all the members elected to each branch thereof concurring therein):

Section 1. Title 11, Section 435, Delaware Code, is repealed.

Section 2. A new Title 11, Section 435, is enacted to read as follows:

§ 435. Obscene literature harmful to minors

(a) Definitions as used in this section:

(1) "Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sadomasochistic abuse which predominately appeals to the prurient, shameful, or morbid interest of minors and is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and is substantially without redeeming social value for minors.

(2) "Knows" means (i) knowledge that the character and content of any material described in Section 435 (i) (1) is harmful to minors; or (ii) knowledge of facts that would lead a reasonable man to inquire whether the character and content of any material described in Section 435 (i) (1) is harmful to minors, or (iii) knowledge or information that the material described herein has been adjudged to be harmful to minors in a proceeding instituted pursuant to Section 435 (b) or (i) or is the subject of a pending proceeding instituted pursuant to Section 435 (b) or (i).

(3) "Minor" means any person under the age of seventeen years.

(4) "Known minor" is any person known, in fact, to be under the age of seventeen years, or any person, in fact, under the age of seventeen years unless a reasonable, bona fide attempt has been made to ascertain the age of that minor.

(5) "Nudity" means 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 fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.

(6) "Sado-masochistic abuse" means flagellation or torture practiced by or upon a person clad in undergarments, a mask, or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.

(7) "Sexual conduct" means acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's unclothed genitals or public area or a female person's breast.

(8) "Sexual excitement" means the condition of human male or female genitals in a state of sexual stimulation or arousal.

(b) Whenever the Attorney General of this State has reasonable cause to believe that any person is or may become engaged in any of the acts described in Section 435 (i) (1), (2) or (4), the Attorney General shall institute an action in the Court of Chancery for the county where such act is or will be performed for adjudication of the question of whether such material is harmful to minors.

(c) The action authorized by Section 435 (b) shall be commenced by the filing of a complaint to which shall be attached as an exhibit a true copy of the allegedly harmful material. The complaint shall: (i) be directed against such material by name or description; (ii) allege that such material is harmful to minors; (iii) designate as respondents and list the names and addresses, if known, of any person in this State engaged or about to be engaged in any of the acts described in Section 435 (i) (1), (2) or (4) with respect to such material; (iv) seek an adjudication that such material is harmful to minors; and (v) seek a permanent injunction against any respondent prohibitng him from performing any of the acts described in Section 435 (i) (1), (2) or (4).

(d) Upon the filing of the complaint described in Section 435 (c), the Attorney General shall present the same, together with the material attached thereto, as soon as practicable to the court for its examination and reading. If after such examination and reading the court finds no probable cause to believe such material to be harmful to minors, the court shall cause an endorsement to that effect to be placed and dated upon the complaint and shall thereupon dismiss the action. If after such examination and reading the court finds probable cause to believe such material to be harmful to minors, the court shall cause an endorsement to that effect to be placed and dated upon the complaint whereupon it shall be the responsibility of the Attorney General promptly to request the Register in Chancery to issue summons and to furnish to the Register in Chancery such number of copies of such complaint and endorsement as are needed for the service of summons. Service of such summons and endorsed complaint shall be made upon the respondents thereto in any manner provided by law.

() The author, publisher or any person interested in sending or causing to be sent, bringing or causing to be brought, into this State for sale or commercial distribution, or any person in this State preparing, selling, exhibiting or commercially distributing, or possessing with intent to sell or commercially distribute or exhibit, the material exhibited to the endorsed complaint, may appear and may intervene in accordance with the Rules of the Court of Chancery. If no person appears and files an answer, or moves to intervene within the time set by the Rule or by an Order of the Court of Chancery, the Court may forthwith adjudge whether the material so exhibited to the endorsed complaint is harmful to minors and enter an appropriate final judgment.

(a) The public policy of this State requires that all proceedings prescribed in this Section, other than criminal actions under Section 435 (i), be heard and disposed of with the maximum promptness and dispatch commensurate with constitutional requirements, including due process, freedom of the press and freedom of speech. The Rules of the Court of Chancery shall be applicable, except as they may be modified by this Section. Any party or intervenor shall be entitled, upon request, to a trial of any issue with an advisory jury and the court, with the consent of all parties, may order a trial of any issue with a jury whose verdict shall have the same effect as in cases of law. In any action in which an injunction is sought under this Section, any respondent or intervenor shall be entitled to a trial of the issues within one day, exclusive of Saturday, Sunday and Holidays, after joinder of issue, and a decision shall be rendered by the court or jury, as the case may be, within two days, exclusive of Saturday, Sunday and Holidays, of the conclusion of the trial. If the issues are being tried before a jury and the jury shall not be able to render a decision within two days of the conclusion of the trial, then notwithstanding any other provision of this Section, the jury shall be dismissed and a decision shall be rendered by the court within two days of the conclusion of the trial. In the event that the court or jury, as the case may be, finds the material exhibited to the complaint not to be harmful to minors, the court shall enter judgment accordingly and shall dismiss the complaint. In the event that the court or jury, as the case may be, finds the material exhibited to the complaint to be harmful to minors, the court shall enter judgment to such effect and may, in such judgment or in subsequent orders of enforcement thereof, enter a permanent injunction against any respondent prohibiting him engaging in any of the acts described in Section 435 (i) (1), (2) or (4).

(g) If the court, pursuant to Section 435 (d), finds probable cause to believe the exhibited material to be harmful to minors, and so endorses the complaint, the court may, upon the motion of the Attorney General and in accordance with the Chancery Court rules issue a temporary restraining order against any respondent prohibiting him from selling, commercially distributing or giving away such material to minors or from permitting minors to inspect such material. No temporary restraining order shall be granted without notice to the respondents unless it clearly appears from specific facts shown by affidavit or by the verified complaint that one or more of the respondents are engaged in the sale of material harmful to minors and that immediate and irreparable injury to the morals and general welfare of minors in this State will result before notice can be served and a hearing had thereon. All proceedings for temporary restraining order and preliminary injunction shall be governed by the Rules of the Court of Chancery.

(h) Any respondent, or any officer, agent, servant, employee or attorney of such respondent, or any person in active concert or participation by contract or arrangement with such respondent, who receives actual notice, by personal service or otherwise, of any injunction or restraining order entered pursuant to Section 435 (f) or (g), and who shall disobey any of the provisions thereof, shall be guilty of contempt of court and upon conviction shall be punished by a fine of not more than $2500, or be imprisoned for not more than three years, or both.

(i) Any person is guilty of a misdemeanor who:

(1) Exhibits for sale, sells, displays, transfers, gives gratis, loans, rents, or advertises to a known minor any book, pamphlet, magazine or printed matter, however reproduced, or sound de-cording, or picture, photograph drawing, sculpture, motion picture film, or similar visual representation that such person knows to be in whole or in part harmful to minors.

(2) Sells, gives gratis, or transfers an admission ticket or pass to a known minor or admits a known minor to a premise -whereon there is exhibited a motion picture, show, or other presentation which, in whole or in part, such person knows to be harmful to minors.

(3) Misrepresents his age as seventeen years or older for the purpose of evading the restrictions of Section 435.

(4) Exhibits for sale, sells, displays, gives gratis, transfers, loans, or rents any matter enumerated in Section 435 (i) (1) that such person knows to be harmful to minors which does not prominently display the words "unlawful to persons under seventeen years of age" or who advertises any matter enumerated in Section 435 (i) (1) that such person knows to be harmful to minors which does not prominently include in such advertisement the word "unlawful to persons under seventeen years of age".

(j) No criminal proceeding shall be commenced against any person pursuant to the provisions of Section 435 (i) (1), (2) or (4) unless, prior to the act which is the subject of such proceeding, such person (i) had written notice from the Attorney General that the material which is the subject of such proceeding has been adjudged harmful to minors pursuant to the provisions of this Section 435 (b) or (i), or (ii) has been subject to an order entered pursuant to Section 435 (b) relating to the material which is the subject of such criminal proceeding, or any other material harmful to minors.

(k) No person shall be subject to prosecution pursuant to the provisions of Section 435 (i), (i) for any sale to a minor where such person had reasonable cause to believe that the minor involved was seventeen years old or more, and such minor exhibited to such person a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that such minor was seventeen years old or more, or (ii) for any sale where a minor is accompanied by a parent or guardian, or accompanied by an adult and such person has no reason to suspect that the adult accompanying the minor is not the minor's parent or guardian; or (iii) where such person is a bona fide school, museum or public library or is acting in his capacity as an employee of such organization or as a retail outlet affiliated with and serving the educational purposes of such organization.

(1) Penalty. Violation of Section 435 (i) is punishable upon conviction by a fine of not less than $250 nor more than $2500, or imprisonment for not less than 30 days nor more than 3 years, or both.

(m) In order to provide for the uniform application of this Act to all minors within this State, it is intended that the sole and only regulation of the matters herein discussed shall be under this Act and no municipality county or other governmental unit within this State shall make any law, ordinance or regulation relating to the subject matter hereof as to minors. All such laws, ordinances and regulations, as they affect minors, whether enacted before or after this Act shall become void, unenforceable and of no effect upon the effective date of this Act; provided, however, that such prior laws, ordinances and regulations shall govern litigations commenced prior to the effective date of this Act and shall continue in effect solely for that purpose.

(n) This section may be known and cited as Delaware Law on the Protection of Minors from Harmful Materials, and may be referred to by that designation.

Section 3. This Act shall become effective 30 days after approval by the Governor.

Section 4. Severability. If any part or section of this Act shall be held to be unconstitutional by any court of this State or of the United States, the remainder of the Act shall continue to be effective and its validity shall not be impaired.

Approved June 5, 1970.