CHAPTER 460

FORMERLY HOUSE BILL

NO. 522 AS AMENDED BY

HOUSE AMENDMENTS NO. 1,2 AND 3

AN ACT TO AMEND SUBCHAPTER XXXVIII, CHAPTER 3, TITLE 11, DELAWARE CODE, RELATING TO OBSCENITY.

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. Subchapter XXXVII, Chapter 3, Title 11, Delaware Code, is amended by striking said subchapter in its entirety and inserting in lieu thereof a new Subchapter XXXVIII to read as follows:

SUBCHAPTER XXXVIII. OBSCENITY

§ 711. Obscenity; definitions of terms

(a) "Obscene." Any material or performance is "obscene" if (1) considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism, or masochism, and (2) it goes substantially beyond customary limits of candor in describing or representing such matters, and (3) it is utterly without redeeming social value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.

(b) "Material" means anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or in any other manner.

(c) "Performance" means any play, motion picture, dance or other exhibition performed before an audience.

(d) "Promote" means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, dis-

tribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.

§ 712. Obscenity

A person is guilty of obscenity when, knowing its content and character, he:

(a) Promotes, or possesses with intent to promote, any obscene material; or

(b) Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity.

§ 713. Obscenity; presumptions

(a) A person who promotes obscene material, or possesses the same with intent to promote it, in the course of his business is presumed to do so with knowledge of its content and character.

(b) A person who possesses six or more identical obscene materials or six or more obscene materials is presumed to possess them with intent to promote the same.

§ 714. Violations; notice by the Attorney General

Whenever the Attorney General determines that a person has violated Section 712 of this title, he shall give written notice to such person specifying the violation. Such notice shall require the matters of compliance be corrected within a reasonable time specified therein. The notice required herein shall be issued and the time for compliance thereto elapsed prior to the commencement of any criminal procedures in any court of this State for any violations created by this chapter.

§ 715. Penalties

Violation of Section 712 of this Title is punishable upon conviction by a fine of not less than $250 nor more than $2,500, or imprisonment for not less than 30 days nor more than 3 years, or both.

§ 716. Subsequent convictions

For each subsequent conviction under the provisions of Section 712 of this Title, the court shall impose a fine of not less than $500 nor more than $5,000, or imprisonment for not less than 6 months nor more than 5 years or both.

§ 717. Application to medical profession

Nothing in this subchapter shall be construed as interfering with the rights, privileges, and duties of the medical profession in advising, publishing or illustrating the use of methods and instruments for any of their patients.

Approved June 26, 1972.