CHAPTER 121

FORMERLY

HOUSE BILL NO. 408

AS AMENDED BY

HOUSE AMENDMENT NO. 1 AND

SENATE AMENDMENT NO. 3

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE BY PROVIDING FOR A MINIMUM SENTENCE FOR A SECOND OBSCENITY OFFENSE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Title 11, Delaware Code, by striking Section 1361, and inserting a new Section in lieu thereof as follows:

"§1361. Obscenity

(a) A person is guilty of obscenity when he knowingly:

(1) Sells, delivers or provides any obscene picture, writing, record, or other representation or embodiment of the obscene; or

(2) Presents or directs an obscene play, dance, or performance or participates in that portion thereof which makes it obscene; or

(3) Publishes, exhibits or otherwise makes available any obscene material; or

(4) Possesses any obscene material for purposes of sale or other commercial dissemination; or

(5) Permits a person under the age of 12 to be on the premises where material harmful to minors, as defined by 11 Del.C. Section 1365, is either sold or made available for commercial distribution and which material is readily accessible to or easily viewed by such minors.

Any material covered by this subsection shall not be considered readily accessible to or easily viewed by minors if it has been placed or otherwise located five feet or more above the floor of the subject premises or if the material

is concealed so that no more than the top three inches is visible to the passerby.

(b) Obscenity is a Class D Felony if a person sells, delivers or provides any obscene picture, writing, record,

or other representation or embodiment of the obscene to a person under the age of 18, which notwithstanding the provisions of Chapter 42 of this Title shall be punishable by a minimum period of incarceration for 60 days, no portion of which may be suspended or reduced in any manner whatsoever. In all other cases obscenity is a Class A Misdemeanor.

(c) Notwithstanding the provisions of Chapter 42 of this Title, the minimum sentence for a subsequent violation of this Section for Class A Misdemeanor obscenity occurring within five years of a former conviction shall be a fine in the amount of $5,000 and imprisonment for a minimum period of 60 days, no portion of which may be suspended or reduced; provided, however, that where the defendant is a corporation, the fine shall be $10,000.

(d) Where the criminality of conduct depends on a child's being under the age of 12, subsection (a) (5) or under the age of 18, subsection (b), it is no defense that the actor did not know the child's age."

Approved July 8, 1977.