CHAPTER 111

FORMERLY

SENATE BILL NO. 245

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 5, SUBCHAPTER VU, SUBPART C, TITLE 11 OF THE DELAWARE CODE PROVIDING CERTAIN PUNISHMENTS UPON CONVICTION FOR THE CRIME OF OBSCENITY; AND RELATING TO THE DEFINITION THEREOF.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §1361, Chapter 5, Title 11 of the Delaware Code by striking the phrase "class A misdemeanor" in the catch-line of said section and substituting in lieu thereof the phrase "class E felony."

Section 2. Amend §1361 (b), Chapter 5, Title 11 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(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 Chapter 42 of this title shall be punishable by a fine in the amount of $2,000, imprisonment for a minimum period of 6 months, no portion of which may be suspended or reduced in any manner whatsoever, and probation for a period of one year. In all other cases, obscenity is a class E felony, which notwithstanding Chapter 42 of this title shall be punishable by a fine of $1,000, imprisonment for a minimum period of incarceration for 3 months, no portion of which may by suspended or reduced in any manner, and probation for a period of six months. In addition to the above penalties, upon conviction of obscenity involving live conduct as defined in §1364 of this subpart, the court shall order the business or establishment which presented, displayed or exhibited such conduct closed for a period of six months."

Section 3. Amend §1361 (c), Chapter 5, Title 11 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

(c) Notwithstanding Chapter 42 of this title, the minimum sentence for a subsequent violation of this section for class E felony obscenity occurring within 5 years of a former conviction shall be a fine in the amount of $5,000, imprisonment for a minimum period of 9 months, no portion which may be suspended or reduced, and probation for a period of two years; provided, however, that where the defendant is a corporation, the fine shall be $10,000. In addition to the above penalties, upon conviction of obscenity involving conduct as defined in §1364 of this subpart, the court shall order the business or establishment which presented, displayed or exhibited such conduct closed for a period of two years."

Section 4. Amend §1364, Chapter 5, Title 11 of the Delaware Code by striking said section in its entirety and substituting in lieu thereof the following:

"Material or live conduct is obscene if:

(1) The average person applying contemporary community standards would find the material or conduct, taken as a whole, appeals to the prurient interests; and

(2) The material depicts or describes or the live conduct portrays;

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; or

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and/or lewd exhibitions of the genitals; and

(3) The work or conduct taken as a whole lacks serious literary, artistic, political or scientific value."

Approved July 7, 1981.