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Article 235 - NY Penal Law

OBSCENITY AND RELATED OFFENSES

S 235.00 Obscenity; definitions of terms.
  The following definitions are applicable to sections 235.05, 235.10
and 235.15:
  1. "Obscene." Any material or performance  is  "obscene"  if  (a)  the
average  person,  applying  contemporary community standards, would find
that considered as a whole, its predominant appeal is  to  the  prurient
interest in sex, and (b) it depicts or describes in a patently offensive
manner,  actual  or  simulated: sexual intercourse, criminal sexual act,
sexual bestiality, masturbation, sadism, masochism,  excretion  or  lewd
exhibition  of  the  genitals,  and  (c) considered as a whole, it lacks
serious literary, artistic, political, and scientific 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.
  2. "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.
  3. "Performance" means  any  play,  motion  picture,  dance  or  other
exhibition performed before an audience.
  4.  "Promote"  means to manufacture, issue, sell, give, provide, lend,
mail, deliver,  transfer,  transmute,  publish,  distribute,  circulate,
disseminate,  present,  exhibit or advertise, or to offer or agree to do
the same.
  5. "Wholesale promote" means to  manufacture,  issue,  sell,  provide,
mail,  deliver,  transfer,  transmute,  publish,  distribute, circulate,
disseminate or to offer or agree to do the same for purposes of resale.
  6. "Simulated" means the explicit depiction or description of  any  of
the  types of conduct set forth in clause (b) of subdivision one of this
section, which creates the appearance of such conduct.
  7. "Criminal sexual act" means any of the  types  of  sexual  conduct
defined  in subdivision two of section 130.00 provided, however, that in
any prosecution under this article the marital  status  of  the  persons
engaged in such conduct shall be irrelevant and shall not be considered.

S 235.05 Obscenity in the third degree.
  A person is guilty of obscenity in the third degree when, knowing its
content and character, he:
  1. Promotes, or possesses with intent to promote, any obscene
material; or
  2. Produces, presents or directs an obscene performance or
participates in a portion thereof which is obscene or which contributes
to its obscenity.
  Obscenity in the third degree is a class A misdemeanor.

S 235.06 Obscenity in the second degree.
  A person is guilty of obscenity in the second degree when he commits
the crime of obscenity in the third degree as defined in subdivisions
one and two of section 235.05 of this chapter and has been previously
convicted of obscenity in the third degree.
  Obscenity in the second degree is a class E felony.

S 235.07 Obscenity in the first degree.
  A person is guilty of obscenity in the first degree when, knowing its
content and character, he wholesale promotes or possesses with intent to
wholesale promote, any obscene material.
  Obscenity in the first degree is a class D felony.

S 235.10 Obscenity; presumptions.
  1. A person who promotes or wholesale promotes obscene material, or
possesses the same with intent to promote or wholesale promote it, in
the course of his business is presumed to do so with knowledge of its
content and character.
  2. A person who possesses six or more identical or similar obscene
articles is presumed to possess them with intent to promote the same.
  The provisions of this section shall not apply to public libraries or
association libraries as defined in subdivision two of section two
hundred fifty-three of the education law, or trustees or employees of
such public libraries or association libraries when acting in the course
and scope of their duties or employment.

S 235.15 Obscenity or disseminating indecent material to minors in the
second degree; defense.
  1. In any prosecution for obscenity, or disseminating indecent
material to minors in the second degree in violation of subdivision
three of section 235.21 of this article, it is an affirmative defense
that the persons to whom allegedly obscene  or indecent material was
disseminated, or the audience to an allegedly obscene performance,
consisted of persons or institutions having scientific, educational,
governmental or other similar justification for possessing,
disseminating or viewing the same.
  2.  In any prosecution for obscenity, it is an affirmative defense
that the person so charged was a motion picture projectionist, stage
employee or spotlight operator, cashier, doorman, usher, candy stand
attendant, porter or in any other non-managerial or non-supervisory
capacity in a motion picture theatre; provided he has no financial
interest, other than his employment, which employment does not encompass
compensation based upon any proportion of the gross receipts, in the
promotion of obscene material for sale, rental or exhibition or in the
promotion, presentation or direction of any obscene performance, or is
in any way responsible for acquiring obscene material for sale, rental
or exhibition.

S 235.20 Disseminating indecent material to minors; definitions of terms.
  The following definitions are applicable to sections 235.21, 235.22,
235.23 and 235.24 of this article:
  1.  "Minor" means any person less than seventeen years old.
  2.  "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.
  3.  "Sexual conduct" means acts 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, breast.
  4.  "Sexual excitement" means the condition of human male or female
genitals when in a state of sexual stimulation or arousal.
  5.  "Sado-masochistic abuse" means flagellation or torture 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.
  6.  "Harmful to minors" means that quality of any description or
representation, in whatever form, of nudity, sexual conduct, sexual
excitement, or sado-masochistic abuse, when it:
  (a)  Considered as a whole, appeals to the prurient interest in sex 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)  Considered as a whole, lacks serious literary, artistic,
political and scientific value for minors.
  7. The term "access software" means software (including client or
server software) or enabling tools that do not create or provide the
content of the communication but that allow a user to do any one or more
of the following:
  (a) filter, screen, allow or disallow content;
  (b) pick, choose, analyze or digest content; or
  (c) transmit, receive, display, forward, cache, search, subset,
organize, reorganize or translate content.

S 235.21 Disseminating indecent material to minors in the second degree.
  A person is guilty of disseminating indecent material to minors in the
second degree when:
  1.  With knowledge of its character and content, he sells or loans to
a minor for monetary consideration:
  (a)  Any picture, photograph, drawing, sculpture, motion picture film,
or similar visual representation or image of a person or portion of the
human body which depicts nudity, sexual conduct or sado-masochistic
abuse and which is harmful to minors; or
  (b)  Any book, pamphlet, magazine, printed matter however reproduced,
or sound recording which contains any matter enumerated in paragraph (a)
hereof, or explicit and detailed verbal descriptions or narrative
accounts of sexual excitement, sexual conduct or sado-masochistic abuse
and which, taken as a whole, is harmful to minors; or
  2.  Knowing the character and content of a motion picture, show or
other presentation which, in whole or in part, depicts nudity, sexual
conduct or sado-masochistic abuse, and which is harmful to minors, he:
  (a)  Exhibits such motion picture, show or other presentation to a
minor for a monetary consideration; or
  (b)  Sells to a minor an admission ticket or pass to premises whereon
there is exhibited or to be exhibited such motion picture, show or other
presentation; or
  (c)  Admits a minor for a monetary consideration to premises whereon
there is exhibited or to be exhibited such motion picture show or other
presentation; or
  3. Knowing the character and content of the communication which, in
whole or in part, depicts actual or simulated nudity, sexual conduct or
sado-masochistic abuse, and which is harmful to minors, he intentionally
uses any computer communication system allowing the input, output,
examination or transfer, of computer data or computer programs from one
computer to another, to initiate or engage in such communication with a
person who is a minor.
  Disseminating indecent material to minors in the second degree is a
class E felony.

S 235.22 Disseminating indecent material to minors in the first degree.
 A person is guilty of disseminating indecent material to minors in the
  first degree when:
    1.  knowing  the  character and content of the communication which, in
  whole or in part, depicts or describes, either in words or images actual
  or simulated nudity, sexual conduct or sado-masochistic abuse, and which
  is harmful to minors, he intentionally uses any  computer  communication
  system  allowing the input, output, examination or transfer, of computer
  data or computer programs from one computer to another, to  initiate  or
  engage in such communication with a person who is a minor; and
    2.  by means of such communication he importunes, invites or induces a
  minor to engage in sexual  intercourse,  oral  sexual  conduct  or  anal
  sexual  conduct,  or  sexual  contact with him, or to engage in a sexual
  performance, obscene sexual  performance,  or  sexual  conduct  for  his
  benefit.
  Disseminating indecent material to minors in the first degree is a
class D felony.

S 235.23 Disseminating indecent material to minors; presumption and
defenses.
  1. A person who engages in the conduct proscribed by section 235.21 is
presumed to do so with knowledge of the character and content of the
material sold or loaned, or the motion picture, show or presentation
exhibited or to be exhibited.
  2. In any prosecution for disseminating indecent material to minors in
the second degree pursuant to subdivision one or two of section 235.21
of this article, it is an affirmative defense that:
  (a) The defendant had reasonable cause to believe that the minor
involved was seventeen years old or more; and
  (b)  Such minor exhibited to the defendant 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.
  3. In any prosecution for disseminating indecent material to minors in
the second degree pursuant to subdivision three of section 235.21 of
this article or disseminating indecent material to minors in the first
degree pursuant to section 235.22 of this article, it shall be a defense
that:
  (a) The defendant made a reasonable effort to ascertain the true age
of the minor and was unable to do so as a result of actions taken by the
minor; or
  (b) The defendant has taken, in good faith, reasonable, effective and
appropriate actions under the circumstances to restrict or prevent
access by minors to materials specified in such subdivision, which may
involve any appropriate measures to restrict minors from access to such
communications, including any method which is feasible under available
technology; or
  (c) The defendant has restricted access to such materials by requiring
use of a verified credit card, debit account, adult access code or adult
personal identification number; or
  (d) The defendant has in good faith established a mechanism such that
the labeling, segregation or other mechanism enables such material to
be automatically blocked or screened by software or other capabilities
reasonably available to responsible adults wishing to effect such
blocking or screening and the defendant has not otherwise solicited
minors not subject to such screening or blocking capabilities to access
that material or to circumvent any such screening or blocking.

S 235.24 Disseminating indecent material to minors; limitations.
  In any prosecution for disseminating indecent material to minors in
the second degree pursuant to subdivision three of section 235.21 of
this article or disseminating indecent material to minors in the first
degree pursuant to section 235.22 of this article:
  1. No person shall be held to have violated such provisions solely for
providing access or connection to or from a facility, system, or network
not under that person`s control, including transmission, downloading,
intermediate storage, access software, or other related capabilities
that are incidental to providing such access or connection that do not
include the creation of the content of the communication.
  (a) The limitations provided by this subdivision shall not be
applicable to a person who is a conspirator with an entity actively
involved in the creation or knowing distribution of communications that
violate such provisions, or who knowingly advertises the availability of
such communications.
  (b) The limitations provided by this subdivision shall not be
applicable to a person who provides access or connection to a facility,
system, or network engaged in the violation of such provisions that is
owned or controlled by such person.
  2. No employer shall be held liable under such provisions for the
actions of an employee or agent unless the employee`s or agent`s conduct
is within the scope of his employment or agency and the employer having
knowledge of such conduct, authorizes or ratifies such conduct, or
recklessly disregards such conduct.

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