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- /* The Model Penal Code (MPC) is arguably the most important work
- on criminal law in the past 30 years. This Model Code has been
- used as the basis of many state's criminal codes. New Jersey and
- Pennsylvania have adopted the MPC as their criminal code.
- However, sections of the MPC or slight re-writes are used by
- virtually every state. The MPC's prohibition on "obscenity" and
- distribution of obscenity follows. */
-
- Section 251.4. Obscenity.
-
- (1) Obscene Defined. Material is obscene if, considered as a
- whole, its predominant appeal is to prurient interest, that is, a
- shameful or morbid interest, in nudity, sex or excretion, and if
- in addition it goes substantially beyond customary limits of
- candor in describing or representing such matters. 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. Undeveloped photographs,
- molds, printing plates, and the like, shall be deemed obscene
- notwithstanding that processing or other acts may be required to
- make the obscenity patent or to disseminate it.
-
- (2) Offenses. Subject to the affirmative defenses provided in
- Subsection (3), a person commits a misdemeanor if he knowingly or
- recklessly:
-
- (a) sells, delivers or provides, or offers or agrees to sell,
- deliver or provide, any obscene writing, picture, records or
- other representation or embodiment of the obscene; or
-
- (b) presents or directs an obscene play, dance or performance, or
- participates in that portion thereof which makes its obscene; or
-
- (c) publishes, exhibits or otherwise makes available any obscene
- material; or
-
- (d) possesses any obscene material for purposes of sale or other
- commercial dissemination; or
-
- (e) sells, advertises or otherwise commercially disseminates
- material, whether or not obscene, by representing or suggesting
- that it is obscene.
-
- A person who disseminates or possesses obscene material in the
- course of his business is presumed to do so knowingly or
- recklessly.
-
- (3) Justifiable and Non-Commercial Private Dissemination. It is
- an affirmative defense to prosecution under this Section that
- dissemination was restricted to:
-
- (a) institutions or persons having scientific, educational,
- governmental or other similar justification for possessing
- obscene material; or
-
- (b) non-commercial dissemination to personal associates of the
- actor.
-
- /* Okay, so something is "obscene." It is nevertheless
- permissible to distribute it to "personal associates" if there is
- no commercial element to the distribution. Accordingly, in MPC or
- MPC based states, a not for profit BBS could distribute even items
- that are ""obscene"" among ""personal associates." This is the
- "live and let live: exception to the law. The document generator
- contains a form for persons to apply for access to an adult area.
- The form requires that the users do not commercially exploit the
- pictures they receive. */
-
- (4) Evidence; Adjudication of Obscenity. In any prosecution under
- this Section evidence shall be admissible to show:
-
- (a) the character of the audience for which the material was
- designed or to which it was directed;
-
- (b) what the predominant appeal of the material would be for
- ordinary adults or any special audience to which it was directed,
- and what effect, if any, it would probably have on conduct of
- such people;
-
- (c) artistic, literary, scientific, educational or other merits
- of the material;
-
- (d) the degree of public acceptance of the material in the United
- States;
-
- (e) appeal to the prurient interest, or absence thereof, in
- advertising or other promotion of the material; and
-
- (f) the good repute of the author, creator, publisher or other
- person from whom the material originated.
-
- Expert testimony and testimony of the author, creator, publisher
- or other person from whom the material originated, relating to
- factors entering into the determination of the issue of
- obscenity, shall be admissible. The Court shall dismiss a
- prosecution for obscenity if it is satisfied that the material is
- not obscene.
-