Chapter 44 - Pornography and Related Offenses

Chapter 44 - Pornography and Related Offenses

46.4401 Definitions.


As used in this chapter:

(a) "Displays publicly" means exposing, placing, posting, exhibiting, or in any fashion displaying in any location, whether public or private, an item in a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a street, highway, or public sidewalk, or from the property of others.

(b) "Explicit sexual material" means any pictorial or three dimensional material depicting sexual conduct, unclothed genitals, sadomasochistic abuse, or emphasizing the depiction of postpubertal human genitals; provided, however, that works of art or of anthropological significance are not considered within the foregoing definition.

(c) "Furnish" means to issue, sell, give, provide, lend, mail, deliver, transfer, circulate, disseminate, present, exhibit or otherwise provide.

(d) "Material" means anything printed or written, or any picture, drawing, photograph, motion picture film, or pictorial representation, or any statue or other figure, or any recording or transcription, or any mechanical, chemical, or electrical reproduction, or anything which is or may be used as a means of communication. Material includes undeveloped photographs, molds, printing plates and other latent representational objects.

(e) "Minor" means any person under the age of 18 years.

(f) "Nudity" means the showing of postpubertal human genitals or pubic area, with less than a fully opaque covering.

(g) 'Performance" means any play, motion picture film, dance or exhibition performed before an audience.

(h) Pornographic: any material or performance is "pornographic" if, considered as a whole, applying contemporary community standards:

(1) its predominant appeal is to prurient interest in sex;

(2) it depicts or describes sexual conduct in a patently offensive way; and

(3) it lacks serious literary, artistic, political or scientific value.

In determining whether any material or performance is pornographic, it is judged with reference to its impact upon ordinary adults.

(i) Pornographic for minors: any material or performance is pornographic for minors if it is primarily devoted to description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, and:

(1) its predominant appeal is to prurient interest in sex;

(2) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(3) it lacks serious literary, artistic, political, or scientific value for minors.

(j) "Promote" means to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do those.

(k) "Sadomasochistic abuse" means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.

(l) "Sexual conduct" has the meaning specified in subsection (d) of 46.3701.

(m) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or gratification.

(n) "Wholesale promote" means to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, or to offer or agree to do those for purposes of resale.

46.4402 Promoting pornography in the first degree.


(a) A person commits the crime of promoting pornography in the first degree if, knowing its content and character:

(1) he wholesale promotes or possesses with the purpose to wholesale promote any pornographic material; or

(2) he wholesale promotes for minors or possesses with the purpose to wholesale promote for minors any material pornographic for minors.

(b) Promoting pornography in the first degree is a class C felony.

46.4403 Promoting pornography in the second degree.


(a) A person commits the crime of promoting pornography in the second degree if, knowing its content and character, he:

(1) promotes or possesses with the purpose to promote any pornographic material for pecuniary gain; or

(2) produces, presents, directs, or participates in any pornographic performance for pecuniary gain.

(b) Promoting pornography in the second degree is a class D felony.

46.4404 Furnishing pornographic materials to minors.


(a) A person commits the crime of furnishing pornographic material to minors if, knowing its content and character, he:

(1) furnishes any material pornographic for minors, knowing that the person to whom it is furnished is a minor or acting in reckless disregard of the likelihood that the person is a minor; or

(2) produces, presents, directs, or participates in any performance pornographic for minors that is furnished to a minor knowing that any person viewing the performance is a minor or acting in reckless disregard of the likelihood that a minor is viewing the performance.

(b) Furnishing pornographic material to minors is a class A misdemeanor.

46.4405 Public display of explicit sexual material.


(a) A person commits the crime of public display of explicit sexual material if he knowingly:

(1) displays publicly explicit sexual material or

(2) fails to take prompt action to remove that display from property in his possession after learning of its existence.

(b) Public display of explicit sexual material is a class A misdemeanor.

46.4406 Evidence in pornography cases.


(a) In any prosecution under this chapter evidence is admissible to show:

(1) what the predominant appeal of the material or performance would be for ordinary adults or minors;

(2) the literary, artistic, political or scientific value of the material or performance;

(3) the degree of public acceptance in this Territory and in the local community;

(4) the appeal to prurient interest in advertising or other promotion of the material or performance; and

(5) the purpose of the author, creator, promoter, furnisher, or publisher of the material or performance.

(b) Testimony of the author, creator, promoter, furnisher, publisher, or expert testimony, relating to factors entering into the determination of the issues of pornography, is admissible.

46.4407 Injunctions and declaratory judgments.


(a) Whenever material or a performance is being or is about to be promoted, furnished or displayed in violation of 46.4402 through 46.4405, a civil action may be instituted by the Attorney General against any person violating or about to violate those sections in order to obtain a declaration that the promotion, furnishing, or display of that material or performance is prohibited. The action may also seek an injunction appropriately restraining promotion furnishing or display.

(b) The action may be brought only in the Trial Division of the High Court.

(c) Any promoter, furnisher, or displayer of, or a person who is about to be a promoter, furnisher, or displayer of, the material or performances involved may intervene as of right as a party defendant in the proceedings.

(d) The Trial and Appellate Divisions of the High Court shall give expedited consideration to actions and appeals brought under this section. The defendant is entitled to a trial of the issues within one day after the issuance of any injunction or restraining order and a decision is rendered by the court within 2 days of the conclusion of the trial. No restraining order or injunction of any kind shall be issued restraining the promotion, furnishing, or display of any material or performance without a prior adversary hearing before the court.

(e) A final declaration obtained under this section may be used to form the basis for an injunction and for no other purpose.

(f) All laws regulating the procedure for obtaining declaratory judgments or injunctions which are inconsistent with the provisions of this section are inapplicable to proceedings brought under this section. There is no right to jury trial in any proceedings under this section.