H 4830 General Bill, By Davenport
 A BILL TO AMEND SECTION 16-15-305, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO DISSEMINATING, PROCURING, OR PROMOTING OBSCENITY, SO AS TO ADD THE
 DISSEMINATION, PROCUREMENT, AND PROMOTION OF SEXUAL DEVICES TO THE DELINEATED
 OBSCENITY OFFENSES.

   03/15/06  House  Introduced and read first time HJ-102
   03/15/06  House  Referred to Committee on Judiciary HJ-102

TO AMEND SECTION 16-15-305, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DISSEMINATING, PROCURING, OR PROMOTING OBSCENITY, SO AS TO ADD THE DISSEMINATION, PROCUREMENT, AND PROMOTION OF SEXUAL DEVICES TO THE DELINEATED OBSCENITY OFFENSES.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 16-15-305 of the 1976 Code is amended to read:

"Section 16-15-305.    (A)    It is unlawful for any a person knowingly to disseminate obscenity or a sexual device.

(1)    A person disseminates obscenity within the meaning of this article if he:

(1)(a)    sells, delivers, or provides or offers or agrees to sell, deliver, or provide any obscene writing, picture, record, digital electronic file, or other representation or description of the obscene;

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

(3)(c)    publishes, exhibits, or otherwise makes available anything obscene to any a group or individual; or

(4)(d)    exhibits, presents, rents, sells, delivers, or provides; or offers or agrees to exhibit, present, rent, or to provide: any motion picture, film, filmstrip, or projection slide, or sound recording, sound tape, or sound track, video tapes and recordings, or any matter or material of whatever form which is a representation, description, performance, or publication of the obscene.

(2)    A person disseminates a sexual device within the meaning of this article if it is designed or marketed as useful primarily for the stimulation of human genital organs and solely for the sale of prurient interest in sex.

(B)    For purposes of this article any material is obscene if:

(1)    to the average person applying contemporary community standards, the material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (C) of this section;

(2)    the average person applying contemporary community standards relating to the depiction or description of sexual conduct would find that the material taken as a whole appeals to the prurient interest in sex;

(3)    to a reasonable person, the material taken as a whole lacks serious literary, artistic, political, or scientific value; and

(4)    the material as used is not otherwise protected or privileged under the Constitutions of the United States or of this State.

(C)    As used in this article:

(1)    'sexual conduct' means:

(a)    vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted, whether between human beings, animals, or a combination thereof;

(b)    masturbation, excretory functions, or lewd exhibition, actual or simulated, of the genitals, pubic hair, anus, vulva, or female breast nipples including male or female genitals in a state of sexual stimulation or arousal or covered male genitals in a discernably turgid state;

(c)    an act or condition that depicts actual or simulated bestiality, sado-masochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or the condition of being fettered, bound, or otherwise physically restrained on the part of the one so clothed;

(d)    an act or condition that depicts actual or simulated touching, caressing, or fondling of, or other similar physical contact with, the covered or exposed genitals, pubic or anal regions, or female breast nipple, whether alone or between humans, animals, or a human and an animal, of the same or opposite sex, in an act of actual or apparent sexual stimulation or gratification; or

(e)    an act or condition that depicts the insertion of any part of a person's body, other than the male sexual organ, or of any an object into another person's anus or vagina, except when done as part of a recognized medical procedure.

(2)    'patently offensive' means obviously and clearly disagreeable, objectionable, repugnant, displeasing, distasteful, or obnoxious to contemporary standards of decency and propriety within the community.

(3)    'prurient interest' means a shameful or morbid interest in nudity, sex, or excretion and is reflective of an arousal of lewd and lascivious desires and thoughts.

(4)    'person' means any individual, corporation, partnership, association, firm, club, or other legal or commercial entity.

(5)    'knowingly' means having general knowledge of the content of the subject material or performance, or failing after reasonable opportunity to exercise reasonable inspection which would have disclosed the character of the material or performance.

(D)    Obscenity must be judged with reference to ordinary adults except that it must be judged with reference to children or other especially susceptible audiences or clearly defined deviant sexual groups if it appears from the character of the material or the circumstances of its dissemination to be especially for or directed to children or such these audiences or groups.

(E)    As used in this article, 'community standards' used in determining prurient appeal and patent offensiveness are the standards of the area from which the jury is drawn.

(F)    It is unlawful for any a person knowingly to create, buy, procure, or process obscene material or a sexual device with the purpose and intent of disseminating it.

(G)    It is unlawful for a person to advertise or otherwise promote the sale of sexual devices or material represented or held out by them as obscene.

(H)    A person who violates this section is guilty of a felony and, upon conviction, must be imprisoned not more than five years or fined not more than ten thousand dollars, or both.

(I)    Obscene material and sexual devices disseminated, procured, or promoted in violation of this section is contraband and may be seized by appropriate law enforcement authorities."

SECTION    2.    If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION    3.    The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

SECTION    4.    This act takes effect upon approval by the Governor.