§ 1361 — Obscenity; acts constituting; class E felony or class G felony; subsequent violations

Delaware § 1361

• Jurisdiction: Delaware
• Title: 11
• Part: Delaware Criminal Code
• Ch. 5: SPECIFIC OFFENSES
• Subch.: Offenses Against Public Health, Order and Decency

Text

(a) A person is guilty of obscenity when the person knowingly:

(1) Sells, delivers or provides any obscene picture, videotape, video game, writing, record, audio cassette tape, compact disc or other representation or embodiment of the obscene;

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

(3) Publishes, exhibits or otherwise makes available any obscene material;

(4) Possesses any obscene material for purposes of sale or other commercial dissemination; or

(5) Permits a person under the age of 12 to be on the premises where material harmful to minors, as defined by § 1365 of this title, is either sold or made available for commercial distribution and which material is readily accessible to or easily viewed by such minors. Any material covered by this paragraph shall not be considered readily accessible to or easily viewed by minors if it has been placed or otherwise located 5 feet or more above the floor of the subject premises or if the material is concealed so that no more than the top 3 inches is visible to the passerby.

(b) Obscenity is a class E felony if a person sells, delivers or provides any obscene picture, videotape, video game, writing, record, audio cassette tape, compact disc or other representation or embodiment of the obscene to a person under the age of 18. In all other cases, obscenity is a class G felony. In addition to the above penalties, upon conviction of obscenity involving live conduct as defined in § 1364 of this title, the court shall order the business or establishment which presented, displayed or exhibited such conduct closed for a period of 6 months.

(c) Notwithstanding Chapter 42 of this title, the minimum sentence for a subsequent violation of this section 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 2 years; provided, however, that where the defendant is an organization, the fine shall be $10,000. In addition to the above penalties, upon conviction of obscenity involving conduct as defined in § 1364 of this title, the court shall order the business or establishment which presented, displayed or exhibited such conduct closed for a period of 2 years.

(d) Where the criminality of conduct depends on a child being under the age of 12, paragraph (a)(5) of this section, or under the age of 18, subsection (b) of this section, it is no defense that the actor did not know the child’s age.

Legislative History

11 Del. C. 1953, § 1361; 58 Del. Laws, c. 497, § 1 ; 60 Del. Laws, c. 445, § 1 ; 61 Del. Laws, c. 121, § 1 ; 63 Del. Laws, c. 111, §§ 1-3 ; 67 Del. Laws, c. 130, § 8 ; 67 Del. Laws, c. 350, §§ 11, 12 ; 70 Del. Laws, c. 186, § 1 ; 74 Del. Laws, c. 71, § 2 ; 74 Del. Laws, c. 380, §§ 1, 2