26.21.150 Exposing a Child to Harmful Material or Harmful Descriptions or Narrations

(a) Definitions. In this section:

(1) "Harmful description or narrative account" means any explicit and detailed description or narrative account of sexual excitement, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality that, taken as a whole, is harmful to children.

(2) "Harmful material" means:

(A) Any picture, photograph, drawing, sculpture, motion picture film or similar visual representation or image of a person or portion of the human body that depicts nudity, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality and that is harmful to children; or

(B) Any book, pamphlet, magazine, printed matter however reproduced or recording that contains any matter enumerated in the preceding paragraph "1" or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality and that, taken as a whole, is harmful to children.

(3) "Harmful to children" means that quality of any description, narrative account or representation, in whatever form, of nudity, sexually explicit conduct, sexual excitement, sadomasochistic abuse, physical torture or brutality, when it:

(A) Predominantly appeals to the prurient, shameful or morbid interest of children;

(B) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children; and

(4) "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.

(5) "Person" means any individual, partnership, firm, association, corporation or other legal entity.

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

(b) Criminal penalties.

(1) Whoever, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration, is guilty of a Class I felony if any of the following applies:

(A) The person knows or reasonably should know that the child has not attained the age of 18 years.

(B) The person has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan.

(2) Any person who has attained the age of 17 and who, with knowledge of the character and content of the description or narrative account, verbally communicates, by any means, a harmful description or narrative account to a child, with or without monetary consideration, is guilty of a Class 3 Offense if any of the following applies:

(A) The person knows or reasonably should know that the child has not attained the age of 18 years.

(B) The person has face-to-face contact with the child before or during the communication.

(3) Whoever, with knowledge of the character and content of the material, possesses harmful material with the intent to sell, rent, exhibit, play, distribute, or loan the material to a child is guilty of a Class 2 Offense.

(A) The person knows or reasonably should know that the child has not attained the age of 18 years.

(B) The person has face-to-face contact with the child.

(4) It is an affirmative defense to a prosecution for a violation of paragraph 2 any subparagraph, if the defendant had reasonable cause to believe that the child had attained the age of 18 years, and the child exhibited to the defendant a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that the child had attained the age of 18 years. A defendant who raises this affirmative defense has the burden of proving this defense by a preponderance of the evidence.