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CHAPTER 22-24

OBSCENITY AND PUBLIC INDECENCY

22-24-1      Repealed.
22-24-1.1      Public indecency--Misdemeanor.
22-24-1.2      Indecent exposure--Misdemeanor or felony.
22-24-1.3      Indecent exposure involving a child--Felony.
22-24-1.4      Private indecent exposure--Misdemeanor.
22-24-2, 22-24-2.1.      Repealed.
22-24-3      Repealed.
22-24-4      Repealed.
22-24-5      Repealed.
22-24-6, 22-24-7.      Repealed.
22-24-8      Repealed.
22-24-9, 22-24-10.      Repealed.
22-24-11 to 22-24-24.      Repealed.
22-24-25      Municipal and county power to regulate obscene materials or obscene live conduct not preempted.
22-24-25.1      County or municipal ordinance establishing contemporary community standards test.
22-24-26      Obsolete.
22-24-27      Definition of terms.
22-24-28      Disseminating material harmful to minors as misdemeanor.
22-24-29      Possession, sale, or loan as disseminating material harmful to minors.
22-24-29.1      Publications containing obscene material to be wrapped and sealed while on display--Misdemeanor.
22-24-30      Admission to show or exhibition as disseminating material harmful to minors.
22-24-31      Defenses for disseminating materials harmful to minors.
22-24-32      Misrepresentation to obtain admission of minor--Misdemeanor.
22-24-33      Misrepresentation of age by minor--Misdemeanor.
22-24-34      Dissemination of separate articles as separate offenses.
22-24-35      Repealed.
22-24-36      Repealed.
22-24-37      Activities and persons excepted.
22-24-38 to 22-24-51.      Repealed.
22-24-52 to 22-24-54.      Repealed.
22-24-55      Public schools to restrict access to obscene materials on public access computers.
22-24-56      Public libraries to restrict access to obscene materials on public access computers.
22-24-57      Complying public school or library not liable for damages.
22-24-58      Obscene material defined.
22-24-59      Public access computer defined.
22-24-60      Prepaid adult entertainment card defined.
22-24-61      Sale or distribution of prepaid adult entertainment card to minors as misdemeanor.
22-24-62      Prepaid adult entertainment telephone card defined.
22-24-63      Persons violating § 22-24-61 liable for civil damages.
22-24-64      Persons who may bring actions for damages.


22-24-65      Persons from whom damages may be sought.
22-24-66      Damages that may be recovered.
22-24-67      Statute of limitations.
22-24-68      Prepaid adult entertainment cards subject to seizure and destruction.


     22-24-1.   Repealed by SL 1998, ch 136, § 1


     22-24-1.1.   Public indecency--Misdemeanor. A person commits the crime of public indecency if the person, under circumstances in which that person knows that his or her conduct is likely to annoy, offend, or alarm some other person, exposes his or her anus or genitals in a public place where another may be present who will be annoyed, offended, or alarmed by the person's act. A violation of this section is a Class 2 misdemeanor.

Source: SL 1998, ch 136, § 2; SL 2005, ch 120, § 298.


     22-24-1.2.   Indecent exposure--Misdemeanor or felony. A person commits the crime of indecent exposure if, with the intent to arouse or gratify the sexual desire of any person, the person exposes his or her genitals in a public place, or in the view of a public place, under circumstances in which that person knows that person's conduct is likely to annoy, offend, or alarm another person. A violation of this section is a Class 1 misdemeanor. However, if such person has been previously convicted of a felony violation of § 22-22-1, 22-22-7, or 22-24A-3, that person is guilty of a Class 6 felony. Any person convicted of a third or subsequent violation of this section is guilty of a Class 6 felony.

Source: SL 1998, ch 136, § 3; SL 2005, ch 120, § 299; SL 2009, ch 116, § 2.


     22-24-1.3.   Indecent exposure involving a child--Felony. If any person, eighteen years of age or older, with the intent to arouse or gratify the sexual desire of any person, intentionally exposes his or her genitals to a child, thirteen years of age or younger, that person is guilty of the crime of indecent exposure involving a child. Indecent exposure involving a child is a Class 6 felony. A second or subsequent conviction for indecent exposure involving a child is a Class 5 felony.

Source: SL 2002, ch 111, § 1; SL 2005, ch 120, § 300; SL 2009, ch 116, § 1.


     22-24-1.4.   Private indecent exposure--Misdemeanor. A person commits the crime of private indecent exposure if:
             (1)      The person exposes the genitals of the person with the intent to arouse or gratify the sexual desire of the person or another person;
             (2)      The person is in a place where another person has a reasonable expectation of privacy;
             (3)      The person is in view of the other person;
             (4)      The exposure reasonably would be expected to annoy, offend, or alarm the other person; and
             (5)      The person knows that the other person did not consent to the exposure.
     Private indecent exposure is a Class 1 misdemeanor.
     This section does not apply to a person who commits the act described in this section if the person cohabits with or is involved in a sexually intimate relationship with the other person.

Source: SL 2009, ch 116, § 3.


     22-24-2, 22-24-2.1.   Repealed by SL 1976, ch 158, § 24-11


     22-24-3.   Repealed by SL 1968, ch 29, § 16


     22-24-4.   Repealed by SL 1972, ch 139, § 1


     22-24-5.   Repealed by SL 1968, ch 29, § 16


     22-24-6, 22-24-7.   Repealed by SL 1976, ch 158, § 24-11


     22-24-8.   Repealed by SL 2005, ch 120, § 301, eff. July 1, 2006.


     22-24-9, 22-24-10.   Repealed by SL 1976, ch 158, § 24-11


     22-24-11 to 22-24-24.   Repealed by SL 1974, ch 165, § 24


     22-24-25.   Municipal and county power to regulate obscene materials or obscene live conduct not preempted. Except as provided in §  22-24-37, nothing contained in this chapter limits any county or municipality from regulating obscene material or obscene live conduct within its jurisdiction.

Source: SL 1968, ch 29, § 14; SL 1974, ch 61, § 2; SL 1976, ch 158, § 24-2; SL 1978, ch 162; SL 1994, ch 167, § 1; SL 1998, ch 137, § 1.


     22-24-25.1.   County or municipal ordinance establishing contemporary community standards test. Any county or municipality may provide, by ordinance, for a contemporary community standards test to regulate the sale, distribution, and use of obscene material and to regulate obscene live conduct in any commercial establishment or public place within its jurisdiction.

Source: SDCL, § 22-24-25 as added by SL 1978, ch 162; SL 1994, ch 167, § 2; SL 2004, ch 155, § 1; SL 2005, ch 120, § 302.


     22-24-26.   Obsolete


     22-24-27.   Definition of terms. Terms used in §§ 22-24-25 to 22-24-37, inclusive, mean:
             (1)      "Contemporary community standard," the contemporary community standard of the state in which the question of obscenity is to be tested, by the average person, of the state;
             (2)      "Distributed," to transfer possession of, whether with or without consideration;
             (3)      "Exhibit," to show or display;
             (4)      "Harmful to minors," includes in its meaning the quality of any material or of any performance or of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, if it:
             (a)      Predominantly appeals to the prurient, shameful, or morbid interest of minors; and
             (b)      Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
             (c)      Is without serious literary, artistic, political, or scientific value;
             (5)      "Magistrate," any circuit court or magistrate judge;
             (6)      "Material," anything tangible which is harmful to minors, whether derived through the medium of reading, observation, or sound;
             (7)      "Matter" or "material," any book, magazine, newspaper, or other printed or written material; or any picture, drawing, photograph, motion picture, or other pictorial representation; or any statue or other figure; or recording, transcription or mechanical, chemical, or electrical reproduction; or any other articles, equipment, machines, or materials;
             (8)      "Minor," any person less than eighteen years of age;
             (9)      "Nudity," within the meaning of subdivision (4) of this section, 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 full opaque covering or any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state;
             (10)      "Obscene live conduct," any physical human body activity, whether performed or engaged in alone or with other persons, including singing, speaking, dancing, acting, simulation, or pantomiming, where:
             (a)      The dominant theme of such conduct, taken as a whole, appeals to a prurient interest;
             (b)      The conduct is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
             (c)      The conduct is without serious literary, artistic, political, or scientific value.
             In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of production, presentation, advertising, or exhibition indicate that live conduct is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the conduct;
             (11)      "Obscene material," material:
             (a)      The dominant theme of which, taken as a whole, appeals to the prurient interest;
             (b)      Which is patently offensive because it affronts contemporary community standards relating to the description or representation of sado-masochistic abuse or sexual conduct; and
             (c)      Lacks serious literary, artistic, political, or scientific value.
             In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of production, presentation, sale, dissemination, or publicity indicate that the matter is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the matter;
             (12)      "Prurient interest," a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is designed for a specially susceptible audience or clearly defined deviant sexual group, the appeal of the subject matter shall be judged with reference to such audience or group;
             (13)      "Sado-masochistic abuse," flagellation or torture by or upon a person who is nude or clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of one who is nude or so clothed;
             (14)      "Sexual conduct," within the meaning of subdivision (4) of this section, any act of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or if such person be a female, the breast;
             (15)      "Sexual excitement," the condition of human male or female genitals when in a state of sexual stimulation or arousal.

Source: SL 1968, ch 29, § 1; SDCL Supp, § 22-24-11; SL 1974, ch 165, § 1; SL 1976, ch 158, §§ 24-3 to 24-5; SL 1994, ch 167, § 3; SL 2005, ch 120, § 303.


     22-24-28.   Disseminating material harmful to minors as misdemeanor. Any person who disseminates material harmful to minors is guilty of a Class 1 misdemeanor.

Source: SL 1968, ch 29, §§ 3, 9 (b); SDCL Supp, §§ 22-24-13, 22-24-20; SL 1974, ch 165, § 18; SL 1976, ch 158, § 24-6.


     22-24-29.   Possession, sale, or loan as disseminating material harmful to minors. A person is guilty of disseminating material harmful to minors if that person knowingly gives or makes available to a minor or promotes or possesses with intent to promote to minors, or if that person knowingly sells or loans to a minor for monetary consideration any material described in subdivision § 22-24-27(4).

Source: SL 1974, ch 165, § 18 (1); SL 2005, ch 120, § 304.


     22-24-29.1.   Publications containing obscene material to be wrapped and sealed while on display--Misdemeanor. No person may knowingly distribute, display, sell, or exhibit for sale in any public place any magazine, book, or newsprint displaying or containing obscene material on its cover or material unless the magazine, book, or newsprint is wrapped and sealed so that no more than its title, name, price, or date is exposed to the public and the magazine, book, or newsprint cannot be viewed or examined without breaking the seal, wrapping, or covering. Any person who violates this section is guilty of a Class 1 misdemeanor.

Source: SL 1978, ch 161; SL 2005, ch 120, § 305.


     22-24-30.   Admission to show or exhibition as disseminating material harmful to minors. A person is guilty of disseminating material harmful to minors if, with reference to a motion picture, show, or other presentation which depicts nudity, sexual conduct, or sado-masochistic abuse, and which is harmful to minors, that person knowingly:
             (1)      Exhibits such motion picture, show, or other presentation to a minor;
             (2)      Sells or gives to a minor an admission ticket or pass to premises whereon there is exhibited such motion picture, show, or other presentation; or
             (3)      Admits a minor for a monetary consideration to premises whereon there is exhibited or to be exhibited such motion picture, show, or other presentation.

Source: SL 1974, ch 165, § 18 (2); SL 2005, ch 120, § 306.


     22-24-31.   Defenses for disseminating materials harmful to minors. In any prosecution for disseminating material harmful to minors, it is an affirmative defense that:
             (1)      The defendant had reasonable cause to believe that the minor involved was eighteen years old or more. A draft card, driver's license, birth certificate, or other official or apparently official document is evidence establishing that the minor was eighteen years of age or older;
             (2)      The minor involved was accompanied by a parent or guardian, or by an adult and the adult represented that he or she was the minor's parent or guardian or an adult and the adult signed a written statement to that effect;
             (3)      The defendant was the parent or guardian of the minor involved; or
             (4)      The defendant was a bona fide school, college, university, museum, or public library, or was acting in the capacity of an employee of such an organization or a retail outlet affiliated with and serving the educational purposes of such an organization.

Source: SL 1974, ch 165, § 20; SL 1993, ch 213, § 107; SL 2005, ch 120, § 307.


     22-24-32.   Misrepresentation to obtain admission of minor--Misdemeanor. A person is guilty of a Class 1 misdemeanor if that person knowingly misrepresents that he or she is a parent or guardian of a minor for the purpose of obtaining admission of any minor to any motion picture, show, or other presentation which is harmful to minors.

Source: SL 1974, ch 165, § 19 (1); SL 1976, ch 158, § 24-7; SL 2005, ch 120, § 308.


     22-24-33.   Misrepresentation of age by minor--Misdemeanor. A minor is guilty of a Class 2 misdemeanor if that minor misrepresents his or her age for the purpose of obtaining admission to any motion picture, show, or other presentation which is harmful to minors.

Source: SL 1974, ch 165, § 19 (2); SL 1976, ch 158, § 24-8; SL 2005, ch 120, § 309.


     22-24-34.   Dissemination of separate articles as separate offenses. If more than one article or item of material prohibited under §§ 22-24-27 to 22-24-37, inclusive, is sold, given, advertised for sale, distributed commercially, or promoted, by the same person, after a hearing and determination that probable cause exists to believe such article or material is harmful to minors, each such sale, gift, advertisement, distribution, or promotion constitutes a separate offense.

Source: SL 1974, ch 165, § 21; SL 2005, ch 120, § 310.


     22-24-35.   Repealed by SL 1976, ch 158, § 24-11


     22-24-36.   Repealed by SL 1998, ch 137, § 2


     22-24-37.   Activities and persons excepted. The provisions of §§ 22-24-27 to 22-24-37, inclusive, do not apply to any persons who may possess or distribute obscene matter or participate in conduct, otherwise proscribed by those sections, if such possession, distribution, or conduct occurs:
             (1)      In the course of law enforcement and judicial activities;
             (2)      In the course of bona fide school, college, university, museum, or public library activities or in the course of employment of such an organization or retail outlet affiliated with and serving the educational purposes of such an organization; or
             (3)      In the course of employment as a moving picture machine operator, or assistant operator, in a motion picture theater in connection with a motion picture film or show exhibited in such theater if such operator or assistant operator has no financial interest in the motion picture theater wherein that operator or assistant operator is so employed other than wages received or owed;
or like circumstances of justification if the possession, distribution, or conduct is not limited to the subject matter's appeal to prurient interests.

Source: SL 1973, ch 148; SDCL Supp, § 22-24-12.1; SL 1974, ch 165, § 2; SL 2005, ch 120, § 311.


     22-24-38 to 22-24-51.   Repealed by SL 1978, ch 178, § 577


     22-24-52 to 22-24-54.   Repealed by SL 1978, ch 164, §§ 9, 11, 13


     22-24-55.   Public schools to restrict access to obscene materials on public access computers. Any public school that provides a public access computer shall do one or both of the following:
             (1)      Equip the computer with software that will limit minors' ability to gain access to obscene materials or purchase internet connectivity from an internet service provider that provides filter services to limit access to obscene materials; or
             (2)      Develop and implement, by January 1, 2001, a local policy that establishes measures to restrict minors from computer access to obscene materials.

Source: SL 1999, ch 76, § 1; SL 2005, ch 120, § 312.


     22-24-56.   Public libraries to restrict access to obscene materials on public access computers. Any public library that provides a public access computer shall develop and implement, by January 1, 2001, a local policy that establishes measures to restrict minors from computer access to obscene materials.

Source: SL 1999, ch 76, § 2.


     22-24-57.   Complying public school or library not liable for damages. No public school that complies with § 22-24-55 or any public library that complies with § 22-24-56 may be held liable for any damages that may arise from a minor gaining access to obscene materials through the use of a public access computer that is owned or controlled by the public school or public library.

Source: SL 1999, ch 76, § 3; SL 2005, ch 120, § 313.


     22-24-58.   Obscene material defined. For the purposes of §§ 22-24-55 to 22-24-59, inclusive, obscene material is defined pursuant to subdivision 22-24-27(11).

Source: SL 1999, ch 76, § 4; SL 2005, ch 120, § 314.


     22-24-59.   Public access computer defined. For the purposes of §§ 22-24-55 to 22-24-59, inclusive, a public access computer is any computer that is located in a public school or public library.

Source: SL 1999, ch 76, § 5.


     22-24-60.   Prepaid adult entertainment card defined. For the purposes of §§ 22-24-60 to 22-24-68, inclusive, a prepaid adult entertainment card is a product, either sold at wholesale, retail, or distributed gratis as a promotion, which permits the cardholder to access one or more erotic or pornographic internet sites by means of a predetermined user identification and password unique to each card.

Source: SL 2002, ch 112, § 1.


     22-24-61.   Sale or distribution of prepaid adult entertainment card to minors as misdemeanor. It is a Class 1 misdemeanor to sell, give, or distribute any prepaid adult entertainment card or any prepaid adult entertainment telephone card to any person under eighteen years of age.

Source: SL 2002, ch 112, § 2.


     22-24-62.   Prepaid adult entertainment telephone card defined. A prepaid adult entertainment telephone card is a product, either sold at wholesale, retail, or distributed gratis as a promotion, which permits the cardholder to access one or more adult entertainment telephone services for a predetermined number of minutes by means of a telephone number and an access code or password unique to each card.

Source: SL 2002, ch 112, § 3.


     22-24-63.   Persons violating § 22-24-61 liable for civil damages. Any person who knowingly participates in any conduct proscribed by §§ 22-24-60 to 22-24-68, inclusive, is liable for civil damages.

Source: SL 2002, ch 112, § 4.


     22-24-64.   Persons who may bring actions for damages. Any of the following persons may bring an action for damages caused by another person's conduct as proscribed by §§ 22-24-60 to 22-24-68, inclusive:
             (1)      The victimized minor;
             (2)      Any parent, legal guardian, or sibling of a victimized minor; or
             (3)      Any person injured as a result of the willful, reckless, or negligent actions of a person who knowingly participated in conduct proscribed by §§ 22-24-60 to 22-24-68, inclusive.
     If the parent or guardian is named as a defendant in the action, the court shall appoint a special guardian to bring the action on behalf of the minor.

Source: SL 2002, ch 112, § 5; SL 2005, ch 120, § 315.


     22-24-65.   Persons from whom damages may be sought. Any person entitled to bring an action under § 22-24-64 may seek damages from any person who knowingly participated in the sale or in the chain of distribution of any prepaid adult entertainment card or any prepaid adult entertainment telephone card proscribed by §§ 22-24-60 to 22-24-68, inclusive.

Source: SL 2002, ch 112, § 6.


     22-24-66.   Damages that may be recovered. Any person entitled to bring an action under § 22-24-64 may recover the following damages:
             (1)      Economic damages, including the cost of treatment and rehabilitation, medical expenses, loss of economic or educational potential, loss of productivity, absenteeism, support expenses, accidents or injury, and any other pecuniary loss proximately caused by the proscribed conduct;
             (2)      Noneconomic damages, including physical and emotional pain, suffering, physical impairment, emotional distress, mental anguish, disfigurement, loss of enjoyment, loss of companionship, services, and consortium, and other nonpecuniary losses proximately caused by the proscribed conduct;
             (3)      Exemplary damages;
             (4)      Attorneys' fees; and
             (5)      Disbursements.

Source: SL 2002, ch 112, § 7; SL 2005, ch 120, § 316.


     22-24-67.   Statute of limitations. Any action for damages under §§ 22-24-60 to 22-24-68, inclusive, shall be commenced within six years of the time the plaintiff knew, or had reason to know, of any injury caused by violations of §§ 22-24-60 to 22-24-68, inclusive. The knowledge of a parent, guardian, or custodian may not be imputed to the minor.
     For a plaintiff, the statute of limitations under this section is tolled while any potential plaintiff is incapacitated by minority.

Source: SL 2002, ch 112, § 8.


     22-24-68.   Prepaid adult entertainment cards subject to seizure and destruction. As a public nuisance, all prepaid adult entertainment cards and prepaid adult entertainment telephone cards are subject to seizure and destruction without compensation by any law enforcement agency with appropriate jurisdiction.

Source: SL 2002, ch 112, § 9.


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