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Title XXXVIII CRIMES AND PUNISHMENT; PEACE OFFICERS AND PUBLIC DEFENDERS

  Chapter 573back to chapter 573

  573.010.  Definitions. — As used in this chapter the following terms shall mean:

  (1)  "Adult cabaret", a nightclub, bar, juice bar, restaurant, bottle club, or other commercial establishment, regardless of whether alcoholic beverages are served, which regularly features persons who appear semi-nude;

  (2)  "Characterized by", describing the essential character or dominant theme of an item;

  (3)  "Child", any person under the age of fourteen;

  (4)  "Child pornography":

  (a)  Any obscene material or performance depicting sexual conduct, sexual contact as defined in section 566.010, or a sexual performance and which has as one of its participants or portrays as an observer of such conduct, contact, or performance a minor; or

  (b)  Any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where:

  a.  The production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

  b.  Such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct; or

  c.  Such visual depiction has been created, adapted, or modified to show that an identifiable minor is engaging in sexually explicit conduct.  "Identifiable minor" means a person who was a minor at the time the visual depiction was created, adapted, or modified; or whose image as a minor was used in creating, adapting, or modifying the visual depiction; and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature.  The term "identifiable minor" shall not be construed to require proof of the actual identity of the identifiable minor;

  (5)  "Employ", "employee", or "employment", any person who performs any service on the premises of a sexually oriented business, on a full-time, part-time, or contract basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise.  Employee does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises;

  (6)  "Explicit sexual material", any pictorial or three-dimensional material depicting human masturbation, deviate sexual intercourse, sexual intercourse, direct physical stimulation or unclothed genitals, sadomasochistic abuse, or emphasizing the depiction of postpubertal human genitals; provided, however, that works of art or of anthropological significance shall not be deemed to be within the foregoing definition;

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

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

  (9)  "Minor", any person less than eighteen years of age;

  (10)  "Nudity" or "state of nudity", the showing of the human genitals, pubic area, vulva, anus, anal cleft, or the female breast with less than a fully opaque covering of any part of the nipple or areola;

  (11)  "Obscene", any material or performance if, taken as a whole:

  (a)  Applying contemporary community standards, its predominant appeal is to prurient interest in sex; and

  (b)  The average person, applying contemporary community standards, would find the material depicts or describes sexual conduct in a patently offensive way; and

  (c)  A reasonable person would find the material lacks serious literary, artistic, political or scientific value;

  (12)  "Operator", any person on the premises of a sexually oriented business who causes the business to function, puts or keeps the business in operation, or is authorized to manage the business or exercise overall operational control of the business premises.  A person may be found to be operating or causing to be operated a sexually oriented business whether or not such person is an owner, part owner, or licensee of the business;

  (13)  "Performance", any play, motion picture film, videotape, dance or exhibition performed before an audience of one or more;

  (14)  "Pornographic for minors", any material or performance if the following apply:

  (a)  The average person, applying contemporary community standards, would find that the material or performance, taken as a whole, has a tendency to cater or appeal to a prurient interest of minors; and

  (b)  The material or performance depicts or describes nudity, sexual conduct, the condition of human genitals when in a state of sexual stimulation or arousal, or sadomasochistic abuse in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for minors; and

  (c)  The material or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors;

  (15)  "Premises", the real property upon which a sexually oriented business is located, and all appurtenances thereto and buildings thereon, including but not limited to the sexually oriented business, the grounds, private walkways, and parking lots or parking garages or both;

  (16)  "Promote", to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same, by any means including a computer;

  (17)  "Regularly", the consistent and repeated doing of the act so described;

  (18)  "Sadomasochistic abuse", flagellation or torture by or upon a person as an act of sexual stimulation or gratification;

  (19)  "Semi-nude" or "state of semi-nudity", the showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at such point, or the showing of the male or female buttocks.  Such definition includes the lower portion of the human female breast, but shall not include any portion of the cleavage of the female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part;

  (20)  "Sexual conduct", actual or simulated, normal or perverted acts of human masturbation; deviate sexual intercourse; sexual intercourse; or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act of apparent sexual stimulation or gratification or any sadomasochistic abuse or acts including animals or any latent objects in an act of apparent sexual stimulation or gratification;

  (21)  "Sexually explicit conduct", actual or simulated:

  (a)  Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

  (b)  Bestiality;

  (c)  Masturbation;

  (d)  Sadistic or masochistic abuse; or

  (e)  Lascivious exhibition of the genitals or pubic area of any person;

  (22)  "Sexually oriented business" includes:

  (a)  An adult bookstore or adult video store.  "Adult bookstore" or "adult video store" means a commercial establishment which, as one of its principal business activities, offers for sale or rental for any form of consideration any one or more of the following:  books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of specified sexual activities or specified anatomical areas.  A principal business activity exists where the commercial establishment:

  a.  Has a substantial portion of its displayed merchandise which consists of such items; or

  b.  Has a substantial portion of the wholesale value of its displayed merchandise which consists of such items; or

  c.  Has a substantial portion of the retail value of its displayed merchandise which consists of such items; or

  d.  Derives a substantial portion of its revenues from the sale or rental, for any form of consideration, of such items; or

  e.  Maintains a substantial section of its interior business space for the sale or rental of such items; or

  f.  Maintains an adult arcade.  "Adult arcade" means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are regularly maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are characterized by their emphasis upon matter exhibiting specified sexual activities or specified anatomical areas;

  (b)  An adult cabaret;

  (c)  An adult motion picture theater.  "Adult motion picture theater" means a commercial establishment where films, motion pictures, video cassettes, slides, or similar photographic reproductions, which are characterized by their emphasis upon the display of specified sexual activities or specified anatomical areas are regularly shown to more than five persons for any form of consideration;

  (d)  A semi-nude model studio.  "Semi-nude model studio" means a place where persons regularly appear in a state of semi-nudity for money or any form of consideration in order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons.  Such definition shall not apply to any place where persons appearing in a state of semi-nudity do so in a modeling class operated:

  a.  By a college, junior college, or university supported entirely or partly by taxation;

  b.  By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or

  c.  In a structure:

  (i)  Which has no sign visible from the exterior of the structure and no other advertising that indicates a semi-nude person is available for viewing; and

  (ii)  Where, in order to participate in a class, a student must enroll at least three days in advance of the class;

  (e)  A sexual encounter center.  "Sexual encounter center" means a business or commercial enterprise that, as one of its principal purposes, purports to offer for any form of consideration physical contact in the form of wrestling or tumbling between two or more persons when one or more of the persons is semi-nude;

  (23)  "Sexual performance", any performance, or part thereof, which includes sexual conduct by a child who is less than seventeen years of age;

  (24)  "Specified anatomical areas" include:

  (a)  Less than completely and opaquely covered:  human genitals, pubic region, buttock, and female breast below a point immediately above the top of the areola; and

  (b)  Human male genitals in a discernibly turgid state, even if completely and opaquely covered;

  (25)  "Specified sexual activity", includes any of the following:

  (a)  Intercourse, oral copulation, masturbation, or sodomy; or

  (b)  Excretory functions as a part of or in connection with any of the activities described in paragraph (a) of this subdivision;

  (26)  "Substantial", at least thirty percent of the item or items so modified;

  (27)  "Visual depiction", includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.

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(L. 1977 S.B. 60, A.L. 1985 H.B. 366, et al., A.L. 1987 H.B. 113, et al., A.L. 1989 H.B. 225, A.L. 2000 S.B. 757 & 602, A.L. 2006 H.B. 1698, et al., A.L. 2014 S.B. 491)

Effective 1-01-17


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573.010 1/1/2017
573.010 6/5/2006 1/1/2017

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