Chapter 9.40
OBSCENE MATERIAL
Sections:
9.40.010 Purpose – Policy – Authority –Exclusion.
9.40.030 Obscene display or distribution.
9.40.040 Destruction of materials seized.
9.40.010 Purpose – Policy – Authority –Exclusion.
The board of trustees hereby declares the promotion, commercial exhibition or sale or possession for such purposes of obscene material as defined below to be public nuisances. Nothing herein is intended to cover, affect, include or proscribe the specific conduct, matters or material which are prohibited or regulated as to minors by, or to apply to minors who are protected by Sections 30-37-1 through 30-37-8, NMSA, 1978 Compilation. Neither is this chapter intended to apply to any matter used in a bona fide program of medical or psychological treatment, or a distributed or displayed nonprofit program by a publicly owned or nonprofit library or educational institution, or used in an educational program of a bona fide for-profit educational institution; or while used, distributed, displayed or sold or held for use, distribution, display or sale exclusively under these conditions. Nor is this chapter intended to apply to possession of obscene material in a private home for exclusively private use. [Ord. 94-01 § 1; prior code § 8-11-1]
9.40.020 Definitions.
A. In this chapter:
1. “Obscene” means material or a performance that:
a. The average person, applying contemporary community standards, would find that taken as a whole, appeals to the prurient interest in sex.
b. The average person, applying contemporary community standards, would find that it depicts or describes:
i. Patently offensive representations or descriptions of sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
ii. Patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and
c. Work which taken as a whole, lacks serious literary, artistic, political, or scientific value.
2. “Material” means anything tangible that is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound, or in any other manner, which includes but is not limited to magazines, books, leaflets, pamphlets, booklets, pictures, photographs, drawings, films, negatives, videos, slides, or motion pictures, but does not include an actual three-dimensional obscene device.
3. “Promote” means to manufacture, issue, sell, give, provide, lease, rent, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same. Nothing herein shall be construed so as to restrict or prohibit the use of material or devices by adults in the privacy of personal residences not for monetary gain or valuable consideration.
4. “Obscene device” means a device including a dildo, or artificial vagina designed or marketed as useful primarily for the stimulation of human genital organs.
5. “Performance” means a play, motion picture, dance, or other exhibition performed before an audience.
6. “Community” means the geographical area of the town of Mesilla.
7. “Prurient interest” means a lascivious, shameful, or morbid interest in nudity, sex, or excretion.
B. If any of the depiction or descriptions of sexual conduct described in this section are declared by a court of competent jurisdiction to be unlawfully included herein, this declaration shall not invalidate this section as to other patently offensive sexual conduct or material included herein. [Ord. 94-01 § 1; prior code § 8-11-2]
9.40.030 Obscene display or distribution.
A. A person commits an offense if he, knowing its contents and character:
1. Promotes or possesses with intent to promote an obscene material or obscene device; or
2. Produces, presents, or directs an obscene performance.
B. An offense under this chapter is a misdemeanor punishable by a fine not to exceed $300.00 or imprisonment for 90 days or both. [Ord. 94-01 § 1; prior code § 8-11-3]
9.40.040 Destruction of materials seized.
Any material or device, as previously defined in this chapter, seized pursuant to this chapter is contraband and shall be destroyed after obtaining an order for its destruction from the court. [Ord. 94-01 § 1; prior code § 8-11-4]