This section of Iowa law is presented because of its relevance in the discussion of the current ISU Computation Center "Usenet News Policy". DISCLAIMER: This text was input through use of a scanner from the Iowa Code. While spell-checking and a read-through were utilized to check the text, a "word-by-word" comparison was not done. This text should be used for non-legal reference only. The Computation Center is not responsible for any errors introduced in this text through the scanning process. IOWA CODE CHAPTER 728 OBSCENITY 728.1 Definitions. 728.2 Dissemination and exhibition of obscene material to minors. 728.3 Admitting minors to premises where obscene material is exhibited. 728.4 Sale of hard core pornography. 728.5 Public indecent exposure in certain establishments. 728.6 Civil suit to determine obscenity. 728.7 Exemptions for public libraries and educational institutions. 728.8 Suspension of licenses or permits. 728.9 Evidence considered. 728.10 Affirmative defense. 728.11 Uniform application. 728.12 Sexual exploitation of children. 728.13 Forfeiture. Repealed by 85 Acts, ch 201, Section 21. 728.14 Commercial film and photographic print processor reports of depictions of minors engaged in prohibited sexual acts. 728.15 Telephone dissemination of obscene material to minors. 728.1 Definitions. As used in this chapter, unless the context otherwise requires: 1. "Obscene material" is any material depicting or describing the genitals, sex acts, masturbation, excretory functions or sadomasochistic abuse which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for minors, would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political or artistic value. 2. "Material" means 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 any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials. 3. "Disseminate" means to transfer possession, with or without consideration. 4. "Knowingly" means being aware of the character of the matter. 5. "sadomasochistic abuse" means the infliction of physical or mental pain upon a person or the condition of a person being fettered, bound or other- wise physically restrained. 6. "Minor" means any person under the age of eighteen. 7. "Sex act" means any sexual contact, actual or simulated, either natural or deviate, between two or more persons, or between a person and an animal, by penetration of the penis into the vagina or anus, or by contact between the mouth or tongue and genitalia or anus, or by contact between a finger of one person and the genitalia of another person or by use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus. 8. "Prohibited sexual act" means any of the following: a. A sex act as defined in section 702.17; b. An act of bestiality involving a child; c. Fondling or touching the pubes or genitals of a child; d Fondling or touching the pubes or genitals of a person by a child; e. Sadomasochistic abuse of a child for the purpose of arousing or satisfying the sexual desires of a person who may view a depiction of the abuse; f. Sadomasochistic abuse of a person by a child for the purpose of arousing or satisfying the sexual desires of a person who may view a depiction of the abuse; or g. Nudity of a child for the purpose of arousing or satisfying the sexual desires of a person who may view a depiction of the nude child. h. "Promote" means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do any of these acts. [C75, 77, Section 725.1; C79, 81, Section 728.1] 83 Acts, ch 167, Section 1 728.2 Dissemination and exhibition of obscene material to minors. Any person, other than the parent or guardian of the minor, who knowingly disseminates or exhibits obscene material to a minor, including the exhibition of obscene material so that it can be observed by a minor on or off the premises where it is displayed, is guilty of a public offense and shall upon conviction be guilty of a serious misdemeanor. [C51, Section 2717; R60, Section 4359; C73, Section 4022; C97, Section 4951, 4955; C24, 27,31,35,39, Section 13188,13103; C46, 50,54, 58, 62, 66, 71, 73, Section 725.4, 725.8; C75, 77, Section 725.2; C79, 81, Section 728.2] 728.3 Admitting minors to premises where obscene material is exhibited. 1. A person who knowingly sells, gives, delivers, or provides a minor who is not a child with a pass or admits the minor to premises where obscene material is exhibited is guilty of a public offense and upon conviction is guilty of a serious misdemeanor. 2. A person who knowingly sells, gives, delivers, or provides a child with a pass or admits a child to a premise where obscene material is exhibited is guilty of a public offense and upon conviction is guilty of an aggravated misdemeanor. [C51, Section 2717; R60, Section 4359; C73, Section 4022; C97, Section 4951; 513, Section 4944-k; C24, 27, 31, 35, 39, Section 13185, 13189; C46, 50,54,58,62,66,71,73, Section 725.3,725.4; C75, 77, Section 725.3; C79, 81, Section 728.3] 83 Acts, ch 167, Section 2 728.4 Sale of hard core pornography. A person who knowingly sells or offers for sale material depicting a sex art involving sadomasochistic abuse, excretory functions, or bestiality, which the average adult taking the material as a whole in applying contemporary community standards would find appeals to the prurient interest and is patently offensive; and which material, taken as a whole, lacks serious literary, scientific, political, or artistic value, upon conviction is guilty of an aggravated misdemeanor charges under this section may only be brought by a county attorney or by the attorney general. [C79, 81, Section 728.4; 82 Acts, ch 1115, Section 1] 83 Acts, ch 167, Section 3 728.5 Public indecent exposure in certain establishments. A holder of a liquor license or beer permit or any owner, manager or person who exercises direct control over any licensed premises defined in section 123.3, subsection 31 shall be guilty of a serious misdemeanor under any of the following circumstances: 1. If such person allow or permit the actual or simulated public performance of any sex act upon or in such licensed premises. 2. If such person allow or permit the exposure of the genitals or buttocks or female breast of any person who acts as a waiter or waitress. 3. If such person allow or permit the exposure of the genitals or female breast nipple of any person who acts as an entertainer, whether or not the owner of the licensed premises in which the activity is performed employs or pays any compensation to such person to perform such activity. 4. If such person allow or permit any person to remain in or upon the licensed premises who exposes to public view the person's genitals, pubic hair, or anus. 5. If such person allow or permit the displaying of moving pictures, films, or pictures depicting any sex act or the display of the pubic hair, anus, or genitals upon or in such licensed premises. 6. If such person advertises that any activity prohibited by this section is allowed or permitted in such licensed premises. Provided that the provisions of this section shall not apply to a theater, concert hall, art center, museum, or similar establishment which is primarily devoted to the arts or theatrical performances and any of the circumstances contained in this section were permitted or allowed as part of such art exhibits or performances. [C79, 81, Section 728.5] 728.6 Civil suit to determine obscenity. Whenever the county attorney of any county has reasonable cause to believe that any person is engaged or plans to engage in the dissemination or exhibition of obscene material within the county attorney's county to minors the county attorney may institute a civil proceeding in the district court of the county to enjoin the dissemination or exhibition of obscene material to minors. Such application for injunction is optional and not mandatory and shall not be construed as a prerequisite to criminal prosecution for a violation of this chapter. [C75, 77, Section 725.4; C79, 81, Section 728.6] 728.7 Exemptions for public libraries and educational institutions. Nothing in this chapter prohibits the use of appropriate material for educational purposes in any accredited school, or any public library, or in any educational program in which the minor is participating. Nothing in this chapter prohibits the attendance of minors at an exhibition or display of art works or the use of any materials in any public library. [C75, 77, Section 725.5; C79, 81, Section 728.7] 728.8 Suspension of licenses or permits. Any person who knowingly permits a violation of section 728.2 or 728.3 to occur on premises under the person's control shall have all permits and licenses issued to the person under state or local law as a prerequisite for doing business on such premises revoked for a period of six months. The county attorney shall notify all agencies responsible for issuing licenses and permits of any conviction under section 728.2 or 728.3. [C75, 77, Section 725.6; C79, 81, Section 728.8] 728.9 Evidence considered. At a trial for violation of section 728.2 or 728.3 the court may consider the material, and receive into evidence in addition to other competent evidence, the offered testimony of experts pertaining to: 1. The artistic, literary, political or scientific value, if any, of the challenged material. 2. The degree of public acceptance within the community of the material or material of similar character. 3. The intent of the author, artist, producer, publisher or manufacturer in creating the material. 4. The advertising promotion and other circumstances relating to the sale of the material. [C75, 77, Section 725.7; C79, 81, Section 728.9] 728.10 Affirmative defense. In any prosecution for disseminating or exhibiting obscene material to minors, it is an affirmative defense that the defendant had reasonable cause to believe that the minor involved was eighteen years old or more and the minor exhibited to the defendant a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that such minor was eighteen years old or more or was accompanied by a parent or spouse eighteen years of age or more. [C75, 77, Section 725.8; C79, 81, Section 728.10] 728.11 Uniform application. In order to provide for the uniform application of the provisions of this chapter relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this chapter, and no municipality, county or other governmental unit within this state shall make any law ordinance or regulation relating to the availability of obscene materials. All such laws, ordinances or regulations shall be or become void, unenforceable and of no effect on January 1,1978. Nothing in this section shall restrict the zoning authority of cities and counties. [C75, 77, Section 725.9; C79, 81, Section 728.11] 728.12 Sexual exploitation of children. 1. A person commits a class "C" felony when the person employs, uses, persuades, induces, entices, coerces, knowingly permits, or otherwise causes a child to engage in a prohibited sexual act or in the simulation of a prohibited sexual act if the person knows, has reason to know, or intends that the act or simulated act may be photographed, filmed, or otherwise preserved in a negative, slide, book, magazine, or other print or visual medium. Notwithstanding section 902.9, the court may assess a fine of not more than fifty thousand dollars for each offense under this subsection in addition to imposing any other authorized sentence. 2. A person commits a class "D" felony when the person knowingly promotes any material visually depicting a live performance of a child engaging in a prohibited sexual act or in the simulation of a prohibited sexual act. Notwithstanding section 902.9, the court may assess a fine of not more than twenty-five thousand dollars for each offense under this subsection in addition to imposing any other authorized sentence. 3. A person who knowingly purchases any negative, slide, book, magazine or other print or visual medium depicting a child engaging in a prohibited sexual act or the simulation of a prohibited sexual act commits a serious misdemeanor. However, this section does not apply to law enforcement officers, court personnel, licensed physicians, licensed psychologists, or attorneys in the performance of their official duties. [C79, 81, Section 728.12] 83 Acts, ch 167, Section 4; 86 Acts, ch 1176, Section 1-3 728.13 Forfeiture. Repealed by 85 Acts, ch 201, Section 21. See ch 809. 728.14 Commercial film and photographic print processor reports of depictions of minors engaged in prohibited sexual acts. 1. A commercial film and photographic print processor who has knowledge of or observes, within the scope of the processor's professional capacity or employment, a file, photograph, video tape, negative, or slide which depicts a minor whom the processor knows or reasonably should know to be under the age of eighteen, engaged in a prohibited sexual act or in the simulation of a prohibited sexual act, shall report the depiction to the county attorney immediately or as soon as possible as required in this section. The processor shall not report to the county attorney depictions involving mere nudity of the minor, but shall report depictions involving a prohibited sexual act. This section shall not be construed to require a processor to review all films, photographs, video tapes, negatives, or slides delivered to the processor within the processor's professional capacity or employment. For purposes of this section, "prohibited sexual act" means any of the following: a. A sex act as defined in section 702.17. b. An act of bestiality involving a minor. c. Fondling or touching the pubes or genitals of a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a depiction of the act. d. Fondling or touching the pubes or genitals of a person by a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a depiction of the act. e. Sadomasochistic abuse of a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a depiction of the abuse. f. Sadomasochistic abuse of a person by a minor for the purpose of arousing or satisfying the sexual desires of a person who may view a depiction of the abuse. 2. A person who violates this section is guilty of a simple misdemeanor. 89 Acts, ch 263, section 4 728.15 Telephone dissemination of obscene material to minors. 1. A person shall not knowingly disseminate obscene material by the use of telephones or telephone facilities to a minor. A person who violates this subsection upon conviction is guilty of an aggravated misdemeanor. However, second and subsequent offenses of this subsection by a person who has been previously convicted of violating this subsection are class "D" felonies. As used in this subsection, a "person" excludes any information-access service provider that merely provides transmission capacity without control over the content of the transmission. 2. It shall be a defense in any prosecution for a violation of subsection 1 by a person who knowingly disseminates obscene material by the use of telephones or telephone facilities to a minor that the defendant has taken either of the following measures to restrict access to the obscene material: a. Required the person receiving the obscene material to use and authorized access or identification code, as provided by the information provider, before transmission of the obscene material begins, where the defendant has previously issued the code by mailing it to the applicant after taking reasonable measures to ascertain that the applicant was eighteen years of age or older and has established a procedure to immediately cancel the code of any person after receiving notice, in writing or by telephone, that the code has been lost, stolen, or used by persons under the age of eighteen or that the code is no longer desired. b. Required payment by credit card before transmission of the obscene material. 3. Any list of applicants or recipients compiled or maintained by an information-access service provider for the purposes of compliance with subsection 2 is confidential and shall not be sold or otherwise disseminated except upon order of the court. 89 Acts, ch 263, section 5