The Vermont Statutes Online

Title 13: Crimes and Criminal Procedure

Chapter 063: Obscenity

• § 2801. Definitions

  As used in this act:

  (1) “Minor” means any person less than 18 years old.

  (2) “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 discernably turgid state.

  (3) “Sexual conduct” means acts 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, breast.

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

  (5) “Sado-masochistic abuse” means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.

  (6) “Harmful to minors” means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when 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 in the State of Vermont as a whole with respect to what is suitable material for minors; and

  (C) Is taken as a whole, lacks serious literary, artistic, political, or scientific value, for minors.

  (7) “Advertising purposes” means purposes of propagandizing in connection with the commercial sale of a product or type of product, the commercial offering of a service, or the commercial exhibition of an entertainment.

  (8) “Displays publicly” means the exposing, placing, posting, exhibiting, or in any fashion displaying in any location, whether public or private, an item in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a street, highway, sidewalk, or lobby of a building that has unrestricted access by the public. (Amended 1967, No. 340 (Adj. Sess.), § 1, eff. March 23, 1968; 1973, No. 204 (Adj. Sess.), §§ 1, 2.)

• § 2802. Disseminating indecent material to a minor in the presence of the minor

  (a) No person may, with knowledge of its character and content, sell, lend, distribute, or give away to a minor:

  (1) any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image, including any such representation or image which is stored electronically, of a person or portion of the human body which depicts nudity, sexual conduct, or sado-masochistic abuse and which is harmful to minors; or

  (2) any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in subdivision (1) of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sado-masochistic abuse and which, taken as a whole, is harmful to minors.

  (b) No person may, with knowledge of the character and content of a motion picture, show, or other presentation which, in whole or in part, depicts nudity, sexual conduct, or sado-masochistic abuse, and which is harmful to minors:

  (1) exhibit such a motion picture, show, or other presentation to a minor; or

  (2) sell or give away to a minor an admission ticket or pass to premises whereon there is exhibited or to be exhibited such a motion picture, show, or other presentation; or

  (3) admit a minor to premises whereon there is exhibited or to be exhibited such a motion picture, show, or other presentation.

  (c) This section shall apply only to acts occurring in the presence of the minor. (Amended 1967, No. 340 (Adj. Sess.), § 2, eff. March 23, 1968; 1999, No. 124 (Adj. Sess.), § 7; 2001, No. 41, § 7.)

• § 2802a. Disseminating indecent material to a minor outside the presence of the minor

  (a) No person may, with knowledge of its character and content, and with actual knowledge that the recipient is a minor, sell, lend, distribute, or give away:

  (1) any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image, including any such representation or image which is communicated, transmitted, or stored electronically, of a person or portion of the human body which depicts nudity, sexual conduct, or sado-masochistic abuse and which is harmful to minors; or

  (2) any book, pamphlet, magazine, printed matter, however reproduced, or sound recording which contains any matter enumerated in subdivision (1) of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sado-masochistic abuse and which, taken as a whole, is harmful to minors.

  (b) No person may, with actual knowledge that the recipient or viewer is a minor, and with knowledge of the character and content of a motion picture, show or other presentation, including any such motion picture, show, or presentation which is communicated, transmitted, or stored electronically, which, in whole or in part, depicts nudity, sexual conduct, or sado-masochistic abuse, and which is harmful to minors:

  (1) exhibit such a motion picture, show, or other presentation to a minor; or

  (2) sell or give away to a minor an admission ticket or pass to premises whereon there is exhibited or to be exhibited such a motion picture, show, or other presentation.

  (c) This section shall only apply to acts occurring outside the presence of the minor. (Added 2001, No. 41, § 8.)

• § 2802b. Minor electronically disseminating indecent material to another person

  (a)(1) No minor shall knowingly and voluntarily and without threat or coercion use a computer or electronic communication device to transmit an indecent visual depiction of himself or herself to another person.

  (2) No person shall possess a visual depiction transmitted to the person in violation of subdivision (1) of this subsection. It shall not be a violation of this subdivision if the person took reasonable steps, whether successful or not, to destroy or eliminate the visual depiction.

  (b) Penalties; minors.

  (1) Except as provided in subdivision (3) of this subsection, a minor who violates subsection (a) of this section shall be adjudicated delinquent. An action brought under this subdivision (1) shall be filed in family court and treated as a juvenile proceeding pursuant to 33 V.S.A. chapter 52, and may be referred to the juvenile diversion program of the district in which the action is filed.

  (2) A minor who violates subsection (a) of this section and who has not previously been adjudicated in violation of that section shall not be prosecuted under chapter 64 of this title (sexual exploitation of children), and shall not be subject to the requirements of chapter 167, subchapter 3 of this title (sex offender registration).

  (3) A minor who violates subsection (a) of this section who has previously been adjudicated in violation of that section may be adjudicated in family court as under subdivision (b)(1) of this section or prosecuted in district court under chapter 64 of this title (sexual exploitation of children), but shall not be subject to the requirements of chapter 167, subchapter 3 of this title (sex offender registration).

  (4) Notwithstanding any other provision of law, the records of a minor who is adjudicated delinquent under this section shall be expunged when the minor reaches 18 years of age.

  (c) Penalties; adults. A person 18 years of age or older who violates subdivision (a)(2) of this section shall be fined not more than $300.00 or imprisoned for not more than six months, or both.

  (d) This section shall not be construed to prohibit a prosecution under section 1027 (disturbing the peace by use of telephone or electronic communication), 2601 (lewd and lascivious conduct), 2605 (voyeurism), or 2632 (prohibited acts) of this title, or any other applicable provision of law. (Added 2009, No. 58, § 4.)

• § 2803. Distribution of indecent material

  No person may hire, employ, or permit a minor to sell, lend, distribute, or give away material, the sale, lending, distribution, or giving away of which to minors is prohibited by section 2802 of this title. (Amended 1967, No. 340 (Adj. Sess.), § 3.)

• § 2804. Exhibition of motion pictures

  No person may, with knowledge of the character and content, exhibit a motion picture, show, or other presentation, harmful to minors as defined in subdivision 2801(6) of this title, which in whole or part depicts nudity and sexual conduct, as defined in section 2801, such that it may be viewed by minors from public property or private property not under the control of the person exhibiting the motion picture, show, or other presentation. (Added 1971, No. 192 (Adj. Sess.); amended 1977, No. 262 (Adj. Sess.), eff. April 19, 1978.)

• § 2804a. Publicly displaying sex or nudity for advertising purposes

  No person may knowingly, publicly display nudity or sex for advertising purposes. A violation of this section occurs if a person:

  (1) displays publicly or causes to be displayed publicly for advertising purposes a picture, photograph, drawing, sculpture, or other visual representation or image, including any such representation or image which is communicated, transmitted, or stored electronically, of a person or portion of the human body that depicts nudity, sado-masochistic abuse, sexual conduct, or sexual excitement, which is harmful to minors, or any page, poster, or other written or printed matter bearing such representation or a verbal description or narrative account of such items or activities; or

  (2) permits any public display described in this section on premises owned, rented, or operated by him or her; or

  (3) for advertising purposes, purchases space in any newspaper, magazine, or other circular, printed in this State, in order to insert any article or advertisement which contains material harmful to minors. (Added 1973, No. 204 (Adj. Sess.), § 3; amended 1999, No. 124 (Adj. Sess.), § 8.)

• § 2804b. Displaying obscene materials to minors

  A person commits the crime of displaying obscene materials to minors if, being the owner, operator, or manager of a business or acting in a managerial capacity, he or she knowingly or recklessly permits a minor who is not accompanied by his or her parent or lawful guardian to enter or remain on the premises, if in that part of the premises where the minor is so permitted to be, there is visibly displayed:

  (1) any picture, photograph, drawing, sculpture or other visual representation or image of a person or portion of the human body that depicts nudity, sexual conduct, sexual excitement, or sado-masochistic abuse which is harmful to minors; or

  (2) any book, magazine, paperback, pamphlet, or other written or printed matter, however reproduced, that pictorially reveals a person or portion of the human body, depicts nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, which is harmful to minors. (Added 1973, No. 204 (Adj. Sess.), § 4.)

• § 2805. Presumption and defense

  (a) A person who engages in conduct prohibited by section 2802, 2802a, 2803, 2804, 2804a, or 2804b of this title is presumed to do so with knowledge of the character and content of the material, or the motion picture, show, or presentation exhibited or to be exhibited.

  (b) In any prosecution arising under section 2802, 2802a, 2803, or 2804 of this title, it is an affirmative defense:

  (1) that the minor as to whom the offense is alleged to have been committed exhibited to the accused a draft card, driver’s license, birth certificate, or other official or apparently official document purporting to establish that the minor was 18 years of age or older; or

  (2) that the defendant was in a parental or guardianship relationship with the minor; or that the minor was accompanied by a parent or legal guardian; or

  (3) that the defendant was a bona fide school, museum, or public library, or was a person acting in the course of employment as an employee or official of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization.

  (c) In any prosecution arising out of sections 2804a and 2804b of this title, it shall be an affirmative defense for the defendant to prove:

  (1) that the public display, even though in connection with a commercial venture, was primarily for literary, political, scientific, or artistic purposes; or

  (2) that the public display was exhibited by a bona fide art, antique, or similar gallery or exhibition, and visible in a normal display setting; or

  (3) that the defendant was a bona fide school, museum, or public library, or was a person acting in the course of employment as an employee or official of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization. (Amended 1967, No. 340 (Adj. Sess.), § 4, eff. March 23, 1968; 1973, No. 204 (Adj. Sess.), § 5; 2001, No. 41, § 9.)

• § 2806. Severability

  If any part or provision of this section or its application to any person or circumstances is for any reason adjudged invalid or unconstitutional by a court of competent jurisdiction, that judgment shall be limited in its effect to the facts involved in the controversy in which that judgment shall have been rendered and shall not affect the validity of the remainder of this section or its application to other persons and circumstances; and the Legislature declares that it would have enacted this section without the invalid part, provision, or application had that invalidity been apparent. (Amended 1967, No. 340 (Adj. Sess.), § 5.)

• § 2807. Penalty

  A person who violates any provision of section 2802, 2802a, 2803, 2804, 2804a, or 2804b of this title shall be imprisoned not more than one year or fined not more than $1,000.00, or both. (Added 1967, No. 340 (Adj. Sess.), § 6; amended 1973, No. 204 (Adj. Sess.), § 6; 2001, No. 41, § 10.)

• § 2808. Uniformity

  The provisions of this chapter shall be applicable and uniform throughout the State and all political subdivisions and municipalities therein, and no local authority shall enact any ordinances, rules, or regulations in conflict with the provisions thereof. (Added 1973, No. 204 (Adj. Sess.), § 7.)

• § 2809. Civil action prerequisite for criminal prosecution

  Where evidence of conduct prohibited under subdivision 2802(a)(2) of this title consists entirely of written matter in a book or other publication however reproduced, a criminal prosecution may be commenced only after violation of a final injunction prohibiting such conduct. (Added 1973, No. 204 (Adj. Sess.), § 8.)

• § 2810. Commencement of civil action

  (a) Whenever a prosecuting officer within this State has cause to believe that any person is engaging in or is about to engage in this State in conduct prohibited by this chapter, he or she may institute a civil action in the Superior Court in the county wherein such act is believed to be taking place or about to take place seeking a declaratory judgment that the material involved is in fact harmful to minors and seeking an injunction against the prohibited conduct.

  (b) Any person who has or is about to disseminate, exhibit, publicly display, or display to minors the material involved in such a proceeding may, as a matter or right, intervene in the proceedings and shall thereupon have all of the rights of a party and shall be bound by a determination in the proceeding.

  (c) The provisions of the Vermont Rules of Civil Procedure shall apply to a proceeding hereunder except as otherwise provided or inconsistent with this chapter.

  (d) Upon the issuance of a search warrant pursuant hereto by a judge of a Superior Court of this State, a single copy of the material purportedly harmful to minors may be seized to secure and preserve evidence for civil and criminal proceedings under this chapter, subject to the following procedures:

  (1) If only a single copy of such material is available within the jurisdiction, the defendant shall provide a duplicate to or make that copy available for duplication by the prosecuting officer during such period when the material is not on sale or exhibition.

  (2) If only a single copy is available in the jurisdiction and circumstances prevent its duplication as provided for in subdivision (1) of this subsection, the prosecuting officer may, upon a showing of probable cause that such material will not be available at trial, obtain a special warrant for the sole purpose of duplicating the material to secure and preserve it as evidence. Application for the special warrant shall be on notice to defendant and include a statement setting out the circumstances which make duplication under subdivision (1) of this subsection impossible, the time and date the materials are to be seized and specify the time and date, not to exceed 24-hours after such seizure, when such material is to be returned. (Added 1973, No. 204 (Adj. Sess.), § 9.)

• § 2811. Procedure

  Any party or intervenor shall have the right to trial by jury to determine whether the material is harmful to minors. The verdict of the jury shall be unanimous. At the trial, all parties shall have the right to submit evidence, including expert testimony. (Added 1973, No. 204 (Adj. Sess.), § 10.)

• § 2812. Judgment

  (a) If the court or jury, as the case may be, finds the material not to be harmful to minors, the court shall enter said declaration in the judgment and dismiss the suit.

  (b) If the court or jury, as the case may be, finds the material to be harmful to minors, the court may in its judgment or in subsequent orders of enforcement thereof enter a permanent injunction against any and all defendants prohibiting them from disseminating, distributing, exhibiting, or displaying the materials declared to be harmful to minors.

  (c) A final declaration obtained pursuant to this act may be used to form the basis for an injunction or to establish scienter in a criminal proceeding. (Added 1973, No. 204 (Adj. Sess.), § 11.)

• § 2813. Injunctions

  The prosecuting officer may seek a preliminary injunction on notice to defendant and upon a showing of compelling facts which demonstrate that an irreparable harm will be inflicted on the community if the materials are disseminated until such time as a permanent injunction, if warranted, can be obtained. (Added 1973, No. 204 (Adj. Sess.), § 12.)