(A) Pursuant to Section 3-18-17 NMSA 1978, which allows a
municipality to prohibit and suppress the sale, possession or exhibition of
obscene publications, prints, pictures, illustrations; and as enabled by Section
6D, Article X of the New Mexico Constitution and Article I and Article IV,
Section 8 of the City Charter of the city.
(B) Nothing in this article is intended to cover, affect, include, or proscribe the specific conduct which is prohibited or regulated as to minors by Sections 30-37-1 through 30-37-10 NMSA 1978. Neither is this article intended to apply to any matter used in a bona fide program of medical or psychological treatment by licensed personnel, or distributed or displayed not-for-profit by a publicly owned or other nonprofit library or used in a bona fide educational program of a bona fide educational institution; while used, distributed, displayed or sold or held for use, distribution, display, or sale exclusively under these conditions. Nor is this article intended to apply to mere possession of obscene material in a private home for exclusively private use.
('74 Code, § 12-9-1) (Ord. 65-1988)
This article, may be cited as the "Obscene Material Ordinance."
('74 Code, § 12-9-2) (Ord. 65-1988)
It shall be an affirmative defense to prosecution under this article that the material in question depicts no more than mere nudity or is a film customarily and formally rated "G," "PG," "PG-13," or "R" by the Motion Picture Association of America (MPAA).
('74 Code, § 12-9-3) (Ord. 65-1988)
For the purpose of this article, the following definitions shall apply
unless the context clearly indicates or requires a different meaning.
DISTRIBUTE. To transfer possession, either publicly or
for consideration.
KNOWLEDGE OF THE CONTENT AND CHARACTER. Having general
knowledge or awareness of the character of the matters distributed and knowledge
of the nature and character of the matters whether or not there is actual
knowledge of the specific contents thereof. This knowledge can be proven by
direct or circumstantial evidence or both.
MATTER. Any book, magazine, newspaper, or other printed
or written material or any picture, drawing, photograph, motion picture, video
cassette, 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.
OBSCENE.
(1) The average person, applying local contemporary community
standards, would find that the matter taken as a whole, appeals to the prurient
interest. In order for an item as a whole to be found or intended to have an
appeal to the prurient interest, it is not necessary that the item be successful
in arousing or exciting any particular form of prurient interest either in the
hypothetical average person, in a member of its intended and probable recipient
group or in the trier of act; and
(2) The average person, applying local contemporary community
standards, would find that the matter depicts or describes in a patently
offensive way, sexual conduct as that term is described in this section.
Contemporary community standards are set by what is in fact accepted in the
community as a whole; and
(3) A reasonable person would find that the matter, taken as a
whole, lacks serious literary, artistic, political, or scientific value; and
(4) The matter describes or depicts violence or simulated
violence such as but not limited to murder, rape, torture, sadomasochistic
abuse, or beatings in association with or in conjunction with sexual conduct.
PATENTLY OFFENSIVE. So offensive on its face as to
affront current community standards of decency.
PERSON. Any individual, partnership, firm, or
association.
SADOMASOCHISTIC ABUSE. Flagellation or torture by or upon
a person 2clad 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, for the purpose or in the context of sexual gratification or abuse.
SEXUAL CONDUCT. Actual or simulated acts of, whether
involving persons or persons and animals:
(1) Sexual intercourse, including genital-genital,
oral-genital, anal-genital or oral-anal, whether between persons of the same or
opposite sex.
(2) Penetration of the vagina or rectum by any object except
when done as part of a recognized medical procedure.
(3) Sexual bestiality.
(4) Masturbation.
(5) Sadomasochistic abuse.
(6) Lewd exhibition of the genitals, pubic or rectal areas of
any person.
(7) Defecation or urination in the context of a sexual act.
SIMULATED. Any depicting of the genitals or rectal areas which gives the appearance of sexual conduct or incipient sexual conduct.
('74 Code, § 12-9-4) (Ord. 65-1988)
(A) Distribution of obscene matter:
(1) A person is guilty of distribution of obscene matter when,
having knowledge of its content and character, he:
(a) Sends or causes to be sent into this city for sale or
distribution;
(b) Brings or causes to be brought into this city for sale
or distribution; or
(c) In this city, he:
1. Prepares for distribution;
2. Publishes for distribution;
3. Prints for distribution;
4. Exhibits publicly or for consideration before an
audience of one or more;
5. Distributes;
6. Offers to distribute;
7. Has in his possession with intent to so
distribute, exhibit or offer to distribute, any obscene matter;
8. Presents or participates in presenting the live,
recorded or exhibited performance of any obscene matter to the public or an
audience of one or more for consideration or commercial purpose; or
9. Owns, leases, or manages any theatre, building,
structure, room, place, or commercial establishment and knowingly leases, lets,
or permits such building, structure, room, place or commercial establishment to
be used for the purpose of presenting obscene exhibitions or performances
publicly or for consideration or for the purpose of distributing obscene matters
or obscene devices.
(B) This section does not apply to a person who possesses or distributes obscene materials or participates in conduct otherwise proscribed by this section when the possession, participation, or conduct occurs in the course of law enforcement activities nor does it apply to those stated exceptions found in § 11-6-1(B).
('74 Code, § 12-9-5) (Ord. 65-1988)
Proceedings under this article shall be instituted by the City Attorney's or District Attorney's filing of formal criminal complaint in court alleging that specific material as defined herein is obscene by a law enforcement officer or prosecutor, and only after a finding of probable cause by a judge in the course of issuing either a search or arrest warrant regarding the matter.
('74 Code, § 12-9-7) (Ord. 65-1988)
(A) Expert testimony or other ancillary evidence is not required to
determine obscenity if the allegedly obscene item has been placed in evidence.
The matter itself is the best evidence of what it represents.
(B) The fact that other sexually explicit items are distributed in
the local community is not admissible as evidence of the local contemporary
community standard unless it is shown that:
(1) Such other item is similar to the item at issue.
Similarity shall be measured by the degree of sexual explicitness and type of
sexual conduct or activity depicted. It must also be in a similar medium as the
item at issue; and
(2) Such other item enjoys a reasonable degree of community acceptance.
('74 Code, § 12-9-8) (Ord. 65-1988)
There shall be no seizure of obscene material prior to an adversary proceeding on the issue of whether the material is in fact obscene, provided that the material may be seized for the bona fide purpose of preserving evidence, if seized pursuant to a warrant issued after a determination of probable cause that the material is obscene, and that following the seizure a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party. A trial on the merits of any alleged violation of § 11-6-5 shall constitute a prompt judicial hearing as required herein. However, on a showing to the trial court that other copies of the specific material are not available for exhibition, the court should permit the seized evidence to be copied where feasible so that exhibition can be continued pending judicial resolution of the obscenity issue in an adversary proceeding. Nothing herein shall be deemed to authorize the seizure of large quantities of allegedly obscene material prior to an adversary hearing unless otherwise authorized by law or a court order.
('74 Code, § 12-9-9) (Ord. 65-1988)
Any person who violates any of the provisions of this article shall be deemed guilty of misdemeanor, and upon conviction thereof shall be subject to the penalty provisions set forth in § 1-1-99. Each time this article is violated shall be considered a separate offense.
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('74 Code, § 12-9-4) (Ord. 65-1988)
(A) Distribution of obscene matter:
(1) A person is guilty of distribution of obscene matter when,
having knowledge of its content and character, he:
(a) Sends or causes to be sent into this city for sale or
distribution;
(b) Brings or causes to be brought into this city for sale
or distribution; or
(c) In this city, he:
1. Prepares for distribution;
2. Publishes for distribution;
3. Prints for distribution;
4. Exhibits publicly or for consideration before an
audience of one or more;
5. Distributes;
6. Offers to distribute;
7. Has in his possession with intent to so
distribute, exhibit or offer to distribute, any obscene matter;
8. Presents or participates in presenting the live,
recorded or exhibited performance of any obscene matter to the public or an
audience of one or more for consideration or commercial purpose; or
9. Owns, leases, or manages any theatre, building,
structure, room, place, or commercial establishment and knowingly leases, lets,
or permits such building, structure, room, place or commercial establishment to
be used for the purpose of presenting obscene exhibitions or performances
publicly or for consideration or for the purpose of distributing obscene matters
or obscene devices.
(B) This section does not apply to a person who possesses or distributes obscene materials or participates in conduct otherwise proscribed by this section when the possession, participation, or conduct occurs in the course of law enforcement activities nor does it apply to those stated exceptions found in § 11-6-1(B).