County of York, VA
 
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Table of Contents
Table of Contents
Unless otherwise specifically provided, a violation of any provision of this chapter shall constitute a Class 1 misdemeanor.
As used in this chapter, the word "obscene" means that which, considered as a whole, has as its dominant theme or purpose an appeal to prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof, or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters, and which, taken as a whole, lacks serious literary, artistic, political or scientific value.
[Ord. No. O97-2, 2-19-1997]
For the purpose of this article, obscene items shall include:
(a) 
Any obscene book; or
(b) 
Any obscene leaflet, pamphlet, magazine, booklet, picture, painting, bumper sticker, drawing, photograph, film, negative, slide, motion picture; videotape recording; or
(c) 
Any obscene figure, object, article, instrument, novelty device or recording or transcription used or intended to be used in disseminating any obscene song, ballad, words or sounds.
(a) 
It shall be unlawful for any person to knowingly:
(1) 
Prepare an obscene item for the purpose of sale or distribution; or
(2) 
Print, copy, manufacture, produce or reproduce any obscene item for purposes of sale or distribution; or
(3) 
Publish, sell, rent, lend, transport in intrastate commerce or distribute or exhibit any obscene item, or offer to do any of these things; or
(4) 
Have in such person's possession, with intent to sell, rent, lend, transport or distribute any obscene item.
Possession in public or in a public place of any obscene item shall be deemed prima facie evidence of a violation of this section.
(b) 
For the purposes of this section, "distribute" shall mean delivery in person or by mail or messenger or by any other means by which obscene items may pass from one person to another.
It shall be unlawful for any person to knowingly:
(a) 
Produce, promote, prepare, present, manage, direct, carry on or participate in any obscene exhibition or performance, including the exhibition or performance of any obscene motion picture, play, drama, show, entertainment, exposition, tableau or scene; provided, that no employee of any person or legal entity operating a theater, garden, building, structure, room or place which presents such obscene exhibition or performance shall be subject to prosecution under this section if the employee is not the manager of the theater or an officer of such entity, and has no financial interest in such theater, other than receiving salary and wages; or
(b) 
Own, lease or manage any theater, garden, building, structure, room or place and lease, let or permit such theater, garden, building, structure, room or place to be used for the purpose of presenting such obscene exhibition or performance.
No person shall knowingly prepare, print, publish or circulate, or cause to be prepared, printed, published or circulated, any notice or advertisement of any obscene item referred to in § 15.5-3, or of any obscene performance or exhibition referred to in § 15.5-5, stating or indicating where such obscene items, exhibition or performance may be purchased, obtained, seen or heard.
It shall be unlawful for any person to knowingly expose, place, display, post up, exhibit, paint, print or mark, or cause to be exposed, placed displayed, posted, exhibited, painted, printed or marked, in or on any building, structure, billboard, wall or fence, or on any street, or in or upon any public place, any placard, poster, banner, bill, writing or picture which is obscene, or which advertises or promotes any obscene item referred to in § 15.5-3, or any obscene exhibition or performance referred to in § 15.5-5, or to knowingly permit the same to be displayed on property belonging to or controlled by such person.
No person shall, as a condition to any sale, allocation, consignment or delivery for resale of any paper, magazine, book, periodical or publication, require that the purchaser or consignee receive for resale any other article, book or other publication which is obscene; nor shall any person deny or threaten to deny any franchise or impose or threaten to impose any penalty, financial or otherwise, by reason of the failure or refusal of any person to accept such articles, books or publications, or by reason of the return thereof.
(a) 
It shall be unlawful for any person to knowingly:
(1) 
Photograph himself or any other person, for purposes of preparing an obscene film, photograph, negative, slide or motion picture for purposes of sale or distribution; or
(2) 
Model, pose, act or otherwise assist in the preparation of any obscene film, photograph, negative, slide or motion picture for purposes of sale or distribution.
(b) 
Any violation of this section shall constitute a Class 3 misdemeanor.
[Ord. No. O97-2, 2-19-1997]
No person shall intentionally make an obscene display or exposure of his or her person, or the private parts thereof, in any public place, or in any place where others are present, or procure another to so expose himself or herself. No person shall be deemed to be in violation of this section for breast-feeding a child in any public place or any place where others are present.
[Ord. No. O97-2, 2-19-1997]
(a) 
As used in this section, "state of nudity" means a state of undress so as to expose the human male or female genitals, pubic area or buttocks or to cover any of them with less than a fully opaque covering; or the showing of the female breast or any portion thereof below the top of the nipple, or the covering of the breast or any portion thereof below the top of the nipple with less than a fully opaque covering, or the depiction of covered or uncovered male genitals in a discernibly turgid state.
(b) 
Every person who knowingly, voluntarily and intentionally appears in public or in a public place or in a place open to the public or open to public view in a state of nudity, or employs, encourages or procures another person so to appear, shall be guilty of a misdemeanor.
(c) 
Nothing contained in this section shall be construed to apply to the exhibition, presentation, showing or performance of any play, ballet, drama, tableau, production or motion picture in any theater, concert hall, museum of fine arts, school, institution of higher learning or other similar establishment which is primarily devoted to such exhibitions, presentations, shows or performances as a form of expression of opinion, communication, speech, ideas, information, art or drama.
[Ord. No. O97-2, 2-19-1997]
It shall be unlawful for any person knowingly to hire, employ, use or permit any person under the age of 18 years to do or assist in doing any act or thing constituting any offense under this article.
(a) 
Whenever any citizen of the County or the County attorney has reasonable cause to believe that any person is engaged in the sale or commercial distribution of any obscene book in the County, such citizen or the County attorney may institute a proceeding in the circuit court of the County for adjudication of the obscenity of the book.
(b) 
A proceeding under this section shall be instituted by filing with the court a petition:
(1) 
Directed against the book by name or description;
(2) 
Alleging the obscene nature of the book; and
(3) 
Listing the names and addresses, if known, of the author, publisher and all other persons interested in its sale or distribution.
(c) 
Upon the filing of a petition pursuant to this section, the court, in term or in vacation, shall forthwith examine the book alleged to be obscene. If the court finds no probable cause to believe the book obscene, the judge thereof shall dismiss the petition; but if the court finds probable cause to believe the book obscene, the judge thereof shall issue an order to show cause why the book should not be adjudicated obscene. The order to show cause shall be:
(1) 
Directed against the book by name or description;
(2) 
Published once a week for two successive weeks in a newspaper of general circulation within the County;
(3) 
If their names and addresses are known, served by registered mail upon the author, publisher and all other persons interested in the sale or distribution of the book; and
(4) 
Returnable 21 days after its service by registered mail or the commencement of its publication, whichever is later.
(d) 
When an order to show cause is issued pursuant to this section, and upon four day's notice to be given to the persons and in the manner prescribed by the court, the court may issue a temporary restraining order against the sale or distribution of the book alleged to be obscene.
(e) 
On or before the return date specified in the order to show cause issued under Subsection (c), the author, publisher and any person interested in the sale or distribution of the book may appear and file an answer. The court may, by order, permit any other person to appear and file an answer amicus curiae.
(f) 
If no one appears and files an answer on or before the return date specified in the order to show cause, the court, upon being satisfied that the book is obscene, shall order the clerk of the court to enter judgment that the book is obscene, but the court, in its discretion, may except from its judgment a restricted category of persons to whom the book is not obscene.
(g) 
If an appearance is entered and an answer filed, the court shall order the proceedings set on the calendar for a prompt hearing. The court shall conduct the hearing in accordance with the rules of civil procedure applicable to the trial of cases by the court without a jury. At the hearing, the court shall receive evidence, including the testimony of experts, if such evidence be offered, pertaining to:
(1) 
The artistic, literary, medical, scientific, cultural and educational value, if any, of the book considered as a whole;
(2) 
The degree of public acceptance of the book, or books of similar character, within the County;
(3) 
The intent of the author and publisher of the book;
(4) 
The reputation of the author and publisher;
(5) 
The advertising, promotion and other circumstances relating to the sale of the book;
(6) 
The nature of classes of persons, including scholars, scientists and physicians, for whom the book may not have prurient appeal, and who may be subject to exception pursuant to Subsection (f).
(h) 
In making a decision on the obscenity of the book, the court shall consider, among other things, the evidence offered pursuant to Subsection (g), if any, and shall make a written determination upon every such consideration relied upon in the proceeding in its findings of fact and conclusions of law or in a memorandum accompanying them.
(i) 
If it finds the book not obscene, the court shall order the clerk of the court to enter judgment accordingly. If it finds the book obscene, the court shall order the clerk of the court to enter judgment that the book is obscene, but the court, in its discretion, may except from its judgment a restricted category of persons to whom the book is not obscene.
(j) 
While a temporary restraining order made pursuant to Subsection (d) is in effect, or after the entry of a judgment pursuant to Subsection (f) or (i), any person who publishes, sells, rents, lends transports in intrastate commerce or distributes or exhibits the book, or has the book in possession with intent to publish, sell, rent, lend, transport in the city, or distribute or exhibit the book, is presumed to have knowledge that the book is obscene under the provisions of this article.
(k) 
Any party to a proceeding under this section, including the petitioner, may appeal from the judgment of the court to the Supreme Court of Virginia, as otherwise provided by law.
(l) 
It is expressly provided that the petition and proceeding authorized under this section shall be intended only to establish scienter in cases where the establishment of such scienter is thought to be useful or desirable by the petitioner, and the provisions of this section shall in nowise be construed to be a necessary prerequisite to the filing of criminal charges under this article.
Nothing contained in this article shall be construed to apply to:
(a) 
The purchase, distribution, exhibition or loan of any book, magazine or other printed or manuscript material by any library, school or institution of higher learning supported by public appropriation;
(b) 
The purchase, distribution, exhibition or loan of any work of art by any museum of fine arts, school or institution of higher learning supported by public appropriation;
(c) 
The exhibition or performance of any play, drama, tableau or motion picture by any theater, museum of fine arts, school or institution of higher learning supported by public appropriation.
For the purposes of this article, the following words and phrases shall have the meanings ascribed to them in this section:
HARMFUL TO JUVENILES
That quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sadomasochistic abuse, when it:
(a) 
Predominantly appeals to the prurient, shameful or morbid interest of juveniles; and
(b) 
Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for juveniles; and
(c) 
Taken as a whole, lacks serious literary, artistic, political or scientific value for juveniles.
JUVENILE
Any person under the age of 18 years.
KNOWINGLY
Having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both the character and content of any material described herein, which is reasonably susceptible of examination by the defendant, and the age of the juvenile; provided, however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such juvenile.
NUDITY
A state of undress so as to expose 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 or uncovered male genitals in a discernibly turgid state.
SADOMASOCHISTIC ABUSE
Actual or explicitly simulated flagellation or torture by or upon a person who is nude or 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.
SEXUAL CONDUCT
Actual or explicitly simulated acts of masturbation, homosexuality, sexual intercourse or physical contact, in an act of apparent sexual stimulation or gratification, with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breasts.
SEXUAL EXCITEMENT
The condition of human male or female genitals when in a state of sexual stimulation or arousal.
[Ord. No. O97-2, 2-19-1997]
It shall be unlawful for any person to knowingly sell, rent, or loan to a juvenile or to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse:
(a) 
Any picture, photograph, drawing, sculpture, motion picture film or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles, or
(b) 
Any book, pamphlet, magazine, printed matter however reproduced or sound recording which contains any matter enumerated in (a) above, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to juveniles.
It shall be unlawful for any person to knowingly exhibit to a juvenile or to knowingly sell to a juvenile an admission ticket or pass or to knowingly admit a juvenile to premises whereon there is exhibited, a motion picture, show or other presentation which, in whole or in part, depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles.
(a) 
It shall be unlawful for any juvenile to falsely represent to any person mentioned in § 15.5-26 or 15.5-27, or to his agent, that such juvenile is 18 years of age or older, with the intent to procure any material as set forth in § 15.5-26, or with the intent to procure such juvenile's admission to any motion picture, show or other presentation set forth in § 15.5-27.
(b) 
It shall be unlawful for any person to knowingly make a false representation to any person mentioned in § 15.5-26 or 15.5-27, or to his agent, that he is the parent or guardian of any juvenile, or that any juvenile is 18 years of age, with the intent to procure any material set forth in § 15.5-26, or with the intent to procure such juvenile's admission to any motion picture, show or other presentation set forth in § 15.5-27.
Nothing contained in this article shall be construed to apply to:
(a) 
The purchase, distribution, exhibition or loan of any work of art, book, magazine or other printed or manuscript material by any accredited museum, library, school or institution of higher learning.
(b) 
The exhibition or performance of any play, drama, tableau or motion picture by any theater, museum, school or institution of higher learning, either supported by public appropriation or which is an accredited institution supported by private funds.