Obscenity Law
RICO-Obscenity Law
Harmful to Minors Law
Public Display of Offensive Material Law
Public Indecency Law
Alcohol Beverage Control Law (dealing with obscenity/nudity/pornography)
Sexually Oriented Business LawNB: The following is not a state-wide obscenity statute, but rather an authorizing statute allowing local governments to enact their own obscenity statutes.
TITLE 9. MUNICIPAL GOVERNMENT
CHAPTER 9-29. GENERAL POLICE POWERS
S.D. Codified Laws § 9-29-9
§ 9-29-9. Prohibit obscene or immoral materials
Every municipality shall have power to prohibit the sale or exhibition of any obscene or immoral publication, print, film, picture, or illustration.
NB: An enforcement measure
TITLE 21. JUDICIAL REMEDIES
CHAPTER 21-8. INJUNCTIVE RELIEF
S.D. Codified Laws § 21-8-16
§ 21-8-16. Enforcement of obscenity and public decency laws
The circuit courts of this state and the judges thereof, may, upon application of the attorney general, or any state's attorney or city attorney within his respective jurisdiction, issue any and all proper restraining orders, temporary and permanent injunctions, and any other writs and processes appropriate to carry out and enforce the obscenity and public decency laws of this state. Such restraining orders or injunctions may be issued to prevent any person from violating the obscenity and public decency laws of this state.
§ 21-8-17. Notice required in obscenity cases -- Right to trial -- Timing and contents of order
Notwithstanding § 21-8-16, no restraining order or injunction shall be issued without notice to the person sought to be enjoined. Such person shall be entitled to a trial of the issues within one day after the filing of his answer to the complaint, and a decision shall be rendered by the court within two days of the conclusion of the trial. If a final order or judgment of injunction is entered against the person sought to be enjoined, it shall contain a provision directing the person to surrender any obscene matter in his possession which is subject to the injunction, to the sheriff of the county in which the action was brought, and the sheriff shall be directed to seize and destroy such matter.
NB: More authorizing statutes
TITLE 22. CRIMES
CHAPTER 22-24. OBSCENITY AND PUBLIC INDECENCY
S.D. Codified Laws § 22-24-25
§ 22-24-25. Regulation of obscenity by county or municipality -- Limitations
Except as provided in § 22-24-37, nothing contained in this chapter limits any county or municipality from regulating obscene material or obscene live conduct within its jurisdiction.
§ 22-24-25.1. Regulation of obscenity by county or municipality -- Contemporary community standards test -- Approval by voters
Any county or municipality may provide, by ordinance, for a contemporary community standards test to regulate the sale, distribution, and use of obscene material and to regulate obscene live conduct in any commercial establishment or public place within its jurisdiction.§ 22-24-27. Regulation of obscenity by county or municipality -- Dissemination of materials to minors -- Definitions
Terms used in §§ 22-24-25 to 22-24-37, inclusive, mean:
(1) "Contemporary community standard," the contemporary community standard of the state in which the question of obscenity is to be tested, by the average person, of the state;
(2) "Distributed," to transfer possession of, whether with or without consideration;
(3) "Exhibit," to show or display;
(4) "Harmful to minors," includes in its meaning the quality of any material or of any performance or of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, if 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 as a whole with respect to what is suitable material for minors; and
(c) Is without serious literary, artistic, political, or scientific value;
(5) "Magistrate," any circuit court or magistrate judge;
(6) "Material," anything tangible which is harmful to minors, whether derived through the medium of reading, observation, or sound;
(7) "Matter" or "material," 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 recording, transcription or mechanical, chemical, or electrical reproduction; or any other articles, equipment, machines, or materials;
(8) "Minor," any person less than eighteen years of age;
(9) "Nudity," within the meaning of subdivision (4) of this section, 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 full opaque covering or any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state;
(10) "Obscene live conduct," any physical human body activity, whether performed or engaged in alone or with other persons, including singing, speaking, dancing, acting, simulation, or pantomiming, where:
(a) The dominant theme of such conduct, taken as a whole, appeals to a prurient interest;
(b) The conduct is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
(c) The conduct is without serious literary, artistic, political, or scientific value. In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of production, presentation, advertising, or exhibition indicate that live conduct is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the conduct;
(11) "Obscene material," material:
(a) The dominant theme of which, taken as a whole, appeals to the prurient interest;
(b) Which is patently offensive because it affronts contemporary community standards relating to the description or representation of sado-masochistic abuse or sexual conduct; and
(c) Lacks serious literary, artistic, political, or scientific value. In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of production, presentation, sale, dissemination, or publicity indicate that the matter is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the matter;
(12) "Prurient interest," a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is designed for a specially susceptible audience or clearly defined deviant sexual group, the appeal of the subject matter shall be judged with reference to such audience or group;
(13) "Sado-masochistic abuse," 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 who is nude or so clothed;
(14) "Sexual conduct," within the meaning of subdivision (4) of this section, any act 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, the breast;
(15) "Sexual excitement," the condition of human male or female genitals when in a state of sexual stimulation or arousal.
RICO-Obscenity Law
None.
TITLE 22. CRIMES
CHAPTER 22-22. SEX OFFENSES
S.D. Codified Laws § 22-22-24.3
§ 22-22-24.3. Sexual exploitation of minor -- Consent or mistake not a defense -- Penalty
A person is guilty of sexual exploitation of a minor if the person causes or knowingly permits a minor to engage in an activity or the simulation of an activity that:
(1) Is harmful to minors;
(2) Involves nudity; or
(3) Is obscene.
Consent to performing these proscribed acts by a minor or a minor's parent, guardian, or custodian, or mistake as to the minor's age is not a defense to a charge of violating this section.
A violation of this section is a Class 6 felony. If a person is convicted of a second or subsequent violation of this section within fifteen years of the prior conviction, the violation a Class 5 felony.
The court shall order an assessment pursuant to § 22-22-1.3 of any person convicted of violating this section.
§ 22-24-28. Dissemination of material harmful to minors -- Penalty
Any person who disseminates material harmful to minors is guilty of a Class 1 misdemeanor.
§ 22-24-29. Dissemination of material harmful to minors -- Giving or selling material
A person is guilty of disseminating material harmful to minors if that person knowingly gives or makes available to a minor or promotes or possesses with intent to promote to minors, or if that person knowingly sells or loans to a minor for monetary consideration any material described in subdivision § 22-24-27 (4).
§ 22-24-30. Dissemination of material harmful to minors -- Exhibiting or admitting to motion picture
A person is guilty of disseminating material harmful to minors if, with reference to a motion picture, show, or other presentation which depicts nudity, sexual conduct, or sado-masochistic abuse, and which is harmful to minors, that person knowingly:
(1) Exhibits such motion picture, show, or other presentation to a minor;
(2) Sells or gives to a minor an admission ticket or pass to premises whereon there is exhibited such motion picture, show, or other presentation; or
(3) Admits a minor for a monetary consideration to premises whereon there is exhibited or to be exhibited such motion picture, show, or other presentation.
§ 22-24-31. Dissemination of materials harmful to minors -- Affirmative defense
In any prosecution for disseminating material harmful to minors, it is an affirmative defense that:
(1) The defendant had reasonable cause to believe that the minor involved was eighteen years old or more. A draft card, driver's license, birth certificate, or other official or apparently official document is evidence establishing that the minor was eighteen years of age or older;
(2) The minor involved was accompanied by a parent or guardian, or by an adult and the adult represented that he or she was the minor's parent or guardian or an adult and the adult signed a written statement to that effect;
(3) The defendant was the parent or guardian of the minor involved; or
(4) The defendant was a bona fide school, college, university, museum, or public library, or was acting in the capacity of an employee of such an organization or a retail outlet affiliated with and serving the educational purposes of such an organization.
§ 22-24-32. Misrepresentation of person as parent to gain minor admission to motion picture
A person is guilty of a Class 1 misdemeanor if that person knowingly misrepresents that he or she is a parent or guardian of a minor for the purpose of obtaining admission of any minor to any motion picture, show, or other presentation which is harmful to minors.
§ 22-24-33. Misrepresentation of age by minor to gain admission to motion picture
A minor is guilty of a Class 2 misdemeanor if that minor misrepresents his or her age for the purpose of obtaining admission to any motion picture, show, or other presentation which is harmful to minors.
§ 22-24-34. Dissemination of material harmful to minors -- Each sale as separate offense
If more than one article or item of material prohibited under §§ 22-24-27 to 22-24-37, inclusive, is sold, given, advertised for sale, distributed commercially, or promoted, by the same person, after a hearing and determination that probable cause exists to believe such article or material is harmful to minors, each such sale, gift, advertisement, distribution, or promotion constitutes a separate offense.
§ 22-24-37. Dissemination of material harmful to minors -- Inapplicable to law enforcement activities, educational activities, and activities in the course of employment
The provisions of §§ 22-24-27 to 22-24-37, inclusive, do not apply to any persons who may possess or distribute obscene matter or participate in conduct, otherwise proscribed by those sections, if such possession, distribution, or conduct occurs:
(1) In the course of law enforcement and judicial activities;
(2) In the course of bona fide school, college, university, museum, or public library activities or in the course of employment of such an organization or retail outlet affiliated with and serving the educational purposes of such an organization; or
(3) In the course of employment as a moving picture machine operator, or assistant operator, in a motion picture theater in connection with a motion picture film or show exhibited in such theater if such operator or assistant operator has no financial interest in the motion picture theater wherein that operator or assistant operator is so employed other than wages received or owed; or like circumstances of justification if the possession, distribution, or conduct is not limited to the subject matter's appeal to prurient interests.
§ 22-24-55. Restriction on computer access to obscene material by public school
Any public school that provides a public access computer shall do one or both of the following:
(1) Equip the computer with software that will limit minors' ability to gain access to obscene materials or purchase internet connectivity from an internet service provider that provides filter services to limit access to obscene materials; or
(2) Develop and implement, by January 1, 2001, a local policy that establishes measures to restrict minors from computer access to obscene materials.
§ 22-24-56. Establishment of policy to restrict computer access to obscene material by public libraries
Any public library that provides a public access computer shall develop and implement, by January 1, 2001, a local policy that establishes measures to restrict minors from computer access to obscene materials.
§ 22-24-57. School or library not liable for damages for minor access to obscene materials through public access computer
No public school that complies with § 22-24-55 or any public library that complies with § 22-24-56 may be held liable for any damages that may arise from a minor gaining access to obscene materials through the use of a public access computer that is owned or controlled by the public school or public library.
§ 22-24-57. School or library not liable for damages for minor access to obscene materials through public access computer
No public school that complies with § 22-24-55 or any public library that complies with § 22-24-56 may be held liable for any damages that may arise from a minor gaining access to obscene materials through the use of a public access computer that is owned or controlled by the public school or public library.
§ 22-24-59. "Public access computer" defined
For the purposes of §§ 22-24-55 to 22-24-59, inclusive, a public access computer is any computer that is located in a public school or public library.
§ 22-24-60. "Prepaid adult entertainment card" defined
For the purposes of §§ 22-24-60 to 22-24-68, inclusive, a prepaid adult entertainment card is a product, either sold at wholesale, retail, or distributed gratis as a promotion, which permits the cardholder to access one or more erotic or pornographic internet sites by means of a predetermined user identification and password unique to each card.
§ 22-24-61. Sale or distribution of prepaid adult entertainment card to minor -- Penalty
It is a Class 1 misdemeanor to sell, give, or distribute any prepaid adult entertainment card or any prepaid adult entertainment telephone card to any person under eighteen years of age.
§ 22-24-64. Sale or distribution of prepaid adult entertainment card to minor -- Persons who can bring action for damages
Any of the following persons may bring an action for damages caused by another person's conduct as proscribed by §§ 22-24-60 to 22-24-68, inclusive:
(1) The victimized minor;
(2) Any parent, legal guardian, or sibling of a victimized minor; or
(3) Any person injured as a result of the willful, reckless, or negligent actions of a person who knowingly participated in conduct proscribed by §§ 22-24-60 to 22-24-68, inclusive.
If the parent or guardian is named as a defendant in the action, the court shall appoint a special guardian to bring the action on behalf of the minor.
§ 22-24-65. Sale or distribution of prepaid adult entertainment card to minor -- Persons liable
Any person entitled to bring an action under § 22-24-64 may seek damages from any person who knowingly participated in the sale or in the chain of distribution of any prepaid adult entertainment card or any prepaid adult entertainment telephone card proscribed by §§ 22-24-60 to 22-24-68, inclusive.
§ 22-24-66. Sale or distribution of prepaid adult entertainment card to minor -- Damages recoverable
Any person entitled to bring an action under § 22-24-64 may recover the following damages:
(1) Economic damages, including the cost of treatment and rehabilitation, medical expenses, loss of economic or educational potential, loss of productivity, absenteeism, support expenses, accidents or injury, and any other pecuniary loss proximately caused by the proscribed conduct;
(2) Noneconomic damages, including physical and emotional pain, suffering, physical impairment, emotional distress, mental anguish, disfigurement, loss of enjoyment, loss of companionship, services, and consortium, and other nonpecuniary losses proximately caused by the proscribed conduct;
(3) Exemplary damages;
(4) Attorneys' fees; and
(5) Disbursements.
§ 22-24-67. Sale or distribution of prepaid adult entertainment card to minor -- Statute of limitations -- Tolling by minority
Any action for damages under §§ 22-24-60 to 22-24-68, inclusive, shall be commenced within six years of the time the plaintiff knew, or had reason to know, of any injury caused by violations of §§ 22-24-60 to 22-24-68, inclusive. The knowledge of a parent, guardian, or custodian may not be imputed to the minor.
For a plaintiff, the statute of limitations under this section is tolled while any potential plaintiff is incapacitated by minority.
§ 22-24-68. Sale or distribution of prepaid adult entertainment card to minor -- Seizure and destruction of cards
As a public nuisance, all prepaid adult entertainment cards and prepaid adult entertainment telephone cards are subject to seizure and destruction without compensation by any law enforcement agency with appropriate jurisdiction.
Public Display of Offensive Material Law
TITLE 22. CRIMES
CHAPTER 22-24. OBSCENITY AND PUBLIC INDECENCY
S.D. Codified Laws § 22-24-29.1 (2009)
§ 22-24-29.1. Display or sale of magazines or books with obscene material on cover -- Penalty
No person may knowingly distribute, display, sell, or exhibit for sale in any public place any magazine, book, or newsprint displaying or containing obscene material on its cover or material unless the magazine, book, or newsprint is wrapped and sealed so that no more than its title, name, price, or date is exposed to the public and the magazine, book, or newsprint cannot be viewed or examined without breaking the seal, wrapping, or covering. Any person who violates this section is guilty of a Class 1 misdemeanor.
TITLE 22. CRIMES
CHAPTER 22-24. OBSCENITY AND PUBLIC INDECENCY
S.D. Codified Laws § 22-24-1.1
§ 22-24-1.1. "Public indecency" defined -- Penalty
A person commits the crime of public indecency if the person, under circumstances in which that person knows that his or her conduct is likely to annoy, offend, or alarm some other person, exposes his or her anus or genitals in a public place where another may be present who will be annoyed, offended, or alarmed by the person's act. A violation of this section is a Class 2 misdemeanor.
§ 22-24-1.2. Indecent exposure -- Penalty
A person commits the crime of indecent exposure if, with the intent to arouse or gratify the sexual desire of any person, the person exposes his or her genitals in a public place under circumstances in which that person knows that person's conduct is likely to annoy, offend, or alarm another person. A violation of this section is a Class 1 misdemeanor. However, if such person has been previously convicted of a felony violation of § 22-22-1, 22-22-7, 22-22-19.1, or 22-22-24.2, that person is guilty of a Class 6 felony. Any person convicted of a third or subsequent violation of this section is guilty of a Class 6 felony.
§ 22-24-1.3. Aggravated indecent exposure -- Penalty
If any person, eighteen years of age or older, with the intent to arouse or gratify the sexual desire of any person, exposes his or her genitals under circumstances in which that person knows that his or her conduct is likely to annoy, offend, or alarm some child, thirteen years of age or younger, that person is guilty of the crime of indecent exposure involving a child. Indecent exposure involving a child is a Class 6 felony. A second or subsequent conviction for indecent exposure involving a child is a Class 5 felony.Alcohol Beverage Control Law (dealing with obscenity/nudity/pornography)
None.
Sexually Oriented Business Law
None.