Kern County Municipal Code Ch. 5.10 Protection and Relief to County Citizens, Especially Women and Minors,…

A. It is found and declared that existing state and federal laws have proven inadequate to solve a grave threat to the health, safety, peace, welfare and equality of Kern County citizens, especially women and minors, because of the widespread proliferation and trafficking in obscenity and sexually explicit material that is otherwise subject to criminal prosecution under the California Penal Code.

B. It is further found and declared that obscenity as defined in Penal Code Section 311, obscene live conduct as defined in Penal Code Section 311(g), and harmful matter for minors as defined in Penal Code Sections 313 and 313.1(c) do inflict physical and mental injury, promote violence and abuse, and foster discriminatory treatment of the citizens of the county, especially women and minors.

C. It is further found that obscenity, sexually explicit material or harmful matter, and obscene live conduct promote and foster acts of aggression, violence, contempt, discrimination and degradation against women and minors; specifically, such matter:

1. Promotes physical, sexual and emotional abuse of minors and women;

2. Fosters public and private harassment, persecution, discrimination and degradation; promotes injury and abuse, such as rape, battery, sexual abuse of children, prostitution, and inhibits just enforcement of laws against these acts;

3. Exposes individuals who appear in obscenity and sexually explicit material against their will to contempt, ridicule, hatred, humiliation, and embarrassment and targets them for abuse and physical aggression;

4. Diminishes opportunities for equality of rights in employment, education, property, public accommodations and public services; and

5. Lowers the human dignity, worth, and civil status of women and damages mutual respect between the sexes.

(Ord. G-6290 § 2 (part), 1996)

As used in this chapter, the following definitions shall control the meaning of the respective terms:

A. "Obscene matter," "matter," "person," "distribute," "exhibit" and "obscene live conduct" shall have the meaning provided in Penal Code Section 311 and subsections thereof.

B. "Harmful matter," "matter," "person," "distribute," "exhibit" and "minor" shall have the meaning provided in Penal Code Section 313 and subsections thereof, and Section 313.1 and subsections thereof.

C. "Prurient interest" shall be used as defined by Penal Code Sections 311 and 313 and the U.S. Supreme Court. It shall be for the jury to decide whether the creator, publisher, exhibitor or distributor of the material at issue intended the material to appeal to the prurient interests of the audience. The court may find intent to appeal to prurient interest upon examination of the material, without more. Once the plaintiff(s) has made out a prima facie case of intent to appeal to prurient interest, the defendant(s) may disprove such intent with a contrary showing by a preponderance of the evidence. The jury shall also consider whether the material, taken as a whole, appeals to the prurient interest of the general public or the target audience. It shall not be a defense that the material's prurient appeal or circulation is broader than originally intended.

D. "Patently offensive" shall be used as defined by the U.S. Supreme Court and the jury shall be instructed that depictions of the following forms of conduct are patently offensive for adults under this chapter, though a jury may find that other depictions are also patently offensive:

1. Rape, wherein the person being raped is portrayed as enjoying, inviting or deserving the assault;

2. Persons bound, chained, or otherwise forcibly restrained in a position and/or setting that makes such restraint sexual;

3. Persons beaten, bruised, cut, mutilated, dismembered, otherwise physically hurt, or murdered in a context intended to appeal to the prurient interest of the viewer or reader;

4. Persons urinated, defecated or masturbated on;

5. Persons penetrated in any body orifice by objects or animal in a manner intended to appeal to the prurient interest of the viewer or reader;

6. Persons portrayed as enjoying pain or humiliation in a sexual context or where the pain or humiliation is intended to appeal to the prurient interest of the viewer or reader;

7. Persons portrayed as enjoying, inviting or deserving sexual harassment or other sexual misconduct punishable by statute or under the common law, where such portrayal is intended to appeal to the prurient interest of the viewer or reader.

These provisions shall apply whether women, men, children, minors, and/or animals are the subject of the material.

E. "Patently offensive" to and for minors shall be defined as provided by Penal Code Section 313.1(c) and the U.S. Supreme Court. The jury shall be instructed under this chapter that depictions of the following forms of conduct are patently offensive to and for minors under this chapter, though a jury may find that other depictions are also patently offensive to minors:

1. Sodomy;

2. Oral copulation;

3. Sexual intercourse;

4. Masturbation;

5. Bestiality; or

6. A photograph of an exposed penis in an erect and turgid state.

F. It shall be a defense to the cause of action created by this chapter that the work at issue, taken as a whole, has serious literary, artistic, political or scientific value.

(Ord. G-6290 § 2 (part), 1996)

A right of civil action shall be available to the adults and minors of Kern County as follows:

A. Any person, author, producer, camera operator, publisher, distributor, exhibitor, vendor, or other person involved in the manufacturing, distribution, presentation or exhibition of obscene live conduct or obscene matter or harmful matter may be sued for damages under this chapter. Where the material proximately and foreseeably causes physical, mental or emotional harm to an identified person, that person or his/her estate shall have a cause of action under this chapter. It shall be for the jury to decide whether it was foreseeable that the particular harm complained of would result from the portrayal and was in fact caused by such portrayal.

B. Any woman injured by a portrayal of women in her profession or job as primarily sex objects, where such portrayal impairs her ability to perform her work, or foreseeably causes others to impair her ability to perform her work, shall have a right to seek damages under this chapter.

C. Any person who has material that is prohibited under this chapter forced upon him/her in his/her workplace, place of education or public place may seek damages under this chapter. Only the perpetrator of such force or the affiliated institution may be held liable. "Force" shall be defined as the uninvited presentation of obscenity or harmful matter in such a way that the person cannot reasonably avoid or ignore it. It shall be a defense to this subsection that the obscene materials or harmful matter were used for legitimate educational purposes where alternative materials would not have served the same purpose.

D. Any woman who has been coerced, intimidated or fraudulently induced into posing or performing for material prohibited by this chapter, may seek damages and/or injunctive relief under this chapter. Proof of one (1) or more of the following shall not, without more, constitute a defense to this subsection or negate a finding of coercion:

1. That the person is or has been a prostitute;

2. That the person has attained the age of majority;

3. That the person has been photographed or otherwise depicted in obscene matter or sexually explicit matter in the past;

4. That the person is related by blood or marriage to any person affiliated in any way with the production, distribution, exhibition or sales of obscene matter or matter harmful to minors.

(Ord. G-6290 § 2 (part), 1996)

Any person who has a cause of action under this chapter, or their estate, may complain directly to a court of competent jurisdiction for relief. Any such person may seek nominal or compensatory damages, including but not limited to medical bills and lost wages, and general damages, including but not limited to pain, suffering, reduced enjoyment or quality of life, as well as reasonable costs, including attorney's fees and costs of investigation. Also, treble or exemplary damages may be sought and awarded under this chapter.

(Ord. G-6290 § 2 (part), 1996)

A class action may be brought under this chapter when authorized under federal or state laws and procedures.

(Ord. G-6290 § 2 (part), 1996)

A. Relief under this chapter is not exclusive and shall not preclude, or be precluded by, the seeking of any other relief, whether civil or criminal.

B. The provisions of the chapter shall be interpreted consistent with current federal and state law and procedures and as amended from time to time.

(Ord. G-6290 § 2 (part), 1996)

Complaints pursuant to this chapter shall be brought within one (1) year of accrual of the cause of action or from when the complainant reaches the age of majority, whichever is later.

(Ord. G-6290 § 2 (part), 1996)