22-24-27. Definition of terms. 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.Source: SL 1968, ch 29, § 1; SDCL Supp, § 22-24-11; SL 1974, ch 165, § 1; SL 1976, ch 158, §§ 24-3 to 24-5; SL 1994, ch 167, § 3; SL 2005, ch 120, § 303.