T.P.I. -- CRIM. 34.06

SALE/LOAN/EXHIBITION OF MATERIAL HARMFUL TO MINORS

Any person who commits the offense of sale, loan or exhibition of certain materials harmful to minors is guilty of a crime.

For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:¹

[Part A:

(1)  that the defendant [sold or loaned for monetary consideration]

       [exhibited] [made available] to a minor any [picture] [photograph]

       [drawing] [sculpture] [motion picture film] [video game] [computer                 software game] [visual representation]  [image] of a [person] [portion            of the human body];

and

(2)  that such material depicted [nudity] [sexual conduct] [sadomasochistic

      abuse] which was harmful to minors;

and

(3)  that the defendant acted knowingly.]

or

[Part B:

(1)  that the defendant [sold or loaned for monetary consideration]

       [exhibited] [made available] to a minor any [book] [pamphlet]

       [magazine] [printed matter] [sound recording], however reproduced;

and

(2)(a)  that such material depicted [nudity] [sexual conduct]

           [sado-masochistic abuse], which was harmful to minors;

or

     (b)  that such material contained explicit, detailed verbal descriptions or

            narrative accounts of [sexual excitement] [sexual conduct]

            [sado-masochistic abuse], which was harmful to minors;

and

(3)  that the defendant acted knowingly.]

or

[Part C:

(1)  that the defendant [exhibited to a minor for monetary consideration]

       [sold to a minor an admission ticket or pass to premises whereon

       there was exhibited] [admitted a minor to premises whereon there

       was exhibited] a [motion picture] [show] [presentation];

and

(2)  that such [motion picture] [show] [presentation], in whole or in part,

       depicted [nudity] [sexual conduct] [sadomasochistic abuse], which

       was harmful to minors;

and

(3)  that the defendant acted knowingly.]

"Minor" means any person who has not reached eighteen (18) years of age and is not emancipated.²

["Emancipated minor" means any minor who is or has been married, or has by court order or otherwise been freed from the care, custody and control of his or her parents.]³

"Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, or sadomasochistic abuse when the matter or performance:

(a)  would be found by the average person applying contemporary

       community standards to appeal predominantly to the prurient,

       shameful or morbid interests of minors; and

(b)  is patently offensive to prevailing standards in the adult community as

      a whole with respect to what is suitable for minors;

 and

(c)  taken as a whole lacks serious literary, artistic, political or scientific

      values for minors.⁴

["Nudity" means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering or any portion thereof below the top of the nipple, or of the depiction of covered male genitals in a discernibly turgid state.]⁵

["Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.]⁶

["Sexual conduct" means:

(a)  patently offensive representations or descriptions of ultimate sexual

       acts, normal or perverted, actual or simulated.  A sexual act is

       simulated when it depicts explicit sexual activity which gives

       the appearance of ultimate sexual acts, anal, oral or genital.

       "Ultimate sex acts" means sexual intercourse, anal or otherwise,

       fellatio, cunnilingus or sodomy;

 or

(b)  patently offensive representations or descriptions of masturbation,

       excretory functions, and lewd exhibition of the genitals.]⁷

["Sadomasochistic abuse" means flagellation or torture or physical restraint by or upon a person for the purpose of sexual gratification of either person.]⁸

["Prurient interest" means a shameful or morbid interest in sex.]⁹

["Patently offensive" means that which goes substantially beyond customary limits of candor in describing or representing such matters.]¹⁰

["Cunnilingus" means a sex act accomplished by placing the mouth or tongue on or in the vagina of another.]¹¹

["Fellatio" means a sex act accomplished with the male sex organ and the mouth of another.]¹²

["Sodomy" means a sex act accomplished by anal intercourse or a sex act between a person and an animal.]¹³

"Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.¹⁴

The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.¹⁵

"Intentionally" means a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.¹⁶

[It is a defense to prosecution for this offense that the minor to whom the material or show was made available or exhibited was, at the time, accompanied by [his] [her] parent or legal guardian, or by an adult with the written permission of the parent or legal guardian.¹⁷  If the defendant proves this defense by a preponderance of the evidence,¹⁸ you must find [him] [her] not guilty.]

FOOTNOTES

  1.  Tenn. Code Ann. ' 39-17-911(a) and (b).

  2.  Tenn. Code Ann. ' 39-17-901(8).

  3.  Tenn. Code Ann. ' 39-11-106(a)(10).

  4.  Tenn. Code Ann. ' 39-17-901(6).

  5.  Tenn. Code Ann. ' 39-17-901(9).

  6.  Tenn. Code Ann. ' 39-17-901(15).

  7.  Tenn. Code Ann. ' 39-17-901(14).

  8.  Tenn. Code Ann. ' 39-17-901(13).

  9.  Tenn. Code Ann. ' 39-17-901(12).

10.  Tenn. Code Ann. ' 39-17-901(11).

11.  This definition is derived from former T.P.I. -- CRIM.  9.04, Crimes Against

  Nature.

12.  Id.

13.  This definition is derived from Black's Law Dictionary (5th Ed. 1979).

14.  Tenn. Code Ann. ' 39-11-106(a)(20).

15.  Tenn. Code Ann. ' 39-11-301(a)(2).

16.  Tenn. Code Ann. ' 39-11-106(a)(18).

17.  Tenn. Code Ann. ' 39-17-911(d). 

18.  Tenn. Code Ann. ' 39-11-204(e).  The trial judge should utilize T.P.I. -- CRIM. 42.01 (Preponderance of the evidence).

COMMENTS

1.  Sale, loan or exhibition of material harmful to minors is a Class A misdemeanor.  Tenn. Code Ann. ' 39-17-911(c).

      2.  The issue of the existence of an affirmative defense may not be submitted to the jury unless it is fairly raised by the proof and notice has been provided.  Tenn. Code Ann. ' 39-11-204(d).  Tenn. Code Ann. ' 39-11-204(c)(1) provides that written notice of an affirmative defense shall be made to the district attorney no later than ten (10) days before trial.