# Title 12.1 — Criminal Code

## Chapter 12.1-27.1 — Obscenity Control

### § 12.1-27.1-01. Obscenity - Definitions - Dissemination - Classification of offenses.

1. A person is guilty of a class C felony if, knowing of its character, the person
disseminates obscene material or if the person produces, transports, or sends
obscene material with intent that it be disseminated.
2. A person is guilty of a class C felony if the person presents or directs an obscene
performance for pecuniary gain or participates in any portion of a performance which
contributes to the obscenity of the performance as a whole.
3. A person is guilty of a class C felony if the person, as owner or manager of an
establishment licensed under section 5-02-01, permits an obscene performance in the
establishment. A person is guilty of a class C felony if that person participates, whether
or not for compensation, in an obscene performance in an establishment licensed
under section 5-02-01.
4. a. In addition to the penalty provided in subsection 1, 2, or 3, any person who
violates subsection 1, 2, or 3 in the course of a commercial or for-profit activity or
transaction in which the offender had or shared ownership, control, managerial
responsibility, or a financial interest other than wages is subject to the following
penalty:
(1) For an individual, a fine not to exceed ten thousand dollars; or
(2) For a corporation, limited liability company, association, partnership, or other
legal entity, a fine not to exceed twenty-five thousand dollars.
b. In addition to the penalty provided in subsection 1, 2, or 3, the court shall impose
the following penalty upon the conviction of a person or entity described in
subdivision a for a second or subsequent offense under subsection 1, 2, or 3:
(1) For an individual, a fine not to exceed fifty thousand dollars; or
(2) For a corporation, limited liability company, association, partnership, or other
legal entity, a fine not to exceed one hundred thousand dollars.
5. As used in this chapter, the terms "obscene material" and "obscene performance"
mean material or a performance which:
a. Taken as a whole, the average person, applying contemporary North Dakota
standards, would find predominantly appeals to a prurient interest;
b. Depicts or describes in a patently offensive manner sexual conduct, whether
normal or perverted; and
c. Taken as a whole, the reasonable person would find lacking in serious literary,
artistic, political, or scientific value.
Whether material or a performance is obscene must be judged with reference to
ordinary adults, unless it appears from the character of the material or the
circumstances of its dissemination that the material or performance is designed for
minors or other specially susceptible audience, in which case the material or
performance must be judged with reference to that type of audience.
6. As used in this chapter, "disseminate" means to sell, lease, rent, advertise, broadcast,
transmit, exhibit, or distribute for pecuniary gain. "Disseminate" includes any
transmission of visual material shown on a cable television system, whether or not
accompanied by a soundtrack, and any sound recording played on a cable television
system.
7. As used in this chapter, the term "material" means any physical object, including, but
not limited to, any type of book, sound recording, film, or picture used as a means of
presenting or communicating information, knowledge, sensation, image, or emotion to
or through a human being's receptive senses.
8. As used in this chapter, the term "patently offensive" means so offensive on its face as
to affront the contemporary North Dakota standards of decency.
9. As used in this chapter, the term "performance" means any play, dance, or other
exhibition presented before an audience.

10. As used in this chapter, the term "prurient interest" means a voyeuristic, lascivious,
degrading, shameful, or morbid interest in nudity, sex, or excretion that goes
substantially beyond customary limits of candor in description or representation of
those matters.
11. As used in this chapter, the term "sexual conduct" means actual or simulated:
a. Sexual intercourse;
b. Sodomy;
c. Sexual bestiality;
d. Masturbation;
e. Sadomasochistic abuse;
f. Excretion; or
g. Lewd exhibition of the male or female genitals.
As used in this subsection, the term "sodomy" means contact between the penis and
the anus, the mouth and the penis, the mouth and the vulva, or the mouth and the
anus. As used in this subsection, the term "sadomasochistic abuse" means a depiction
or description of flagellation or torture by or upon a person who is nude or clad in
undergarments or in a bizarre or revealing costume; or the condition of being fettered,
bound, or otherwise physically restrained on the part of one so clothed.
12. As used in this chapter, the term "book" means any book, magazine, pamphlet,
newspaper, or other article made out of paper and containing printed, typewritten, or
handwritten words.
13. As used in this chapter, "sexually expressive image" means a real, altered, or
computer-generated photograph or visual representation that exhibits a nude or
partially denuded human figure, as defined in section 12.1-27.1-03.1, or sexual
conduct.
### § 12.1-27.1-02. Promoting obscenity to minors - Definitions.

As used in this section and in section 12.1-27.1-03:
1. "Promote" means to produce, direct, manufacture, issue, sell, lend, mail, publish,
distribute, exhibit, or advertise.
2. "Harmful to minors" means that quality of any description or representation, in
whatever form of sexual conduct or sexual excitement, when such description or
representation:
a. Considered as a whole, appeals to the prurient sexual interest of minors;
b. Is patently offensive to prevailing standards in the adult community in North
Dakota as a whole with respect to what is suitable material for minors; and
c. Considered as a whole, lacks serious literary, artistic, political, or scientific value
for minors.
3. "Sexual excitement" means the condition of human male or female genitals when in a
state of sexual stimulation or arousal.
### § 12.1-27.1-03. Promoting obscenity to minors - Minor performing in obscene

performance - Classification of offenses.
1. It is a class C felony for a person, knowing of its character, to recklessly promote to a
minor any material or performance which is harmful to minors, or to admit a minor to
premises where a performance harmful to minors is exhibited or takes place.
2. It is a class C felony to permit a minor to participate in a performance which is harmful
to minors.
### § 12.1-27.1-03.1. Objectionable materials or performance - Display to minors -

Definitions - Penalty.
1. A person is guilty of a class B misdemeanor if he willfully displays at newsstands or
any other business establishment frequented by minors, or where minors are or may
be invited as a part of the general public, any photograph, book, paperback book,
pamphlet, or magazine, the exposed cover or available content of which exploits, is

devoted to, or is principally made up of depictions of nude or partially denuded human
figures posed or presented in a manner to exploit sex, lust, or perversion for
commercial gain.
2. As used in this section:
a. "Nude or partially denuded human figures" means less than completely and
opaquely covered human genitals, pubic regions, female breasts or a female
breast, if the breast or breasts are exposed below a point immediately above the
top of the areola, or human buttocks; and includes human male genitals in a
discernibly turgid state even if completely and opaquely covered.
b. "Where minors are or may be invited as a part of the general public" includes any
public roadway or public walkway.
c. The above shall not be construed to include a bona fide school, college,
university, museum, public library, or art gallery.
### § 12.1-27.1-03.2. Exhibition of X-rated motion picture in unscreened outdoor theater -

Penalty.
Any person who, knowing of its character, exhibits any motion picture rated X by the motion
picture association of America in any outdoor theater where the screen is visible beyond the
limits of the theater audience area, so that the motion picture may be seen and its content or
character distinguished by normal unaided vision by a minor viewing it from beyond the limits of
the theater audience area, is guilty of a class B misdemeanor.
### § 12.1-27.1-03.3. Creation, possession, or dissemination of sexually expressive images

prohibited - Exception - Civil action.
1. A person is guilty of a class A misdemeanor if, knowing of its character and content,
that person:
a. Without written consent from each individual who has a reasonable expectation of
privacy in the image, surreptitiously creates or willfully possesses a sexually
expressive image that was surreptitiously created; or
b. Distributes or publishes, electronically or otherwise, a sexually expressive image
with the intent to cause emotional harm or humiliation to any individual depicted
in the sexually expressive image who has a reasonable expectation of privacy in
the image, or after being given notice by an individual or parent or guardian of the
individual who is depicted in a sexually expressive image that the individual,
parent, or guardian does not consent to the distribution or publication of the
sexually expressive image.
2. A person is guilty of a class B misdemeanor if, knowing of its character and content,
that person acquires and knowingly distributes any sexually expressive image that was
created without the consent of the subject of the image.
3. This section does not authorize any act prohibited by any other law. If the sexually
expressive image is of a minor and possession does not violate section
12.1-27.2-04.1, a parent or guardian of the minor may give permission for a person to
possess or distribute the sexually expressive image.
4. This section does not apply to any book, photograph, video recording, motion picture
film, or other visual representation sold in the normal course of business through
wholesale or retail outlets that possess a valid sales tax permit or used by an attorney,
attorney's agent, or any other person obtaining evidence for a criminal investigation or
pending civil action, or by a medical professional or a peace officer acting within that
individual's scope of employment.
5. Nothing in this section may be construed to impose liability on a provider of an
interactive computer service, as defined under 47 U.S.C. 230, or an information
service or telecommunication service, as defined under 47 U.S.C. 153, for content
provided by another person.
6. A depicted individual who is identifiable and who suffers harm from a person's violation
of this section has a cause of action against the person if the person produced,
possessed, distributed, promoted, advertised, sold, exhibited, broadcasted, or

transmitted the sexually expressive image for the purpose of sexual arousal, sexual
gratification, humiliation, degradation, or monetary or commercial gain.
a. The court may order the filing party to redact from all pleadings and documents
filed in the action other identifying characteristics of the plaintiff.
b. A party to whom subdivision a applies shall file with the court and serve on all
other parties a redacted and unredacted version of the filing and a confidential
information form that includes the redacted plaintiff's name and other identifying
characteristics.
c. The court may make further orders as necessary to protect the identity and
privacy of a plaintiff.
7. In an action under subsection 6, a prevailing plaintiff may recover:
a. The greater of:
(1) Economic and noneconomic damages proximately caused by the
defendant's violation of this section, including damages for emotional
distress whether or not accompanied by other damages; or
(2) Statutory damages not to exceed ten thousand dollars against each
defendant found liable under this section;
b. An amount equal to any monetary gain made by the defendant from the
distribution, promotion, advertising, sale, exhibition, broadcasting, or transmission
of the sexually expressive image; and
c. Exemplary damages.
8. In an action under subsection 6, the court may award a prevailing plaintiff:
a. Reasonable attorney fees and costs; and
b. Other remedies available by law, including injunctive relief.
9. This chapter does not affect or preclude any other right or remedy available under
federal law or a law of this state other than this section.
### § 12.1-27.1-03.4. Restrictions on adult-oriented performances - Penalty.

1. As used in this section:
a. "Adult-oriented performance" means a performance that, regardless of whether or
not performed for consideration, is intended to appeal to a prurient interest and
features:
(1) The purposeful exposure, whether complete or partial, of:
(a) A human genital, the pubic region, the human buttocks, or a female
breast, if the breast is exposed below a point immediately above the
top of the areola; or
(b) Prosthetic genitalia, breasts, or buttocks; or
(2) Sexual conduct.
b. "Public property" means real property in which a state agency or a political
subdivision has an ownership interest.
2. A person is guilty of a class A misdemeanor for a first offense and a class C felony for
a second or subsequent offense if the person organizes an adult-oriented
performance:
a. On public property; or
b. At a business establishment frequented by minors, or where minors are or may
be invited as a part of the general public.
### § 12.1-27.1-03.5. Public libraries prohibited from maintaining explicit sexual material -

Report.
1. As used in this section:
a. "Explicit sexual material" means any material which:
(1) Taken as a whole, appeals to the prurient interest of minors;
(2) Is patently offensive to prevailing standards in the adult community in North
Dakota as a whole with respect to what is suitable material for minors; and
(3) Taken as a whole, lacks serious literary, artistic, political, or scientific value
for minors.

b. "Public library" means a library established under chapter 40-38.
2. A public library may not maintain in its children's collection inventory books that contain
explicit sexual material.
3. By January 1, 2024, each public library shall develop a policy and process for
reviewing library collections to ensure conformance with the requirements of this
section. The policy must include a procedure:
a. For the removal or relocation of explicit sexual material in the public library;
b. For the development of a book collection that is appropriate for the age and
maturity levels of the individuals who may access the materials, and which is
suitable for, and consistent with, the purpose of the library;
c. For the public library to receive, evaluate, and respond to a request from an
individual regarding the removal or relocation of one or more of the books or
other materials in the library collection containing explicit sexual material; and
d. To periodically review the library collection to ensure the library collection does
not contain explicit sexual material in the children's collection.
4. Each public library shall provide a compliance report to the legislative management
before May 1, 2024, on the implementation of collection development and relocation of
materials policies as required by this section and to ensure sufficient compliance with
this section.
### § 12.1-27.1-04. Definitions.

Repealed by S.L. 1981, ch. 157, § 1.
### § 12.1-27.1-05. Civil proceeding a prerequisite to criminal liability.

Repealed by S.L. 1981, ch. 157, § 1.
### § 12.1-27.1-06. Commencement of civil proceeding - Intervention - Seizure of materials.

Repealed by S.L. 1981, ch. 157, § 1.
### § 12.1-27.1-07. Procedures - Expanded district court - Appeal.

Repealed by S.L. 1981, ch. 157, § 1.
### § 12.1-27.1-08. Judgment - Effect - Notice to constructive defendants - Use in criminal

prosecutions.
Repealed by S.L. 1981, ch. 157, § 1.
### § 12.1-27.1-09. Preliminary injunction - Limitations.

Repealed by S.L. 1981, ch. 157, § 1.
### § 12.1-27.1-10. Conflicting decisions - Resolution.

Repealed by S.L. 1981, ch. 157, § 1.
### § 12.1-27.1-11. Exceptions to criminal liability.

Sections 12.1-27.1-01 and 12.1-27.1-03 shall not apply to the possession or distribution of
material in the course of law enforcement, judicial, or legislative activities; or to the possession
of material by a bona fide school, college, university, museum, or public library for limited
access for educational research purposes carried on at such an institution by adults only.
Sections 12.1-27.1-01 and 12.1-27.1-03 shall also not apply to a person who is returning
material, found to be obscene, to the distributor or publisher initially delivering it to the person
returning it.
### § 12.1-27.1-12. State pre-emption of local laws regulating obscenity.

This chapter is applicable throughout the state, and a political subdivision may not enact
new, or enforce existing, ordinances or resolutions regulating or prohibiting the dissemination of

obscene materials, or controlling obscene or adult-oriented performances, except ordinances
authorized by section 5-02-09, section 58-03-11, chapter 11-33, or chapter 40-47.
