§712-1216 Promoting pornography; prima facie evidence. (1) The fact that a person engaged in the conduct specified by section 712-1215 is prima facie evidence that the person engaged in that conduct with knowledge of the character and content of the material disseminated or the performance produced, presented, directed, participated in, exhibited, or to be exhibited.
(2) In a prosecution under section 712-1215, the fact that the person:
(a) To whom material pornographic for minors was disseminated;
(b) To whom a performance pornographic for minors was exhibited;
(c) To whom an admission ticket or pass was sold to premises where there was or was to have been exhibited such performance; or
(d) Who was admitted to premises where there was or was to have been such performance,
was at that time, a minor, is prima facie evidence that the defendant knew the person to be a minor. [L 1972, c 9, pt of §1; gen ch 1993; am L 2015, c 35, §30]
Revision Note
In subsection (2)(a) and (b), "or" deleted and punctuation changed and in subsection (2)(c), punctuation changed pursuant to §23G-15.
Cross References
Prima facie evidence, see §701-117.
COMMENTARY ON §712-1216
Section 712-1216(1) provides that engagement in the act of promoting pornography, generally or for minors, is prima facie evidence that the actor did so with knowledge of the character and content of the material disseminated or performance produced, presented, directed, participated in, exhibited, or to be exhibited. The subsection addresses itself to a special prosecutorial problem. Since §§712-1214 and 1215 require knowledge on the promoter's part of the character and content of the pornography which the promoter promotes, the prosecution is required to prove, beyond a reasonable doubt, that the defendant knew of the character and content of the pornographic material or performance. However in such cases there is often little evidence of the actor's knowledge of such facts. A recent work in this area has underlined this difficulty quite well:
How does one prove (beyond a reasonable doubt) what moves in the recesses of another's mind? How does one show that a bookseller knows the items in his stock, that a theater owner is familiar with the movies he exhibits, or that a newsdealer is aware of the general character of the magazines he displays? Aside from those dubious dialogues in which a dealer says how "hot" is his merchandise-- conversations most unlikely to take place when the purchaser is a fifteen-year-old--scienter, realistically viewed is rarely susceptible of sure proof. But common sense may assist. No corner hardware merchant would long prosper, lacking general familiarity with the items he had for sale... similarly, honest book and magazine dealers have some general knowledge of the character of the wares they order, put on their shelves, sometimes display and ultimately hope to sell. The draft statute would transmute this common sense into law....1
With this reasoning in mind, subsection (1) allows the prosecution to get its case to the jury on the issue of the actor's knowledge of character and content of the material, film, or performance on proof of the specified conduct only.
Much the same evidentiary problem, difficulty in proving mens rea, is presented when the age of another person is made an element of the offense, as is the case in §712-1215. Section 712-1216(2) provides the same prima facie rule with respect to age that subsection (1) provides with respect to the nature of the material or performance. Again, the evidentiary rule merely permits the prosecution to get the case to the trier of fact on that issue: the burden of proof beyond a reasonable doubt remains on the prosecution. In such situations, the defendant would be free to introduce, but would not be obligated to do so, any evidence tending to negate the inference that the defendant knew the minor's age. In this vein, the minor's appearance, the minor's representations, and apparently official identification records (e.g., a birth certificate, driver's license, or draft card) would all be relevant factors.
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§712-1216 Commentary:
1. Kuh, Foolish Figleaves? 264-65 (1967) (emphasis added).
SUPPLEMENTAL COMMENTARY ON §712-1216
Act 35, Session Laws 2015, amended subsection (1) by deleting the reference to §712-1214.
Law Journals and Reviews
The Lum Court and the First Amendment. 14 UH L. Rev. 395 (1992).
Case Notes
Subsection (1) held unconstitutional. 63 H. 596, 634 P.2d 80 (1981).