erotic sexual activity on the part of nude or substantially undressed persons;

(iv) A unit of material is any independently distributed material or any material distributed as part of an anthology or collection of separate materials which constitutes more than a small and insignificant part of the whole.

(f) Prohibition Upon Use of Compliance in Prosecution. The compliance by any person with the requirement of subsection (b) of this section shall not be used against him, either as evidence of his violation of laws pertaining to obscenity or related matters, or as a reason for initiating or pursuing any investigation of him for violation of such laws, or in any other manner whatsoever. The prohibition of this subsection shall be applicable to all law enforcement officers and all proceedings within the United States, whether federal, state or local, and shall extend to the fruits of any investigation undertaken contrary to the provisions of this subsection; Provided, however, that the prohibition of this subsection shall not be applicable to proceedings under statutes enacted pursuant to subsection (c) of this section or to proceedings under section IV of this Title occasioned by material described in subparagraph (b) (i) (A) of section IV.

III. OFFENSE TO SENSIBILITIES.

(a) A person is guilty of offense to sensibilities if he displays, distributes or communicates potentially offensive sexual materials to another or to others, without consent.

(b) For the purposes of this section, "potentially offensive sexual material" means:

(i) in cases where the communication is individual in nature, as in house-to-house distribution or individually distributed leaflets:

(A) any pictorial representation, photographic or otherwise, of uncovered adult human genital areas, of human sexual intercourse, sodomy, masturbation, or direct physical stimulation of clothed or unclothed genitals, of flagellation or torture indicating an erotic relationship, or any description of, advertisement of or offer to sell such pictorial material where such description or advertisement includes such materials or a detailed verbal description thereof;

(B) any artificial human penis or vagina or device primarily designed physically to stimulate genitals, or any description, advertisement or offer to sell or distribute such an artificial organ or device where such description or advertisement presents either a pictorial representation or a detailed verbal description of such organ or device or its manner of use; or

(C) any pictorial or verbal material consisting primarily of instructions in human sexual techniques or of fictional or factual descriptions of human sexual practices, or any description, advertisement, or offer to sell or distribute such material, where such advertisement or description presents an excerpt or excerpts from such material incorporating descriptions of sexual techniques or practices or presents a summary of the contents

of the material describing in detail its treatment of sexual techniques or practices.

(ii) In cases where the communication is several in nature, as in broadcasts or public displays, any pictorial representation, photographic or otherwise, of uncovered adult human genital areas, of human sexual intercourse, sodomy, masturbation or direct physical stimulation of clothed or unclothed genitals, of flagellation or torture indicating an erotic relationship, or of any artificial human penis or vagina;

Provided that, material otherwise within the definition of this subsection shall not be deemed to be potentially offensive sexual material if it constitutes only a small and insignificant part of the whole of a single catalogue, book or other work the remainder of which does not primarily treat sexual matters.

(c) Offense to sensibilities is a Class A misdemeanor.

(d) This section shall not be applicable to distributions of material by mail upon which a symbol is required to be affixed by section 1 of this Title, nor shall it be applicable to communications several in nature, such as broadcasts, which are prefaced or covered by notice of their sexual content, so as to permit persons effectively to decline to see the potentially offensive matter.

(e) Prosecution should be initiated under this section only where (i) the federal government exercises general legislative jurisdiction over the place where the offensive communication was received, or, (ii) the receipt of the offensive communication violated the legislative policy of the state of reception and where that policy cannot effectively be vindicated because of jurisdictional or other similar limitations upon state law enforcement.

IV. DISTRIBUTION OF ADULT SEXUAL MATERIAL TO MINORS.

(a) A person is guilty of distribution of adult sexual material to minors if he sells, distributes, displays or communicates adult sexual material to a minor or minors without the consent of the parent or guardian of the minor.

(b) For the purposes of this section:

(i) "adult sexual material" means:

(A) any material bearing a label under the provisions of subsection (b) of section II of this Title, and which is required to bear such a label; or

(B) any unit of pictorial or verbal material which is made up in whole or in large part of a depiction or description or depictions or descriptions of human sexual intercourse, masturbation, sodomy, direct physical stimulation of clothed or unclothed genitals, of flagellation or torture indicating an erotic relationship, or any unit of pictorial material which is primarily a depiction of uncovered adult human genitals or of erotic sexual activity on the part of nude or substantially undressed persons.

(ii) "Minor" means any person less than seventeen years of age, except such persons who are married or who reside away from their parents or guardians in attendance at a college or university, in

pursuance of employment, or while enrolled in a job-training program.

(iii) A unit of material is any independently distributed material or any material distributed as part of an anthology or collection of separate materials which constitutes more than a small and insignificant part of the whole.

(c) Distributing adult sexual material to minors is a Class A misdemeanor.

(d) It is a defense to a prosecution under this section to show that a communication of adult sexual material to a minor or minors was part of a single simultaneous distribution or communication to several or many persons, a substantial portion of whom were not minors, where the communication to minors was a necessary consequence of the communication to the adult audience.

(e) Prosecutions should be initiated under this section only where (i) the federal government exercises general legislative jurisdiction over the place where the distribution to a minor was accomplished or, (ii) where the distribution to a minor violated the legislative policy of the state where the distribution was received and where that policy cannot effectively be vindicated because of jurisdictional or other similar limitations upon state law enforcement.

§ 1852. Indecent Exposure.

(1) Offense. A person is guilty of a Class A misdemeanor if, with intent to arouse or gratify the sexual desire of any person, including the actor, he exposes his genitals or performs any other lewd act under circumstances in which, in fact, his conduct is likely to be observed by a person who would be offended or alarmed.

(2) Jurisdiction. There is federal jurisdiction over an offense defined in this section under paragraph (a) of section 201.

Comment

See comment to § 1853, infra.

§ 1853. Loitering to Solicit Sexual Activity.

(1) Offense. A person is guilty of a Class B misdemeanor if, under circumstances in which, in fact, his conduct is likely to cause offense or alarm to others, he loiters in any public place with intent to solicit another or offer himself for the purpose of engaging in sexual activity.

(2) Jurisdiction. There is federal jurisdiction over an offense defined in this section under paragraph (a) of section 201.

Comment

Sections 1852 and 1853 penalize sex-related behavior involving a substantial likelihood of alarming or giving serious offense to others. The drafts are derived from modern code revisions (N.Y. Pen. Law §§ 245.00, 240.35; Mich. Rev. Crim. Code §§ 2325, 5540 (c); Calif. Pen. Code Revision §§ 1609, 1610; A.L.I. Model Penal Code §§ 251.1, 251.3). In order to minimize constitutional vagueness problems, both sections prohibit overt conduct: actual sexual exposure, and conduct manifesting an intent to solicit or offer sexual activity under circumstances in which it would be offensive or alarming. Note that § 1853 applies both to normal and deviate sexual solicitation. The concept of offense or alarm to "others" is an effort to define a kind of public nuisance; it would not reach, for example, an isolated private proposal of sexual relations although the addressee might find the proposal offensive. On the other hand, loitering for the purpose of making proposals indiscriminately to persons in or near a public facility involves so high a likelihood of offending others that restraint on such activity appears warranted. Conceivably, prosecution of offenses under § 1853 should be limited to cases where complaint is lodged by one, other than a law enforcement officer, who has been annoyed.

Part C. The Sentencing System

Chapter 30. General Sentencing Provisions

§ 3001. Authorized Sentences.

(1) In General. Every person convicted of an offense against the United States shall be sentenced in accordance with the provisions of this Chapter.

(2) Felonies and Misdemeanors. Every person convicted of a felony or a misdemeanor shall be sentenced to one of the following alternatives:

(a) probation or unconditional discharge as authorized by Chapter 31;

(b) a term of imprisonment as authorized by Chapter 32; or (c) a fine as authorized by Chapter 33. A fine authorized by Chapter 33 may be imposed in addition to a sentence to probation or to a term of imprisonment.

(3) Infractions. Every person convicted of an infraction shall be sentenced to one of the following alternatives:

(a) probation or unconditional discharge as authorized by Chapter 31; or

(b) a fine as authorized by Chapter 33. A fine authorized by Chapter 33 may be imposed in addition to a sentence to probation.

(4) Organizations. Every organization convicted of an offense against the United States shall be sentenced to one of the following alternatives:

(a) probation or unconditional discharge as authorized by Chapter 31;

(b) a fine as authorized by Chapter 33; or

(c) any special sanction authorized by section 405.

A fine authorized by Chapter 33 and any or all special sanctions authorized by section 405 may be imposed in addition to a sentence to probation.

(5) Civil Penalties. This Chapter shall not be construed to deprive the courts of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. An appropriate