What puts a person or entity at risk of prosecution?

Obscenity is the explicit depiction of sexual activity in a manner that is without artistic value in a way that would offend a reasonable person. An individual may find themselves charged with obscenity if they produce or distribute obscene materials.

There are a number of degrees of Obscenity with which you may be charged, and the charges that a prosecutor may bring will vary depending on any prior convictions for obscenity and the scope of the audience to which you attempt to distribute materials.

Example

Someone who produces a sexually explicit film that the average person would consider obscene and who distributes it as a whole-seller may be found guilty of obscenity in the first degree.

The Legal Definition of Obscenity In New York

Article 235 of the NY Penal Code sets out the legal definition of Obscenity. Obscenity in the Third Degree is a misdemeanor an under state criminal laws. Obscenity in the First or Second Degree is felonies an under state criminal laws.

Elements

The “elements” of Obscenity are the things that the prosecutor must prove in order for you to be found guilty of this offense.  Basically, for a defendant to be convicted in a criminal trial for Obscenity under Article 235 of the NY Penal Code, all of the following must be true:

• You must have been involved in the production or distribution of materials that a reasonable person would find to be sexually explicit.
• Those materials must have been without any artistic value.
• Those materials must have been very offensive to a reasonable person.
• You must have promoted those materials or attempted to distribute them to others.

Let’s delve a bit more deeply into these elements of the crime of Obscenity to understand their meaning better.

Element #1: Sexually Explicit

The definition of Sexually Explicit in the context of obscenity is actual or simulated sexual intercourse, criminal sexual act, sexual bestiality, masturbation, sadism, masochism, excretory or lewd exhibition of the genitals. In People v. Gilmore, a person was charged with Obscenity for “showing males and females engaging in various explicit sexual” on the video to an audience.

A person who promotes and distributes sexually explicit bestiality videos to an audience may be found guilty of Obscenity in New York.

Element #2: Without Artistic Value

The definition of Artistic Value is “lacks serious literary, artistic, political, or scientific value.” A bar owner charged with obscenity for promoting a performance by nude dancers who fondled their genitals on stage.

While these actions were found to be lacking in artistic value, mere nudity such as that often found in a Greek or Roman marble would not because “nudity and obscenity are not synonymous.”

The person from the above example would likely be found to have violated this part of the obscenity test as it is highly unlikely a court would find any artistic value in the explicit bestiality videos.

Element #3: Offensive to a Reasonable Person

The definition of a reasonable person under New York law with relation to Obscenity is best found in case law.

In People v. Gilmore, it was held that contemporary community standards are to be evaluated with the ubiquitous “average person”—the ever-present “reasonable man or woman” in mind. In the above example, it is likely that if the average theoretical person were to be shown the explicit bestiality video that they would find it shocking and offense.

Element #4: Promotion

The definition of Promotion is making materials available to the public. The scope to which materials are made available is not a factor.

In People on Complaint of Savery v. Gotham Book Mart, it was held that an expensive book that was part of a limited edition could still be considered to have been promoted to the public even though only a limited audience could purchase it.

In the above example, if the sexually explicit film had been shown to even a small room full of people, it could be considered to have been promoted for the purposes of obscenity law. 

Related Offenses

Charges of Obscenity may be brought in addition to, or in place of, charges for certain other related offenses, including:

Related Offense #1: Disseminating Indecent Material to Minors

The definition of Disseminating Indecent Material to Minors is knowingly distributing indecent material to minors. This offense is a class D felony.

The person from the above example might be found guilty of Disseminating Indecent Material to Minors if they distributed their bestiality video to someone under the age of 18.

Related Offense #2: Prostitution

The definition of Prostitution agrees to participate in sexual conduct with another person in exchange for a fee. This offense is a class B misdemeanor.

Someone who agrees to engage in sexual intercourse in exchange for money may be charged with Prostitution.

What are some of the essential and impactful cases?

Obscenity laws in New York have been defined and refined by a number of essential and impactful cases.

• In Young v. Abrams, it was held that a person who promotes obscene material in the course of his business is presumed to do so with knowledge of its content.
• In People v. Kirkpatrick, it was held that a person who possesses six or more of the same obscene object does so with the intent to distribute.
• In People v. Illardo, it was held that there are an exception and protection for non-managerial individuals who work at adult-themed theaters from prosecution under obscenity laws while there is no such protection for non-managerial employees who work in adult-themed bookstores.

What agencies detect, investigate, and prosecute this crime?

Investigations and prosecutions for Obscenity in New York are carried out by the local police department, the New York Office of the Attorney General and federal and international agencies may also be involved depending upon the scope of distribution.

With the advent of the internet, it is now possible to distribute materials further than ever before and someone sitting in a warehouse in New York can now distribute obscene materials to New Delhi or beyond. If the crime involves child pornography, there are also state and federal task forces that may be involved in an investigation.

Since many materials that are classified as obscene under New York law may involve the abuse or injury of children or animals, these crimes are treated as incredibly serious, and agencies put considerable effort into identifying and prosecuting perpetrators.

Penalties for Violating Obscenity Laws in New York

Obscenity can be either a misdemeanor or a felony depending on the degree of the crime. The potential penalties include:

The penalties for Obscenity in New York vary depending on the degree:

• For Obscenity in the Third Degree, sentences can range from no jail time and community service to a maximum of 90 days in jail.
• For Obscenity in the Second Degree, sentences can range from no jail time with Probation to up to 4 years in jail.
• For Obscenity in the First Degree, sentences can range from no jail time with Probation, to up to 7 years in jail.

Sentencing Enhancements

The penalties for Obscenity in New York are steeper if you have a previous conviction for Obscenity. Previous convictions will elevate a conviction from Obscenity in the Third Degree to Obscenity in the Second Degree.

What are some of the additional consequences of being convicted? 

There can be many serious additional consequences of being convicted of Obscenity. If the conviction involves child pornography or a number of other sexual elements, then you may be required to register on the sex offender registry.

Registration will restrict where you can live and where you can work and carries with a serious social stigma. Any felony conviction may also impact your status in the United States if you are not a citizen. Your green card may be revoked, and you may be subject to deportation. Your ability to legally possess and own a firearm may also be restricted

Legal Defenses to Obscenity

Nobody wants to go to jail or pay a fine—and nobody wants a conviction for Obscenity on their record. People may start to associate you with this crime, even though they do not understand the specifics of your case.

There are several powerful legal defenses you can use to fight these charges they include:

Defense #1: Acceptable Purpose

One of the defense for Obscenity is that the material was made available for an acceptable purpose under New York law. These include scientific, educational, and governmental purposes.

There are limits to this defense. In People v. Fraser, it was determined that the protections for scientific research did not extend to the dissemination of child pornography.

If someone in government were to compile a database of illegal pornographic images which they could distribute to social media and search companies so that they could blacklist those images they would likely not be found guilty of Obscenity.

Defense #2: No Interest other than Employment

The second defense for Obscenity is that the defendant has no other interest in the material other than their employment in a non-managerial and non-supervisory capacity. This exemption protects non-managerial workers who work in adult theaters and similar establishments.

This is a very limited exemption and as People v. Martin held even managing the premises excludes someone from this category.

Call us for help. 

For questions about Obscenity charges in New York, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us. Obscenity charges can carry significant jail time. If you are convicted of Obscenity in the First Degree, you may spend up to 7 years in jail.

Depending on the type of material you may also face requirements to register as a sex offender which can carry lifelong consequences that restrict where you can live and work. Obscenity in the First and Second Degrees are also Felony level crimes which have severe consequences in New York and which can affect your immigration status even if you have a green card.

If you or a loved one have been charged with Obscenity, please do not hesitate to give us a call. We have local criminal law offices in your area.