Obscenity Flashcards
(22 cards)
What is the legal definition of “Obscene” material (the 3-part Miller Test)?
Material is obscene if:
- Its dominant theme, taken as a whole, appeals to the prurient interest in sex (a shameful or morbid interest).
- It goes substantially beyond customary limits of candor in description or representation of such matters.
- Taken as a whole, it lacks serious literary, artistic, political, or scientific value (SLAPS test). (Note: Community standards and values can change this over time)
What general actions involving obscene items are typically criminalized?
Knowingly:
- Preparing/producing for sale.
- Printing, copying, manufacturing for sale.
- Publishing, selling, lending, transporting, distributing, or exhibiting.
- Offering to do any of the above.
- Possessing with intent to sell, lend, transport, distribute, etc.
Obscenity - Possession Intent
What is the significance of where someone possesses an obscene item regarding intent?
Possession in public can be prima facie evidence of intent to sell, distribute, etc. (assumption is there’s no other reason to have it publicly).
Possession in private (e.g., at home) is generally not sufficient on its own to prove intent to distribute and may be protected.
How is “Nudity” defined in the context of child pornography laws?
A state of undress exposing:
- Human genitals
- Pubic area
- Female breast below the top of the nipple
- Buttocks with less than fully opaque covering
- Male genitals covered but in a “discernibly turgid state.”
What actions constitute the crime of Producing, Publishing, Selling, or Financing Child Pornography?
Knowingly doing any of the following:
- Accosting, enticing, or soliciting someone < 18 with intent to induce/force them into child porn.
- Producing, making, attempting, or preparing to produce/make child porn.
- Taking part or participating in the filming, photo, or production of child porn.
- Financing, attempting, or preparing to finance child porn.
What qualifies as “Child Pornography” material under the production/sale type statutes?
Sexually explicit visual material that:
- Utilizes or has as its subject an identifiable minor (recognizable as an actual person, proof of specific identity not always needed). OR
- Depicts a minor (real or not, e.g., AI-generated) in a state of nudity OR engaged in sexual conduct, where the depiction is obscene OR lacks serious value
Child Pornography - “Sexually Explicit Visual Material”
What counts as “Sexually Explicit Visual Material”?
Pictures, photos, drawings, sculptures, motion pictures, digital images (including stored on computers, temp internet cache if 3+ images/videos), or similar visual representations depicting enumerated acts like:
- Sexual bestiality
- Lewd exhibition of nudity
- Sexual excitement
- Sexual conduct
- Sadomasochistic abuse (Even undeveloped photos can count)
Example: A man takes a video of himself masturbating while looking at a non-nude 9-year-old at a sleepover. Could this be child pornography?
Yes. Even though the child wasn’t nude or engaged in conduct, the material depicted the defendant engaged in sexual activity and had an identifiable minor as the subject.
What actions are typically punished under laws regarding Possession, Reproduction, Distribution, Solicitation, and Facilitation of Child Pornography?
These laws punish:
- Knowing possession of child pornography.
- Various crimes involving the distribution, transmission, or display of child pornography.
- Allows inference that a person is < 18 if they present the appearance of being < 18 (“marketing”).
Is a picture showing simple nudity of a child always child pornography?
No. Generally requires “Nudity Plus” – something more to indicate lewd intent or sexual exploitation. Factors include:
- How the photo was posed
- Focus of the photo
- Context/conversation around the photo
- Zooming
- Background elements
- Whether the child was asked to pose suggestively. (A simple, innocent photo like a child splashing in a bath likely doesn’t qualify alone).
Child Pornography - McKeon Test Factors
What is the McKeon Test used for, and what factors does it consider?
Used to determine if a depiction involving a child is lewd or sexually exploitative (the “Plus” in “Nudity Plus”). Factors:
- Was the accused aroused?
- Did the accused make inappropriate gestures (towards self or child)?
- Did the accused make sexually improper remarks to the child?
- Did the accused ask the child to do something sexual/wrong?
What is the significance of finding child pornography in a computer’s temporary internet cache?
Possession of 3 or more images or streaming videos in the temporary internet cache can constitute knowing possession. Each image/video can potentially be a separate charge.
Use of Communication Systems Offenses
What is unlawful regarding the use of communication systems (computers, internet, etc.) in relation to minors and prohibited acts?
It is unlawful to use a computer, network, bulletin board, or other electronic means for the purpose of procuring or promoting the use of a minor for any prohibited sexual act or depiction (as defined in child pornography statutes).
Use of Communication Systems Offenses
What specific solicitation acts using communication systems by an adult (18+) towards a known minor (<15) are unlawful?
An adult (18+) knowingly using a communication system to solicit someone they know/should know is < 15 to:
- Expose genitals/sexual parts (self or child).
- Propose the child fondle genitals (self or adult).
- Propose sexual intercourse.
- Entice/invite the child into a vehicle, room, house, etc., for such purposes. (Often used in sting operations where police pose as minors)
Child Pornography - Membership Clubs Offense
What specific offense relates to gaining entry into groups that trade/share child pornography
It is unlawful to command, entreat, or attempt to get another person to send, submit, transfer, or provide child pornography as a condition for gaining entry into a group/association known for trading or sharing such material.
When is it unlawful to knowingly create a video/photo of a non-consenting person based on location/state of undress?
When the non-consenting person is:
- Totally nude, in undergarments, or in a state of undress, AND
- Is in a place where they have a reasonable expectation of privacy (e.g., bathroom, locker room, bedroom).
When is it unlawful to knowingly create a video/photo of a non-consenting person based on how the image was captured (“upskirting”)?
When the image is created by placing a recording device/lens directly beneath or between the person’s legs to capture intimate parts or undergarments that would not otherwise be visible to the public, AND the person has a reasonable expectation of privacy against such recording.
Can altering a photo or using AI to depict someone nude or in a sex act without consent be an “Unlawful Creation of Image”?
Yes. The definition can include creating/adapting/modifying an image using an actual person’s likeness (face, distinguishing characteristics) to depict them in a way they did not consent to (e.g., nude, sexual act), especially where privacy is expected.
Where can charges for obscenity, child pornography, and related offenses be filed (Venue)?
Venue is proper in any jurisdiction where:
- The unlawful act occurred.
- The material was created, produced, or reproduced.
- The material was possessed.
What constitutes “Unlawful Dissemination or Sale” of an image (often called “Revenge Porn”)?
Distributing/selling an image (video or still) of another person who is totally nude, in a state of undress, or depicted obscenely, with the intent to coerce, harass, or intimidate that person. This applies even if the person initially consented to the image being taken, but not to its dissemination with malicious intent. Includes recognizable altered/AI images.
What is “Sexual Extortion”?
Making a threat in writing to:
- Disseminate an image/video of someone nude or in a state of undress if they don’t perform a sexual act. OR
- Threatening not to delete, remove, or take back such an image/video unless the person performs a sexual act. (Requires the threat to be tied to compelling a sex act).
Fallback Charge
If conduct involving explicit material doesn’t perfectly fit a specific statute like child pornography or unlawful dissemination, what charge might still be applicable?
The charge of distributing or possessing Obscene material, provided the material meets the 3-part Miller Test definition of obscenity.
