Sunday, August 21, 2011

Warning: This Blog Post Contains Analysis of Obscene Matter

     Today I clicked on a headline from WLKY which said, in big bold letters: 

"Police: Man shows naked pictures, says 'Let War begin' Outside Ted Nugent Show."

     The following is an excerpt from the WLKY report:
     According to arrest records, 52-year-old Willie Marchman was at the Kentucky State Fairgrounds about 11 p.m. Thursday after a concert ended at Cardinal Stadium.  Police said Marchman was showing pictures of half-naked women to passers-by and saying, "Let the war begin."
    I don’t know if you noticed the huge, glaring difference between the headline and the actual report, but for those of you who are blind or have a memory even shorter than mine, the headline says he showed “naked” pictures; the story reports that he showed “half-naked” pictures.  The report does not say that Marchman was charged with any sort of offense relating to the distribution of obscenity, but the article certainly seems to take issue with the fact that the guy had some naked or maybe not naked pictures of girls.  Let’s see if there is a difference.
     I don’t know the facts of Mr. Marchman’s case.  He may not have done anything wrong or illegal whatsoever.  WLKY may have made up every word for all I know.  So we’ll come up with a hypothetical situation:  Bob, who likes to rock and has a predilection toward scantily clad women, heads off to the Motley Crue reunion show in Lexington.  Bob reaches into his stack of girlie pictures and grabs a couple on his way out the door to the concert.  One is a picture of a nude woman, while the other is a picture of a woman in lingerie - cut out of the JCPenny catalogue.
     In the parking lot at the show, Bob gets pumped up and ready to rock.  While walking into the arena, he holds up one of the pictures of the women in order to kick-start the hearts of his fellow concert goers.  The other picture he keeps in his pocket with the intention of holding it up for exhibition during the encore.  Police arrest him before he even gets into the concert and charge him with Distribution of Obscene Matter.  We will assume that the rest of the concert goers are all at least 18 years old.  Does it make a difference which picture he held up for exhibition?  Let’s look at the KRS.

KRS 531.020 governs the distribution of obscene matter.  It reads:
(1) A person is guilty of distribution of obscene matter when, having knowledge of its content and character, he:
(a) Sends or causes to be sent into this state for sale or distribution; or
(b) Brings or causes to be brought into this state for sale or distribution; or
(c) In this state, he:
1. Prepares, or
2. Publishes, or
3. Prints, or
4. Exhibits, or
5. Distributes, or
6. Offers to distribute, or
7. Has in his possession with intent to distribute, exhibit or offer to distribute, any obscene matter.
(2) Distribution of obscene matter is a Class B misdemeanor unless the defendant has in his possession more than one unit of material coming within the provisions of this chapter, in which case it shall be a Class A misdemeanor.

     The pertinent portions of the above statute are when a person “exhibits” or “has in his possession with intent to [exhibit] any obscene matter.”  Some of you might be wondering at this point, “What exactly IS obscene matter?”  Some of you might be thinking “I don’t know how to define ‘obscenity’ but I know it when I see it.”  Either way, the definition under the KRS may help.  Let’s check it out.

(2) "Matter" means any book, magazine, newspaper, or other printed or written material  or any picture, drawing, photograph, motion picture, live image transmitted over the
Internet or other electronic network, or other pictorial representation or any statue or  other figure, or any recording transcription or mechanical, chemical or electrical  reproduction or any other articles, equipment, machines, or materials.

(3) "Obscene" means:
(a) To the average person, applying contemporary community standards, the predominant appeal of the matter, taken as a whole, is to prurient interest in sexual conduct; and
(b) The matter depicts or describes the sexual conduct in a patently offensive way; and
(c) The matter, taken as a whole, lacks serious literary, artistic, political, or scientific value

     Looks like the pictures would definitely constitute “matter,” as the word “picture” is included in the definition.  That part is simple.  Whether the photos are “obscene” or not is a more difficult question for me to answer.  Notice that subsections (a) and (b) in the definition of “obscene” both end with the word “and.”  That means that all 3 subsections have to apply.  If even one of them isn’t applicable, then the material is NOT obscene.
     Let’s take the JCPenny cut out.  First things first, I think the average person in our community, applying contemporary standards, would not find that the predominant appeal of the JCPenny cut out is to prurient interest in sexual conduct.  In fact, the predominant appeal of the picture is that of marketing a product – the lingerie.  Those girls in the JCPenny catalogue are typically just displaying a product.  They aren’t nude and they aren’t being sexually suggestive.
     What about the picture of the nude girl that Bob had in his pocket.  Pursuant to KRS 531.020, Bob did possess the picture and intended to exhibit it during the encore when Nikki Sixx wailed out that big guitar solo in “Shout at the Devil.”  But does it count as “obscene???”  A jury would probably have to answer that question.  If I was Bob’s lawyer, I would argue that the picture didn’t meet the requirements of subsection (b) in the definition of “obscene.”  Although the picture may depict a nude woman, nothing in the facts seemed to indicate that the woman depicted was engaging in any sort of “sexual conduct” – much less in a patently offensive way.  If the girl in the photo is just standing or laying there, Bob probably has a good argument.
     Since there aren’t a lot of lawyers who focus on distribution of obscenity, Bob should talk to an experienced Louisville sex abuse or sex crime lawyer.  If the lawyer has experience working with sex related charges, they should be able to provide excellent representation.

     If you have been charged with sexual abuse in Louisville, Lexington, Frankfort, Elizabethtown or the surrounding areas, you should have a lawyer that will fight for your Constitutional Rights.  Call Gruner & Simms, PLLC for a free consultation at 502.618.4949.  Visit our website at  Results.  As fast as the law will allow.

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