To obtain a conviction for possession of obscene materials (without intent to sell), the prosecution must prove the following three elements beyond a reasonable doubt:
- That the defendant knowingly possessed or knowingly had custody or knowingly had control of certain materials.
- That the materials in question are obscene.
- That the defendant knew of the material’s obscene nature/character/content.
To determine of the materials in question are legally obscene, the prosecution must prove each of the following:
- That an average person would find the materials in question appeal to the prurient interest when applying the contemporary community standards of the county where the case is being prosecuted.
- That the materials in question depict or describe sexual conduct in a patently offensive manner.
- That materials in question, when taken as a whole, lack any serious literary, artistic, political, or scientific value.
As one can see, the elements for possession of obscene materials include terms that are not necessarily used by normal people in every day conversation, such as the term “prurient interest.” Even the term “obscene,” while understood by most people, is a word that many might debate or consider open to interpretation.
For this reason, the Florida Legislature gave wrote specific definitions into Florida law that juries must use when deliberating possession of obscene materials cases.
Thus, the term “prurient interest sex” refers to an interest in sex that is a shameful or morbid interest in sex, nudity or excretion. Included in this definition is the limitation that materials are not prurient if an average person in present times can view the materials candidly, openly, and with a normal interest in sex.
Of course, the Florida Legislature has not defined the term “normal interest in sex.”
In the next section we will be discussing the Florida Legislature’s definitions for obscenity and the term “patently offensive.” We will also discuss the role these terms play in a jury’s evaluation of the evidence.
It is important to note that while these terms have specific definitions, most juries are swayed to the prosecution when the alleged child pornography in question is obvious on its face. This includes cases of possession of child pornography where the images clearly depict minors in a lewd or sexual scenario or engaged in a sex act.
The question of obscenity is one that will be a big part of any possession of child pornography case, whether brought in Fort Lauderdale or somewhere else. For that a reason, a criminal lawyer representing a person accused of possession of child pornography must determine whether or not the images in question fall within the category of those that are illegal.
Some example are easy to identify. Clearly any image or movie that depicts an adult having sex with a minor is obscene. Clearly any image or movie that depicts minors having sex with minors is obscene. Clearly any image or movie that depicts a minor masturbating or using a sex toy or other object in a lewd or lascivious manner is obscene.
As a criminal lawyer, it is important to recognize that prosecutors do not only focus their attention on the obvious cases. One can imagine political environments where those with religious or conservative motivations decide to attack legitimate artistic expressions simply because they depict nudity or sexuality.
For example, it is not far-fetched to imagine conservative groups pushing for the prosecution of those who create artistic expressions that depict an act of homosexuality or lesbian intimacy because it offends their religious beliefs.
CLEARLY, such prosecutions would be contrary to the rights enumerated in the Constitution.
For that reason, the Florida Legislature wrote a very specific definition for obscenity. While parts of this definition are vague, it is clear that certain expressions of sexuality are not illegal just because they are sexual in nature.