University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1976 Juvenile Obscenity Statutes: A Proposal and Analysis Jerold H. Israel University of Michigan Law School, [email protected] Rita Ann Burns Available at: https://repository.law.umich.edu/articles/1454 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Criminal Law Commons, Juvenile Law Commons, Legislation Commons, and the State and Local Government Law Commons Recommended Citation Israel, Jerold H. "Juvenile Obscenity Statutes: A Proposal and Analysis." R. Burns, co-author. U. Mich. J. L. Reform 9, no. 3 (1976): 413-527. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. JUVENILE OBSCENITY STATUTES: A PROPOSAL AND ANALYSIS PROPOSED STATUTE ON DISSEMINATION OF OBSCENE MATTER TO MINORS ........................... 415 ANALYSIS OF THE PROPOSED STATUTE ....................... 418 I. BASIC OBJECTIVES ................................ 420 II. DEFINING OBSCENITY: THE TRIPARTITE TEST ............. 426 A. Basic Functions ............................... 426 B. Application to Minors .......................... 428 C. Inclusion in Statute ............................ 431 D. Nature of the Definition ......................... 435 E. Defining the Prurient Interest Element ............. 437 1. The Nature of Prurient Appeal ................ 437 2. Special Audience .......................... 441 F. Defining the Patent Offensiveness Element .......... 442 G. Defining the Social Value Element ................ 446 H. Adaptation to Minors .......................... 449 1. Age Variation ............................. 449 2. Adult Viewpoint .......................... 454 I. Community Standards .......................... 457 1. Application .............................. 457 2. Geographic Scope ......................... 458 J. "Considered as a Whole" ......................... 467 K. The Role of Pandering ......................... 467 III. DEFINING OBSCENITY: SPECIFIC SEXUAL CONTENT ........ 472 A . Introduction ................................. 472 B. Sexual Intercourse ............................. 475 C. Sado-Masochistic Abuse ........................ 477 D. Depiction of Masturbation ...................... 478 E. Sexual Touching .............................. 480 F. Sexual Excitement ............................. 482 G . N udity ...................................... 484 1. Inclusion of a Nudity Category ................ 484 2. Definition of Nudity ........................ 489 IV. DEFINING OBSCENITY: MISCELLANEOUS MATTERS ......... 491 A. Inclusion of Verbal Material ..................... 491 B . A ge ........................................ 494 V. DISTRIBUTION .................................... 498 A. Inclusion of Noncommercial Dissemination ......... 498 B . D isplay ..................................... 503 C. Performances ................................. 505 VI. EXEMPTIONS ..................................... 505 A. ParentalExemption ............................ 505 B. Other Exemptions ............................. 508 VII. SCIENTER ....................................... 509 A. Nature of the Material ......................... 510 B. Reckless Disregard ............................ 517 C. A ge ........................................ 52 1 D. M ail Distributions ............................. 524 VIII. CRIMINAL PENALTY ............................... 525 IX. FACILITATIVE MISREPRESENTATION ...................... 526 JUVENILE OBSCENITY STATUTES: A PROPOSAL AND ANALYSIS Jerold H. Israel* Rita Ann Burns** PROPOSED STATUTE ON DISSEMINATION OF OBSCENE MATTER TO MINORSt Section 1. The following definitions apply in this Act: (a) "Disseminate" means to (sell, lend, give, exhibit, or show) (sell, lend, exhibit, or show for monetary consideration) or to offer or agree to do the same. (b) "Erotic fondling" means touching a male's or female's [clothed or] unclothed genitals, pubic area, [or buttocks,] or a female's breast, for the purpose of sexual stimulation. (c) "Exhibit" means to do any of the following: (i) (Present a performance) (Present a performance for monetary consideration). (ii) (Sell, give, or offer or agree to sell or give) (Sell or offer or agree to sell) a ticket to a performance. (iii) Admit a minor to premises where a performance (is being presented or is about to be presented) (is being presented or is about to be presented for monetary consideration). (d) "Knowingly." A person knowingly disseminates sexually explicit matter to a minor when the person knows both the nature of the mat- ter and the status of the minor to whom the matter is disseminated. A person knows the nature of matter when either of the following cir- cumstances exists: [Alternative A of subparagraph (d) (i)] (i) The person is aware of the character and content of the matter. [Alternative B of subparagraph (d) (i) ] *Professor of Law, University of Michigan. B.B.A., 1956, Western Reserve Uni- versity; J.D., 1959, Yale University. **B.S., 1973, Iowa State University; J.D., 1976, University of Michigan. tWe have placed in brackets material covering areas that arguably should not be in- cluded in the statute. Where some coverage of the general area clearly is needed, but a choice is presented between alternative provisions, the alternatives are placed in parentheses alongside each other. See, e.g., lines 1 and 2 of paragraph 1(a). An ex- ception is paragraph 1(d), where the alternatives are so lengthy that they could not be accommodated by use of parentheses. The alternatives there have been stated in separate paragraphs designated as alternatives A, B, and C. 416 Journal of Law Reform [VOL.9:413 (i) The person is aware of both the sexually explicit content of the matter and the fact that the matter will appeal to the prurient interest of minors. [Alternative C of subparagraph (d) (i)] (i) The person is aware of both the sexually explicit content of the matter and the fact that the matter appeals to the prurient interest, is patently offensive, and lacks serious literary, artistic, political, and scientific value for minors. [Alternative A of subparagraph (d) (ii)] (ii) The person recklessly disregards circumstances suggesting the character and content of the matter. [Alternative B of subparagraph (d) (ii)] (ii) The person recklessly disregards a substantial risk both that the matter contains sexually explicit material and that the matter ap- peals to the prurient interest of minors. [Alternative C of subparagraph (d) (ii)] (ii) The person recklessly disregards a substantial risk both that the matter contains sexually explicit material and that the matter ap- peals to the prurient interest, is patently offensive, and lacks serious literary, artistic, political, and scientific value for minors. A person knows the status of a minor when either of the following circumstances exists: (i) The person is aware that the minor is under (16) (17) years of age. (ii) The person recklessly disregards a substantial risk that the minor is under (16) (17) years of age. A person knowingly makes a false representation as to the age of a minor or as to the status of being a parent or guardian of a minor when that person either is aware that the representation is false or recklessly disregards a substantial risk that the representation is false. (e) "Masturbation" means manipulation, by hand or instrument, of the human genitals, whether one's own or another's, for the purpose of sexual stimulation. (f) "Minor" means any person under (16) (17) years of age. (g) "Nudity" means the lewd showing of the genitals or pubic area of a person of the age of puberty or older. (h) "Obscene for minors." Sexually explicit matter is "obscene for minors" when the matter meets all of the following criteria: (i) Considered as a whole, it appeals to the prurient interest of minors as determined by the experience of minors in the contemporary (local) (statewide) community. (ii) It affronts contemporary (local) (statewide) community stand- ards of adults as to what is suitable matter for minors. (iii) Considered as a whole, it lacks serious literary, artistic, political, and scientific value for minors. In determining whether sexually explicit matter appeals to the prurient interest of minors, affronts community standards as to suitable matter SPING 1976] Juvenile Obscenity Statutes for minors, and lacks serious literary, artistic, political, and scientific value for minors, the matter shall be judged with reference to the average minor of ((15) (16) years of age) (the general age of the minor to whom the matter was disseminated). [Where the circumstances of presentation, sale, distribution, or publicity indicate that sexually explicit matter is being com- mercially exploited by the defendant for the sake of its prurient appeal, such evidence may be probative in determining whether the matter ap- peals to the prurient interest of minors, affronts community standards as to suitable matter for minors, and lacks serious literary, artistic, political, and scientific value for minors.] (i) "Prurient interest." Sexually explicit matter appeals to the prurient interest if it has a tendency to cause intense sexual stimulation. In de- termining whether sexually explicit