Strengthen and Enforce Laws Against Obscenity
Published on November 17th, 2011
New York’s obscenity laws have been undermined and underused. New York State’s current laws protecting against obscenity (NYS Penal Law Sections 235 and 245.10-11) are not being effectively enforced. New York courts have made obscenity cases extremely difficult to prosecute.
The Catholic Conference recognizes that obscenity degrades our society and basic human dignity. The Conference encourages vigorous enforcement of New York State’s obscenity laws, supports increased funding for prosecutorial/judicial training on obscenity laws, and supports legislative action to correct misinterpretation of the current statutes governing obscenity.
Obscenity is a legal term used to describe various classes of illegal sexually-explicit materials and conduct, including child pornography, sexual materials that are harmful to minors, and offensive sexual images or performances directed to adult audiences.
The US Supreme Court has held that obscenity is not protected by the free speech clause of the First Amendment (Roth v. United States, 1957, and Miller v. California, 1973.) The Court established a detailed three-part test to determine if materials or performances are obscene and thus beyond the protection of the First Amendment. A jury, applying contemporary community standards, must find: (a) that the average person would find that it appeals to a prurient (i.e., an inordinate, unhealthy, lewd or lustful) interest in sex; (b) that it depicts or describes sexual conduct in a patently offensive manner; and (c) that a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political or scientific value. In addition, New York State has enacted laws which protect the public from obscenity and public displays of offensive material (NYS Penal Law Article 235 and Sections 245.10-11).
However, statutes governing obscenity are often misinterpreted by New York State courts and not fully utilized. For example, the Division of Criminal Justice Services indicates that there were only six obscenity convictions in the entire state of New York during the year 2001, and another six in 2002. New York State had only thirty convictions of disseminating obscene materials to minors in 2001 and 39 in 2002. The NYS Penal Law regarding pornography and obscene materials have clearly been underused, despite public opinion polls showing more than 80% of Americans desiring such laws to be vigorously enforced. Accordingly, there is a need to amend the Penal Law to ensure that local District Attorneys are able to prosecute obscenity cases and prosecutors and judges must benefit from well-funded training and education on obscenity laws and their enforcement.
Obscenity is not a victimless crime – it has a corrosive effect on individuals, families and society. Many people, along with their families and children, are seriously harmed by the distorted view of sexuality that is contained in pornographic pictures, books, magazines, movies, unwanted email, and websites. Among the many negative effects of obscenity are damaged relationships, the degradation and exploitation of women, and increased instances of sexual abuse and rape. So-called “adult businesses” in a community cause a decline in the quality of life and an increase in crime, drugs and prostitution. The “sex industry” has also created a deplorable traffic in human beings that in some cases has left women and children in a state of virtual slavery.
The Catechism of the Catholic Church states clearly that obscene material “does grave injury to the dignity of its participants (actors, vendors, the public), since each one becomes of base pleasure and illicit profit for others. It immerses all who are involved in the illusion of a fantasy world. It is a grave offense. Civil authorities should prevent the production and distribution of pornographic materials.”
You can download this document, Strengthen Laws Against Obscenity, in PDF form.