September 22, 2017 By Paul Wallin

Child Pornography

What is Obscene Matter in a Child Pornography Case?

One of the biggest keys in a child pornography case is the element that the defendant possessed, distributed, produced or sold “obscene matter” that involved a minor engaging in sexual conduct. If this element is not meant, you cannot be convicted of a child pornography crime.

Child Pornography Crimes Requiring Obscene Matter as an Element

Several child pornography crimes require the prosecution to prove that the material involved is obscene. These crimes include:

  • Production of child pornography (PC 311.1)
  • Distribution of child pornography (PC 311.1(a))
  • Advertising child pornography (PC 311.10)
  • Production of obscene live conduct involving a minor (PC 311.4)

However, this element can be tricky to define. What does the term “obscene matter” actually mean? Let’s explore this element of child pornography crimes in depth.

Obscene Matter in a Child Pornography Case

Where the term gets tricky is how the word “obscene” is defined.

Defining obscenity is something that has confounded even the U.S. Supreme Court. Justice Potter Stewart famously wrote in a case concerning whether a film was pornographic:

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

Justice Stewart’s candid observation that people know obscenity when they see it highlights why the concept is so hard to pin down. With this difficulty in mind, California’s prosecutors now use the definition of obscene found in California Penal Code Section 311.

Under this law, material is considered “obscene” if:

  • It shows or describes sexual conduct in an obviously offensive way
  • A reasonable person would conclude that it lacks serious literary, artistic, political or scientific value, and
  • An average adult person, applying the contemporary standards of California, would conclude that it appeals to a prurient interest

“Prurient interest” is a morbid, degrading and unhealthy interest in sex. This means the material appeals to something beyond what is considered a normal, healthy interest in sex.

Essentially, this definition means that not all representations of sexual conduct by minors will be considered child pornography. For example, if a film about the relationship between young lovers contains explicit scenes where two teenaged actors simulate sexual intercourse, the film could be considered to have significant artistic value. This means it would not be considered “obscene” despite this explicit scene.

Contact the Criminal Defense Attorneys at Wallin & Klarich Today

If you or a loved one is facing child pornography charges, it is critical that you speak to an experienced criminal defense attorney as soon as possible.

At Wallin & Klarich, our criminal defense lawyers have more than 40 years of experience successfully defending clients facing child pornography crimes. Our lawyers will use their knowledge and skill to help you obtain the best possible outcome in your case.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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