Have You Been Charged Distributing Obscene Materials in Georgia?
Georgia laws heavily penalize crimes involving obscene materials. The statutes can be complicated, and the criminal process can be challenging to navigate on your own. The Attorneys at Lawson and Berry have over 50 combined years of criminal defense experience. Contact us now for a free case evaluation.
What are Obscene Materials?
The Supreme Court set out in Miller v. California how to determine when the material is obscene. 413 U.S. 15, (1973). The material is obscene if
1. To the average person, applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion;
2. The material taken as a whole lacks serious literary, artistic, political, or scientific value; and
3. The material depicts or describes, in a patently offensive way, sexual conduct specifically:
- Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated;
- Acts of masturbation;
- Acts involving excretory functions or lewd exhibition of the genitals;
- Acts of bestiality or the fondling of sex organs of animals; or
- Sexual acts of flagellation, torture, or other violence indicating a sadomasochistic sexual relationship.
In the case of Jenkins v. Georgia, the Court held that nudity alone is not enough to make material legally obscene. 94 S. Ct. 2750, (1974).
What Constitutes Distributing Obscene Materials?
O.C.G.A. §16-12-80 states a person commits the offense of distributing obscene material when he sells, lends, rents, leases, gives, advertises, publishes, exhibits, or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so, provided that the word “knowing,” as used in this Code section, shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter; and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material; provided, however, that the character and reputation of the individual charged with an offense under this law, and, if a commercial dissemination of obscene material is involved, the character and reputation of the business establishment involved may be placed in evidence by the defendant on the question of intent to violate this law.
O.C.G.A. §16-12-80 specifies some additional examples of obscene material:
- Undeveloped photographs, molds, printing plates, and the like shall be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it.
- Any device designed or marketed as useful primarily for the stimulation of human genital organs
- The material may be obscene if the offer to do so or the possession with the intent to do so is a commercial exploitation of erotica solely for the sake of their prurient appeal.
Georgia Case Law
A man was convicted of distributing obscene materials as an employee of an adult bookstore. The accused was charged with possession of obscene material with intent to distribute. The evidence showed that the outside of the store clearly identified it as an adult bookstore, which had movies. An admission fee was charged for the pornographic section of the section where hundreds of sexually explicit magazines were displayed and offered for sale. Therefore, the court found there was sufficient evidence to find the store manage guilty beyond a reasonable doubt of commercial exploitation of erotica and distributing obscene materials. Kervin v. State, 172 Ga. App. 478, (1984).
Penalty for a Conviction of Being Charged with Distributing Obscene Materials in Georgia
A person guilty of distributing obscene materials in Georgia will be charged with a misdemeanor of a high and aggravated nature.
Defenses in Georgia
The material was restricted to a person associated with an institute of higher learning: If a faculty member of a matriculated student was going to be teaching or pursuing a course related to such material, then they are entitled to receive the material. Therefore, the crime of distributing obscene materials has not been committed.
The material was authorized in writing by a licensed medical practitioner or psychiatrist: If a person had written authorization by a medical professional to receive the materials, that would be a defense.
What are Not Defenses
The accused did not have actual knowledge: Georgia case law has defined knowledge as either actual or constructive knowledge. A person has constructive knowledge if they have knowledge of facts, which would put a reasonable, and prudent person notice as to the suspect nature of the material. Ball v. State, 149 Ga. App. 270, (1979).
It was protected speech: Courts have found that obscene material is not protected under the First Amendment and therefore, states are entitled to enact statutes criminalizing materials that are obscene.
The material was not obscene to everyone: Georgia has chosen to define obscenity offenses in terms of “contemporary community standards.” Therefore, it does not have to offensive to everyone but to the average person in the community.
Being convicted of distributing obscene materials will have a drastic impact on your like. Do not take a chance by representing yourself. Call our office and speak to one of our Georgia Criminal Defense Lawyers. We will be available to your 24 hours a day, 7 days a week. Call now.