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OBSCENITY

Obscenity is a unique legal phenomenon for three rea-

sons. First, the defendant does not have to know the

exact content of the material at issue; he or she only

has to know the general nature of the material in order

to be convicted. Second, the defendant almost neces-

sarily has to employ social scientists to conduct a

study indicating that the material does not offend the

community’s standards. Third, because the crime of

obscenity depends on the community’s sentiment, the

defendant does not know if he or she has committed a

crime until the verdict is returned. Thus, someone can

own obscene material and not know that the material

is illegal until a jury decides whether it offends com-

munity standards. Psychological research is used to

measure community standards.

The legal definition and method of determining

obscenity were established in Miller v. California

(1973). Obscenity depends primarily on three factors.

A material is obscene if an average person applying

community standards would find that it (a) appeals to

a prurient interest (i.e., an unhealthy, morbid, or

degrading interest in sex), (b) depicts sexual conduct

specifically defined by the state as patently offensive,

and (c) lacks any artistic, literary, political, or scien-

tific value.

In Smith v. United States(1977), the court clarified

that “prurient interest” and “patently offensive” were

to be determined by an average person applying con-

temporary community standards. Additionally, in

Pinkus v. United States(1978), the court found that

children are not part of the community included in the

community standards criteria. However, these defini-

tions failed to address what constitutes a community.

States have much flexibility in determining what

behaviors are considered patently offensive sexual

material. The Miller ruling and state court rulings

have provided some examples. For instance, the

Illinois state court in Ward v. Illinois (1977) named

bestiality and sadomasochism as examples of patently

offensive sexual conduct. Currently, seven states do

not have obscenity laws. Of those that do, most states

include the Millerdefinition as well as provide exam-

ples of patently offensive materials. Other than these

definitions, stores selling such material and individu-

als have no explicit guidance on whether a material is

obscene or not. Because the definition of obscenity is

determined by community sentiment, it is difficult to

know whether a material is obscene until a jury makes

that determination. Researchers can conduct studies

and testify about the community’s standards.

Community Standards

and Expert Testimony

Following Miller (1973), courts began to address

whether parties had either the right or the requirement

to produce scientific data. Kaplan v. California (1973)

determined that defendants have the right to introduce

expert testimony on the issue of community standards.

In Commonwealth v. Trainor(1978), the judge stated

that public opinion polls are uniquely suited to inform

community standards debates. People v. Nelson

(1980) generally held that experts are needed because

otherwise jurors would rely on their own standards

instead of the community’s standards as the law

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