Obscenity — Louisiana

Posted by & filed under Crimes Defined, Criminal Statutes, Sex Crimes.

NEW ORLEANS SEX CRIMES DEFENSE ATTORNEY

 

By: Elizabeth B. Carpenter, Esq. — New Orleans Criminal Lawyer

 

If you or a loved one is facing an Obscenity  charge, you must contact a criminal defense attorney for a consultation. Early intervention by an experienced Sex Offender Defense Attorney can make a tremendous difference in your case. Elizabeth B. Carpenter, Esq. is dedicated to the defense of those accused of Sex Crimes in Louisiana. We are here to defend you, not judge you.
Whoever is convicted of Obscenity Through Solicitation of a Minor will have to Register as a Sex Offender for 15 years — To be conducted annually…

Obscenity — La RS 14:106

The crime of obscenity is the intentional:

(1)  Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view, or in any prison or jail, with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.

(2)  Participation or engagement in, or management, operation, production, presentation, performance, promotion, exhibition, advertisement, sponsorship, electronic communication, or display of, hard core sexual conduct when the trier of fact determines that the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary, artistic, political, or scientific value.

Hard core sexual conduct is the public portrayal, for its own sake, and for ensuing commercial gain of:

(i)  Ultimate sexual acts, normal or perverted, actual, simulated, or animated, whether between human beings, animals, or an animal and a human being; or

(ii)  Masturbation, excretory functions or lewd exhibition, actual, simulated, or animated, of the genitals, pubic hair, anus, vulva, or female breast nipples; or

(iii)  Sadomasochistic abuse, meaning actual, simulated or animated, flagellation, or torture by or upon a person who is nude or clad in undergarments or in a costume that reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or in the condition of being fettered, bound, or otherwise physically restrained, on the part of one so clothed; or

(iv)  Actual, simulated, or animated touching, caressing, or fondling of, or other similar physical contact with a pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals, or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or

(v)  Actual, simulated, or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured, or marketed for such purpose.

(3)  Sale, allocation, consignment, distribution, dissemination, advertisement, exhibition, electronic communication, or display of obscene material, or the preparation, manufacture, publication, electronic communication, or printing of obscene material for sale, allocation, consignment, distribution, advertisement, exhibition, electronic communication, or display.

Obscene material is any tangible work or thing which the trier of fact determines  that the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest, and which depicts or describes in a patently offensive way, hard core sexual conduct specifically defined in Paragraph (2) of this Subsection, and the work or thing taken as a whole lacks serious literary, artistic, political, or scientific value.

Requiring as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, or publication to a purchaser or consignee that such purchaser or consignee also receive or accept any obscene material for resale, distribution, display, advertisement, electronic communication, or exhibition purposes; or, denying or threatening to deny a franchise to, or imposing a penalty, on or against, a person by reason of his refusal to accept, or his return of, such obscene material.

 

Solicitation or enticement of an unmarried person under the age of 17 years (a minor) to commit any act prohibited above.  — Requires Sex Offender Registration.

Advertisement, exhibition, electronic communication, or display of sexually violent material.  “Violent material” is any tangible work or thing which the trier of facts determines depicts actual or simulated patently offensive acts of violence, including but not limited to, acts depicting sadistic conduct, whippings, beatings, torture, and mutilation of the human body.

No person, knowing the content of an advertisement to be sexually explicit as defined in this Paragraph shall transmit or cause to be transmitted an unsolicited advertisement in an electronic communication to one or more persons within this state that contains sexually explicit materials without including in the advertisement the term “ADV-ADULT” at the beginning of the subject line of the advertisement.  A “subject line” is the area of an electronic communication that contains a summary description of the content of the message.

Lack of knowledge of age or marital status shall not constitute a defense for OBSCENITY BY SOLICITATION OF A MINOR.

*** If any employee of a theatre or bookstore acting in the course or scope of his employment, is arrested for an offense designated in this Section, the employer shall reimburse the employee for all attorney’s fees and other costs of defense of such employee.  Such fees and expenses may be fixed by the court exercising criminal jurisdiction after contradictory hearing or by ordinary civil process.

*** The provisions of this Section do not apply to recognized and established schools, churches, museums, medical clinics, hospitals, physicians, public libraries, governmental agencies, quasi-governmental sponsored organizations and persons acting in their capacity as employees or agents of such organizations, or a person solely employed to operate a movie projector in a duly licensed theatre.

 

Hearing Requirement

Except for those motion pictures, printed materials, electronic communication and photographic materials showing actual ultimate sexual acts or simulated or animated ultimate sexual acts when there is an explicit, close-up depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts, no person, firm, or corporation shall be arrested, charged, or indicted for any violations of a provision of this Section until such time as the material involved has first been the subject of an adversarial hearing under the provisions of this Section, wherein such person, firm, or corporation is made a defendant and, after such material is declared by the court to be obscene, such person, firm, or corporation continues to engage in the conduct prohibited by this Section.  The sole issue at the hearing shall be whether the material is obscene.

The hearing shall be held before the district court having jurisdiction over the proceedings within 72 hours after receipt of notice by the person, firm, or corporation.  The person, firm, or corporation shall be given notice of the hearing by registered mail or by personal service on the owner, manager, or other person having a financial interest in the material; provided, if there is no such person on the premises, then notice may be given by personal service on any employee of the person, firm, or corporation on such premises.  The notice shall state the nature of the violation, the date, place, and time of the hearing, and the right to present and cross-examine witnesses.

The state or any defendant may appeal from a judgment.  Such appeal shall not stay the judgment.  Any defendant engaging in conduct prohibited by this Section subsequent to notice of the judgment, finding the material to be obscene, shall be subject to criminal prosecution notwithstanding the appeal from the judgment.

No determination by the district court pursuant to this Section shall be of any force and effect outside the judicial district in which made and no such determination shall be res judicata in any proceeding in any other judicial district.  In addition, evidence of any hearing held pursuant to this Section shall not be competent or admissible in any criminal action for the violation of any other Section of this Title; provided, however, that in any criminal action, charging the violation of any other Section of this Title, against any person, firm, or corporation that was a defendant in such hearing, involving the same material declared to be obscene under the provisions of this Section, then evidence of such hearing shall be competent and admissible as bearing on the issue of scienter only.

 

PENALTIES

On a first conviction, whoever commits the crime of obscenity shall be fined not less than $1,000 dollars nor more than $2,500 dollars, or imprisoned, with or without hard labor, for not less than 6 months nor more than 3 years, or both.

On a second conviction, the offender shall be imprisoned, with or without hard labor for not less than 6 months nor more than 3 years, and in addition may be fined not less than $2,500 dollars nor more than $5,000 dollars.

On a third or subsequent conviction, the offender shall be imprisoned with or without hard labor for not less than 2 years nor more than 5 years, and in addition may be fined not less than $5,000 dollars nor more than $10,000 dollars.

When a violation is with or in the presence of an unmarried person under the age of 17 years, the offender shall be fined not more than $10,000 dollars and shall be imprisoned, with or without hard labor, for not less than 2 years nor more than 5 years, without benefit of parole, probation, or suspension of sentence.

When a corporation is charged with violating this Section, the corporation, the president, the vice president, the secretary, and the treasurer may all be named as defendants.  Upon conviction for a violation of this Section, a corporation shall be sentenced.  All corporate officers who are named as defendants shall be subject to the penalty provisions.

Please follow and like us:

Leave a Reply