Punishments and Defenses for Crimes Relating to Obscene Materials
Possessing, distributing, publishing, etc. obscene matter is a misdemeanor (for a first conviction) and a felony (with a maximum $50,000 fine) if a prior conviction exists for a related offense. In addition, $5 and/or one day in jail are imposed for every unit of obscene material involved in the offense, up to an additional $10,000 or 360 days in jail. Participating in these activities knowing the material depicts a minor engaged in or simulating sexual conduct requires sex offender registration under Penal Code 290 and is a wobbler, punishable by up to one year in jail and a maximum $1,000 fine, or by imprisonment in state prison and a maximum $10,000 fine. Engaging in this known behavior for commercial consideration is a felony, punishable by two, three or six years in prison and a maximum $100,000 fine. Participating in these activities with an adult who is also going to engage in these activities is a wobbler, punishable by up to one year in jail and a maximum $2,000 fine, or a prison sentence. If the material is sold, distributed, etc. to a minor, it is a felony. These last three offenses also require sex offender registration.
Hiring a minor to distribute, publish, etc. these materials requires sex offender registration, and, for a first offense, is a misdemeanor, punishable by up to one year in jail and a maximum $2,000 fine, or a felony with a maximum $50,000 fine if the incurred suffered a prior conviction for this or for sexually exploiting a child. Persuading or coercing a minor into posing for or performing an obscene act is a felony and, if done for commercial purposes, is punishable by three, six or eight years in prison. The penalties rise if the participating minor was under 14 years of age.
Advertising or promoting obscene materials is a misdemeanor and includes the additional $5 charge and one-day sentence penalty described above. Managing, producing, sponsoring or exhibiting obscene live conduct is also a misdemeanor, as is requiring receipt of obscene materials as a condition of sale or delivery. A second offense raises the fine from $1,000 to $2,000, and having a third prior conviction for any related offense raises the charge to a felony.
Distributing or exhibiting illicit materials to minors or failing to prevent minors from accessing such materials is a misdemeanor for a first offense, and felony for a subsequent offense.
Sex crimes relating to obscene materials are defensible if the act charged was committed to aid legitimate scientific, medical or educational purposes, or if the matter portrayed lawful conduct between spouses (even if one or both are under the age of 18) or by a legally emancipated minor. Crimes alleging telephone distribution of obscene matter to minors are defensible if reasonable steps were taken to prevent unauthorized access to anyone under 18 – either requiring the recipient to use a pre-authorized access code or requiring credit card payment before the matter is transmitted. Parents are permitted to show obscene matter to their children and are also allowed to attend obscene exhibitions with their children. Those who exhibit obscene matter to minors accompanied by their parents are also exempt from prosecution. Finally, material that is admittedly obscene by applying the "average person test" may be lawfully distributed if used (in good faith) exclusively within a professional group pursuing legitimate professional purposes, is germane to such purposes, is not likely to be viewed by others, and will not likely appeal to prurient interests of the average person within the group.
The experienced California sex crime criminal attorneys at The Kavinoky Law Firm will thoroughly investigate the facts to uncover these types of defenses. They specialize in obscene material laws, enabling them to ensure that all applicable defense strategies are explored and articulated in the most favorable and effective ways. With law offices in Los Angeles and throughout California, they are conveniently located for anyone in need of an outstanding California sex crime defense lawyer. Contact them today for a free consultation and for unparalleled legal representation.
