SELLING OBSCENE MATERIAL TO MINORS
Selling obscene materials to minors seems like a fairly clear and unambiguous crime, but is actually quite complex. Violations can lead to hefty fines and possible jail time.
What is the legal definition of Selling Obscene Materials to Minors?
Selling obscene materials to minors is defined in a group of statutes, from NRS 201.256 through NRS 201.2655.
NRS 201.256 – Definitions.
As used in NRS 201.256 to 201.6555, inclusive, unless the context otherwise requires, the words and terms defined in NRS 201.257 to 201.264, inclusive, have the meanings ascribed to them in those sections.
NRS 201.2565 – “Distribute” defined.
“Distribute” means to transfer possession with or without consideration.
NRS 201.257 – “Harmful to minors” defined.
“Harmful to minors” means that quality of any description or representation, whether constituting all or a part of the material considered, in whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic abuse which predominantly appeals to the prurient, shameful or morbid interest of minors, is patently offensive to prevailing standards in the adult community with respect to what is suitable material for minors, and is without serious literary, artistic, political or scientific value.
NRS 201.2581 – “Material” defined.
- A book, pamphlet, magazine, newspaper, printed advertising or other printed or written material.
- A motion picture, photograph, picture, drawing, statue, sculpture or other visual representation or image; or
- A transcription, recording or live or recorded telephone message.
NRS 201.259 – “Minor” defined.
“Minor” means any person under the age of 18 years, but as applied to the showing of a motion picture excludes any person employed on the premises where the motion picture is shown.
NRS 201.2595 – “Motion Picture” defined.
“Motion picture” means a film or a video recording, whether or not it has been rated appropriate for a particular audience, that is:
- Placed on a videodisc or videotape; or
- To be shown in a theater or on television,
- and includes, without limitation, a cartoon or an animated film.
NRS 201.261 – “Nudity” defined.
- The showing of the human female breast with less than a fully opaque covering of any portion of the areola and nipple.
- The showing of the human male or female genitals or pubic area with less than a fully opaque covering of any portion thereof; or
- The depiction of the human male genitals in a discernible turgid state whether or not covered.
NRS 201.262 – “Sado-masochistic abuse” defined.
“Sado-masochistic abuse” means:
- Flagellation or torture practiced by or upon a person whether or not clad in undergarments, a mask or bizarre costume; or
- The condition of being fettered, bound or otherwise physical restrained.
NRS 201.263 – “Sexual conduct” defined.
“Sexual conduct” means acts of masturbation, sexual penetration or physical contact with a person’s unclothed genitals or pubic area.
NRS 201.264 – “Sexual excitement” defined.
“Sexual excitement” means the condition of human male or female genitals in a state of sexual stimulation or arousal.
NRS 201.265 – Unlawful acts; penalty.
Except as otherwise provided in NRS 200.720 and 201.2655, and unless a greater penalty is provided pursuant to NRS 201.560, a person is guilty of a misdemeanor if the person knowingly:
- Distributes or causes to be distributed to a minor material that is harmful to minors, unless the person is the parent, guardian or spouse of the minor. or
- Exhibits for distribution to an adult in such a manner or location as to allow a minor to view or to have access to examine material that is harmful to minors, unless the person is the parent, guardian or spouse of the minor.
- Sells to a minor an admission ticket or pass for or otherwise admits a minor for monetary consideration to any presentation of material that is harmful to minors, unless the minor is accompanied by his or her parent, guardian, or spouse.
- Misrepresents that he or she is the parent, guardian or spouse of a minor for the purpose of:
- Distributing to the minor material that is harmful to minors; or
- Obtaining admission of the minor to any presentation of material that is harmful to minors.
- Misrepresents his or her age as 18 or over for the purpose of obtaining:
- Material that is harmful to minors; or
- Admission to any presentation of material that is harmful to minors.
- Sells or rents motion pictures which contain material that is harmful to minors on the premises of a business establishment open to minors, unless the person creates an area within the establishment for the placement of the motion pictures and any material that advertises the sale or rental of the motions pictures which:
- Prevents minors from observing the motion pictures or any material that advertises the sale or rental of the motion pictures; and
- Is labeled, in a prominent and conspicuous location, “Adults Only.”
NRS 201.2655 – Exemptions.
The provisions of NRS 201.256 to 201.2655, inclusive, do not apply to:
- A university, community college, school, museum or library which is operated by or which is under the direct control of this state or a political subdivision of this state; or
- An employee or independent contractor of an institution listed in subsection 1, if the employee or independent contractor is acting within the scope of his or her employment or contractual relationship.
What does it mean by “obscene” and “harmful to minors”?
The Nevada Legislature chose to separate this particular “obscenity” crime from the other obscenity crimes because it refers to more than just “obscene” material and includes any material that is “harmful to minors.” The definition of “harmful to minors” is complex in the statute, but is not difficult to understand when it is broken down.
In order for material to be considered “harmful to minors,” it must satisfy two elements: The “content” element, and the “offensive” element.
To satisfy the “content” element, the material must contain, describe or represent:
- Sexual conduct;
- Sexual Excitement; or
To satisfy the “offensive” element, the material must:
- Appeal to prurient, shameful or morbid interests; and
- Qualify as patently offensive to prevailing standards in the adult community with respect to what is suitable for minors; and
- Lack serious literary, artistic, political or scientific value.
Please Note: The “offensive” element is essentially the same definition as “obscene” for the “obscenity” crimes, with the only difference that here, the standard is what is acceptable for minors, rather than what is acceptable in the community as a whole.
So, basically pornography?
Not exactly. While pornographic films are the most obvious example, there are many more types of material that can satisfy this element, including:
- Printed advertising;
- Motion pictures;
- Live or recorded telephone messages;
- Any other written, printed, visual representation, image or audio recorded material.
The statute is intentionally vague and basically allows for any material, in any form, that the prosecutor feels may be considered “harmful to minors.” The purpose of this is clearly to give the prosecutor wide latitude in determining when to press charges.
So, then how does material meet the “offensive” element?
The statute defines it as ‘appealing to the prurient, shameful or morbid interest of minors; patently offensive to prevailing standards in the adult community with respect to what is suitable material for minors; and without serious literary, artistic, political or scientific value.’
This definition is somewhat confusing as written, but when taken piece-by-piece is almost identical to the definition of “obscene” (for a more detailed description of “obscenity” click here).
The first part states that the material must “appeal to the prurient, shameful or morbid interest of minors.” “Prurient” is an uncommon word that most people outside the legal profession will never even hear, let alone understand the definition. Quite simply, it refers to an interest in sex that is morbid, degrading, and/or unhealthy. In other words, the words “prurient,” “shameful,” and “morbid” are used all in the same context and refer to the same thing. Further, this is a vague definition as everyone’s definition of an “unhealthy” interest in sex would likely be different.
The second part requires that the material be “patently offensive to prevailing standards in the adult community with respect to what is suitable for minors.” This is essentially the same standard as the “contemporary community standards” used in the obscenity laws. It is nothing more than a concise way of saying that whether the material is “harmful to minors” is based, at least in part, on the morals and general ethical concerns of the local area where the crime is being tried. In other words, conduct that is seen as perfectly acceptable in Las Vegas, may be thought of as “obscene” in Elko, or Carson City, or Lake Tahoe. For the sake of prosecuting “obscene” crimes, the “community” that matters is where the crime is being charged, so it would be the same “community” from which a jury would be drawn. The main difference is that this particular statute relates the standards specifically to what the community feels is appropriate for minors whereas the obscenity laws deal with the community as a whole.
Finally, the third part requires that the material is “without literary, artistic, political or scientific value.” This is exactly the same as the standard for obscenity, and is consequently similarly vague because it has no definition of what “serious literary, artistic, political or scientific value” means. The easiest way to explain this is using examples:
- The film industry is full of examples of movies that would likely be considered obscene, except for the fact that, as movies, they are a form of both literary and artistic forms of expression;
- In the early 1990’s rap music was attacked as “obscene.” The individual groups being attacked were able to defend themselves because their music was, at its core, a form of artistic expression, and could not be considered “obscene”;
- During the 1960’s, many women participated in a women’s rights political movement that was expressed in the burning of bras in public areas. Although many people, and communities, believed the expression to be obscene (particularly if the bra was first taken off in public), the conduct was not obscene as it was conduct that portrayed serious political value.
- Generally, any scientist performing studies related to sex, gender, relationships, or intercourse will be considered performing work of scientific value, despite the fact that their conduct, and the conduct of those participating in the research would otherwise be considered “obscene.”
Any material that meets both of these elements is deemed “harmful to minors.”
Okay, knowing what is “harmful to minors” doesn’t explain what “exhibiting” material to minors means, though?
There are a variety of ways to violate NRS 201.265. All of them require knowledge; knowledge that the material is “harmful to minors” and that your conduct is considered “exhibiting” the material to minors.
Please Note: “Knowledge” does not always mean actual knowledge. Constructive knowledge is adequate for the purposes of this statute. Constructive knowledge means that you should have known, either that the material was “harmful to minors” or that you were “exhibiting” the material in such a way that minors had access.
Some of the possible actions that can violate NRS 201.265 include:
- Distributing material that is “harmful to minors” to a minor or minors, unless the minor’s parent, guardian or spouse is present;
- Causing to be distributed Material that is “harmful to minors;”
- Exhibiting such material in such a manner or location that minors are able to view, access or examine the material, unless the minor’s parent, guardian or spouse is present;
- Selling to a minor an admission ticket, or admitting a minor for monetary consideration, to any presentation of material that is harmful to minors, unless the minor’s parent, guardian or spouse is present;
- Misrepresenting that you are the parent, guardian or spouse of a minor for the purpose of either:
- Distributing material that is “harmful to minors” to the minor; or
- Obtaining admission for the minor to a presentation of such material;
- Misrepresenting that you are over 18 for the purpose of either:
- Obtaining material that is “harmful to minors”; or
- Obtaining admission to a presentation of such material;
- Exhibiting movies containing material that is “harmful to minors”, for sale or rental, in a business establishment that is open to minors, unless the material is kept in an area where minors are prevented from observing the material and which is labeled “Adults Only” in a prominent location.
Obviously, this last part is becoming increasingly irrelevant as movie rental locations are all closing their doors and switching to online rentals. However, it is still important to note that if minors are allowed into the business, all materials must be kept in a clearly labeled “Adults Only” area.
Please Note: Because the age of consent is 16 in Nevada, and because it is legally possible for people to marry prior to attaining 18 years of age, all of the above-mentioned conduct contains the exception that the minor may be able to access the material if they are with their spouse, or permitted by an adult with legal guardianship over the minor.
What are the possible penalties?
Exhibiting, selling, or distributing obscene material to minors is a misdemeanor in Nevada, carrying with it:
- Up to 6 months in a county jail; and/or
- Possible fines up to $1,000.
Are there any Defenses?
Yes, of course there are. Because the obscenity laws are all very vague, prosecuting the crimes is difficult. Some of the possible defenses include:
- Material was not harmful – As noted above, determining what is “harmful to minors” is a very subjective task, and is dictated largely by the particular community where the prosecution is taking place. If you can show that the material does not meet the 2-part test set forth above, then there is no “obscenity” and the charges against you should be dropped or dismissed.
- No Intent/Knowledge – As noted above, violation of NRS 201.265 requires knowledge of both the “harmful” aspect as well as the exhibition of the material to minors. If you can show that there was no intent to exhibit the material to minors, or that you reasonably believed that it was not harmful to minors, then the charges against you should be dropped or dismissed.
- Lack of Evidence – As with any crime, the prosecution bears the burden of proving every element of the crime “beyond a reasonable doubt.” As already noted above, charges relating to obscenity are difficult to prove because of the lack of physical evidence. If there is not enough evidence to uphold this high level of proof, then the charges should be dropped or dismissed.
What should I do if I’ve been charged with Exhibiting, selling or distributing obscene materials to minors?
As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.