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Criminal Jury Instructions

Criminal Jury Instructions Home

7.4-1  Obscenity -- § 53a-194

Revised to December 1, 2007

The defendant is charged [in count __] with obscenity.  The statute defining this offense reads in pertinent part as follows: 

a person is guilty of obscenity when, knowing its content and character, (he/she) (promotes / possesses with intent to promote) any obscene material or performance.

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 - Obscene material
The first element is that the (material / performance) in question is obscene.  In determining this, put away all your preconceived opinions and beliefs about what constitutes obscenity and let me read to you the statutory definition of obscenity.  The law states that any material or performance is "obscene" if 1) taken as a whole, it predominantly appeals to the prurient interest, 2) it depicts or describes in a patently offensive way a prohibited sexual act, and 3) taken as a whole, it lacks serious literary, artistic, educational, political, or scientific value.

"Predominant appeal" shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its distribution to be designed for some other specially susceptible audience.  Whether the material or performance is obscene shall be judged by ordinary adults applying contemporary community standards.1  In applying contemporary community standards, the state of Connecticut is deemed to be the community.

"Prurient" refers to lustful, lascivious, or lewd propensities in persons.  Under this definition, nudity by itself is not obscene.

"Prohibited sexual act" means erotic fondling, nude performance, sexual excitement, sado-masochistic abuse, masturbation or sexual intercourse.  "Erotic fondling" means touching a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast.  "Nude performance" means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state in any play, motion picture, dance or other exhibition performed before an audience.  "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.  "Sado-masochistic abuse" means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed.  "Masturbation" means real or simulated touching, rubbing or otherwise stimulating a person's own clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breast, either by manual manipulation or with an artificial instrument.  "Sexual intercourse" means intercourse, real or simulated, whether genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex or between a human and an animal, or with an artificial genital.

Now, you will recall that you are required to apply contemporary community standards, and the community has been defined in this section as the state of Connecticut.  In determining the guilt or innocence of this defendant, you must apply what you believe the Connecticut standard is with regard to obscenity.  Also, you must regard this conduct or behavior as a whole, and you must judge the impact of this material or performance upon the ordinary person rather than upon a particularly susceptible or sensitive person.  However, if such material is designed for children or other specially susceptible persons, the material or performance must be judged according to the impact of it upon those persons.

Under this statute, "material" includes anything tangible that is capable of being used or adapted to arouse prurient, shameful or morbid interest, whether through the medium of reading, observation, sound or in any other manner.  Undeveloped photographs, molds, printing plates, and the like may be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it.  "Performance," in this statute, includes any play, motion picture, dance or other exhibition performed before an audience.

Such material or performance, considered as a whole, must lack serious literary, artistic, educational, political or scientific value.  The work or performance must be considered as a whole.  If the work or performance under consideration predominately appeals to the prurient interest in sex of the ordinary person, and it depicts or describes in a patently offensive way a prohibited sexual act as defined for you, it should be regarded as obscene.

Element 2 - Promoted or possessed with intent to promote
The second element is that the defendant (promoted / possessed with the intent to promote) any obscene material or performance.  To "promote" material or a performance means to (manufacture / issue / sell / give / provide / lend / mail / deliver / transfer / transmit / publish / distribute / circulate / disseminate / present / exhibit / advertise / produce / direct / participate in) the material or performance.  You will note that all these terms relate in some measure to business operations.  It is not a crime to merely possess any of this material that is capable of being used or adapted to arouse interest in a person's own home or even to display such material or performance to friends in some private setting.

Element 3 - Knowingly
The third element is that the defendant knew the content and character of this material.  A person acts "knowingly" with respect to conduct or to a circumstance when (he/she) is aware that (his/her) conduct is of such nature or that such circumstance exists.  <See Knowledge, Instruction 2.3-3.>

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the material or performance was obscene, 2) the defendant (promoted / possessed with the intent to promote) the material or performance, and 3) (he/she) had knowledge of the contents.

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of obscenity, then you shall find the defendant guilty.  On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements, you shall then find the defendant not guilty.
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1 See State v. Gagliardi, 174 Conn. 46 (1977) (state must offer evidence of community standards).
 


 

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