NCJ Number
61295
Journal
UNIVERSITY OF ILLINOIS LAW FORUM Volume: 1978 Issue: 3 Pages: 711-757
Date Published
1978
Length
47 pages
Annotation
THE LEGAL RAMIFICATIONS OF THE ILLINOIS, NEW YORK, CALIFORNIA, AND FEDERAL CHILD PORNOGRAPHY STATUTES ARE EXAMINED, WITH PARTICULAR ATTENTION TO THE ILLINOIS STATUTE.
Abstract
THE 1977 LEGISLATIVE RESPONSES TO PUBLIC OUTCRIES AGAINST CHILD PORNOGRAPHY LED TO THE ENACTMENT BY TWELVE STATES AND THE FEDERAL GOVERNMENT OF CHILD PORNOGRAPHY LEGISLATION, WITH MOST STATES STRUCTURING SERIOUS CRIMINAL PENALTIES AROUND AN OBSCENITY STANDARD. THE STATUTES WERE NOT DESIGNED TO SUPPRESS OFFENSIVE SEXUAL ABUSE AGAINST CHILDREN WHO MIGHT BE USED IN PORNOGRAPHIC MEDIA. BY FOCUSING ON THE IMPACT OF THE ACTS DEPICTED ON THE PARTICIPANT, THE CHILD PORNOGRAPHY STATUTES PUT THE OBSCENITY DOCTRINE TO A USE NEVER ENVISIONED BY THE SUPREME COURT IN ITS DECISION IN THE CASE OF MILLER V. CALIFORNIA. THE MILLER OBSCENITY TEST REQUIRES FINDINGS OF AN APPEAL TO PRURIENT INTEREST, PATENT OFFENSIVENESS, AND LACK OF SERIOUS VALUE IN THE MATERIAL AT ISSUE. ALL OF THESE STANDARDS HAVE REFERENCES TO THE IMPACT OF THE MATERIAL ON THE RECIPIENT. ALSO OF RELEVANCE IS THE 'VARIABLE OBSCENITY' DOCTRINE, WHICH BROADENS THE DEFINITION OF OBSCENITY WHEN THE MATERIAL IS DIRECTED TO SEXUAL DEVIATES OR JUVENILES. THE COURT SHOULD PROVIDE MORE STRINGENT REQUIREMENTS FOR THE PROSECUTION'S BURDEN OF PROOF REGARDING THE EXISTENCE OF AN INTENDED AND PROBABLE RECIPIENT GROUP. IT SHOULD SPECIFY PRECISELY WHAT TYPES OF PORTRAYALS MAY TRIGGER APPLICATION OF VARIABLE OBSCENITY STANDARDS. FINALLY, IT SHOULD DIRECT THAT, AT LEAST OUTSIDE THE AREA OF DISSEMINATION TO JUVENILES, THE JUDGE OR JURY MAY VARY ONLY THE PRURIENT-APPEAL ELEMENT OF THE MILLER TEST, NOT THE TEST FOR SERIOUS VALUE. SUCH ACTION SHOULD REDUCE THE DANGERS OF IMPROPER CONVICTION FOR DISSEMINATING SOCIALLY VALUABLE SEXUAL DEPICTIONS OF CHILDREN, AS WELL AS OTHER FORMS OF UNPOPULAR SEXUAL EXPRESSION, WITHOUT LIMITING ACTION AGAINST THE 'HARD-CORE PORNOGRAPHY.' FOOTNOTES ARE PROVIDED, AND APPENDIXES CONTAIN ILLINOIS CHILD PORNOGRAPHY STATUTES. (RCB)