Pandering Obscenity

Being charged with a crime is scary. Being charged with a sex crime can be devastating. The accused sex offender faces extremely disturbing consequences, including the thought of being labeled a sex offender, the embarrassing public registration requirements, the hefty fines and court costs, and the potential prison time associated with the offense. The legal and social implications associated with sex crimes can be severe and long-lasting.

Sexual Registration and Incarceration Associated With Pandering Obscenity

Pandering obscenity is one of the various sex crimes in Ohio. It is a felony of the fifth degree, meaning the individual charged faces up to a maximum of 12 months in prison and a maximum $2,500 fine. If convicted of the crime, the defendant is required to register as a Tier I sex offender. Tier I sex offender status means the individual must register as a sex offender one time every year for 15 consecutive years.

If the individual has either a pandering obscenity or a disseminating matter harmful to juveniles conviction on his or her record, the crime is enhanced to a fourth-degree felony. This means with a prior pandering obscenity or disseminating matter harmful to juveniles conviction, beyond the same Tier I registration requirements, the individual on the new pandering obscenity charge now faces up to 18 months in prison and up to a $5,000 fine.

What Is Pandering Obscenity?

A person is charged with pandering obscenity when he or she is accused of creating, reproducing, publishing, buying, selling, advertising for sale, publicly distributing, or publicly displaying any obscene material when the person knows the nature of or the performance depicted in the material. A person can even be charged with pandering obscenity when he is accused of merely possessing material in order to attempt to engage in one of the prohibited acts listed above.

Specifically, the pandering obscenity statute, R.C. 2907.32, reads as follows:

(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:

(1) Create, reproduce, or publish any obscene material, when the offender knows that the material is to be used for commercial exploitation or will be publicly disseminated or displayed, or when the offender is reckless in that regard;

(2) Promote or advertise for sale, delivery, or dissemination; sell, deliver, publicly disseminate, publicly display, exhibit, present, rent, or provide; or offer or agree to sell, deliver, publicly disseminate, publicly display, exhibit, present, rent, or provide, any obscene material;

(3) Create, direct, or produce an obscene performance, when the offender knows that it is to be used for commercial exploitation or will be publicly presented, or when the offender is reckless in that regard;

(4) Advertise or promote an obscene performance for presentation, or present or participate in presenting an obscene performance, when the performance is presented publicly, or when admission is charged;

(5) Buy, procure, possess, or control any obscene material with purpose to violate division (A)(2) or (4) of this section.

(B) It is an affirmative defense to a charge under this section, that the material or performance involved was disseminated or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance.

(C) Whoever violates this section is guilty of pandering obscenity, a felony of the fifth degree. If the offender previously has been convicted of a violation of this section or of section 2907.31 of the Revised Code, then pandering obscenity is a felony of the fourth degree.

Pandering Obscenity Involving a Minor

Pandering obscenity involving a minor is a similar but much more serious offense. This offense is essentially the same offense as pandering obscenity; however, a minor is depicted in the material in some capacity. This offense is more serious because unlike pandering obscenity, it is a felony of the second degree unless the individual is accused of violating section (A)(5), meaning he or she is alleged to have purchased, obtained, or possessed the obscene material in which the minor is the participant. In that case, the offense is a felony of the fourth degree. If the individual has either: a pandering obscenity involving a minor, a pandering sexually oriented matter involving a minor, or an illegal use of a minor in nudity-oriented material or performance conviction on his or her record, a violation of section (A)(5) of the statute enhances the violation to a felony of the third degree.

Sexual Registration and Incarceration Associated With Pandering Obscenity Involving a Minor

As a felony of the second degree, the offense is punishable by a maximum eight years in prison and a $15,000 fine. As a felony of the fourth degree in violation of section (A)(5), the offense is punishable by a maximum 18 months in prison and a $5,000 fine. As a felony of the third degree, an individual faces a maximum of five years in prison and a $10,000 fine if convicted.

As opposed to the pandering obscenity conviction, a pandering obscenity involving a minor conviction requires Tier II sexual registration requirements. This means regardless of whether a felony of the second, third, or fourth degree, if convicted of pandering obscenity involving a minor, the offender is labeled a Tier II sex offender and shall register as a sex offender twice every year for 25 consecutive years.

So what conduct does this statute specifically prohibit? The pandering obscenity statute, R.C. 2907.321 reads as follows:

(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:

(1) Create, reproduce, or publish any obscene material that has a minor as one of its participants or portrayed observers;

(2) Promote or advertise for sale or dissemination; sell, deliver, disseminate, display, exhibit, present, rent, or provide; or offer or agree to sell, deliver, disseminate, display, exhibit, present, rent, or provide, any obscene material that has a minor as one of its participants or portrayed observers;

(3) Create, direct, or produce an obscene performance that has a minor as one of its participants;

(4) Advertise or promote for presentation, present, or participate in presenting an obscene performance that has a minor as one of its participants;

(5) Buy, procure, possess, or control any obscene material, that has a minor as one of its participants;

(6) Bring or cause to be brought into this state any obscene material that has a minor as one of its participants or portrayed observers.

(B)

(1) This section does not apply to any material or performance that is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance.

(2) Mistake of age is not a defense to a charge under this section.

(3) In a prosecution under this section, the trier of fact may infer that a person in the material or performance involved is a minor if the material or performance, through its title, text, visual representation, or otherwise, represents or depicts the person as a minor.

(C) Whoever violates this section is guilty of pandering obscenity involving a minor. Violation of division (A)(1), (2), (3), (4), or (6) of this section is a felony of the second degree. Violation of division (A)(5) of this section is a felony of the fourth degree. If the offender previously has been convicted of or pleaded guilty to a violation of this section or section 2907.322 or 2907.323 of the Revised Code, pandering obscenity involving a minor in violation of division (A)(5) of this section is a felony of the third degree.

As explicitly stated in both statutes (pandering obscenity and pandering obscenity involving a minor), if the accused has engaged in any prohibited acts outlined in the statute but has done so for a proper reason — -educational, artistic, political, scientific purposes, etc. — the accused may have a successful defense. Additionally, it is important to remember the material at issue must be obscene. Thus, in order to be found in violation of the statute, amongst other things, the state must prove beyond a reasonable doubt on either charge the material in question falls under the statutory definition of obscene material.

R.C. 2907.01 defines terms used throughout statute for Ohio's various sex crimes. R.C. 2907.01 states material or performance is "obscene" if any of the following apply:

(1) Its dominant appeal is to prurient interest;

(2) Its dominant tendency is to arouse lust by displaying or depicting sexual activity, masturbation, sexual excitement, or nudity in a way that tends to represent human beings as mere objects of sexual appetite;

(3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality;

(4) Its dominant tendency is to appeal to scatological interest by displaying or depicting human bodily functions of elimination in a way that inspires disgust or revulsion in persons with ordinary sensibilities, without serving any genuine scientific, educational, sociological, moral, or artistic purpose;

(5) It contains a series of displays or descriptions of sexual activity, masturbation, sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient or scatological interest, when the appeal to such an interest is primarily for its own sake or for commercial exploitation, rather than primarily for a genuine scientific, educational, sociological, moral, or artistic purpose.

What You Should Do if You Have Been Charged or if You Are Being Investigated

Allegations of sex crimes are extremely serious. The allegation of a sex crime can change the accused person's life forever. Being charged with a sex crime can take a damaging toll not only on the accused but the accused's family members and friends.

If you or a loved one has been charged with a sex crime in the Cincinnati or southern Ohio area, it is imperative that you contact a skilled and experienced attorney before speaking with any detective or investigating officer about the accusations. The criminal defense attorneys at Rittgers & Rittgers have over 100 years of combined legal experience fighting for the rights of those accused of such crimes and are eager to help. Here are some of our representative cases in criminal defense.

To schedule a free and confidential consultation to discuss your case, contact criminal defense lawyers immediately at Rittgers & Rittgers at 513-932-2115.