Obscenity, in its simplest form, is material or a performance that is sexually explicit, offensive by community standards, and lacks serious value in literature, art, politics, or science. Facing charges for obscenity in Texas can lead to severe consequences, including hefty fines and imprisonment. 

When facing obscenity charges in Texas, it should be your main priority to retain a sex crime lawyer. At Cofer & Connelly, PLLC, our team of sex crime attorneys possesses the experience required to effectively defend clients in obscenity cases. Feel free to reach out to Cofer & Connelly, PLLC, by calling (512) 991-0576 or contacting us online to arrange a consultation with an Austin obscenity lawyer.

Texas Law on Obscenity

First, according to Texas Statutes Section 43.21, something is considered obscene if it meets three criteria:

1. An average person, using current community standards, would find that the material, in its entirety, appeals primarily to an interest in sex.
2. It shows or describes sexual conduct in a way that is clearly offensive. This includes detailed portrayals of sexual acts, whether they are normal or abnormal, actual or simulated, as well as depictions of masturbation, bodily waste functions, sadism, masochism, lewd exhibition of genitals, and devices intended mainly for sexual stimulation.
3. 3) The material, taken as a whole, does not have serious artistic, scientific, literary, or political value.

Relatedly, under Texas Statutes Section 43.22, the offense of obscene display or distribution occurs when someone knowingly or intentionally distributes or displays an obscene drawing, photograph, visual representation, or any other obscene material. To commit this offense, the individual must also be reckless about whether someone present might be offended or alarmed by this display or distribution. This means the person showing or distributing the material does not necessarily intend to offend someone, but they are aware of and disregard the risk that it might happen. A prosecutor must prove these elements—intentional or knowing display or distribution of obscene material, and recklessness regarding its potential to offend or alarm others—to secure a conviction.

What is Needed for an Obscenity Conviction?

For a prosecutor to successfully convict someone under Texas Statutes Section 43.23, they must prove certain elements. First, that the person knowingly promoted or possessed with the intent to promote any obscene material or device. This includes manufacturing, distributing, selling, or presenting this material. Also, if someone is in the business of dealing with this type of material, they are presumed to know its content. Additionally, possessing six or more obscene materials is presumed as an intent to promote them.

It’s also important to note that the law makes a more severe distinction if the obscene material visually depicts certain activities involving a child or what appears to be a child. If this is the case, the punishment for the offense can be more severe.

So, in Texas, to prove obscenity, it must be shown that the material appeals to a prurient interest in sex, offensively depicts or describes sexual conduct, and lacks serious value in literature, art, politics, or science. The person must have been aware of the material's nature, and the intent to promote or distribute it must be established.

Penalties for Obscenity

In Texas, the penalties for obscenity vary based on the classification of the offense.

Class A Misdemeanor

If you promote (or possess with intent to promote) any obscene material, produce or direct an obscene performance, or participate in a portion of it that is obscene or contributes to its obscenity, the offense is considered a Class A misdemeanor. The penalty is up to 1 year in jail and a $4,000 fine.

Class C Misdemeanor

For the specific offense of obscene display or distribution, which is a Class C misdemeanor, the penalty is a fine of up to $500. There is no jail time associated with this level of misdemeanor.

State Jail Felony

If you promote (or possess with intent to promote) any obscene material on a larger scale, it's classified as a state jail felony. Potential punishment is 180 days to 2 years in a state jail and a fine of up to $10,000.

Second Degree Felony

There's an increased severity in the penalty if the obscene material involves a minor. Specifically, if the material visually depicts activities involving a child under 18, an image virtually indistinguishable from that of a child under 18, or an image created to appear as a child under 18, the offense is elevated to a second degree felony. This entails a prison term of 2-20 years and a $10,000 fine, as well as the requirement to register as a sex offender.

For lower-level offenses, alternatives to incarceration might be possible. These can include probation, community service, and educational or rehabilitation programs. The availability of these alternatives often depends on the nature of the offense, your criminal history, and other factors considered by the court.

Potential Defenses to Obscenity Charges

One key defense to obscenity charges is demonstrating the material or device in question was for a legitimate purpose. This is known as an "affirmative defense," which means you acknowledge the facts of the case but assert reasons why these actions should not be considered criminal. Specifically, if you can prove that the possession or promotion of the alleged obscene material or device was for a bona fide psychiatric, medical, legislative, judicial, or law enforcement purpose, this can be a valid defense. For instance, if you're a healthcare professional and the material is used for educational purposes, this might be a viable defense.

Another possible defense involves challenging the nature of the material itself. Since obscenity is partly defined by whether the average person, applying contemporary community standards, would find the material appeals to an indecent interest in sex, is patently offensive, and lacks serious value (artistic, scientific, literary, or political), you can argue that the material does not meet these criteria. For example, if the material is a recognized work of art or has significant scientific value, this could be a strong defense.

Role of an Obscenity Lawyer in Austin, TX

If you're charged with an obscenity offense, an obscenity lawyer plays an important role in your defense. They are your advocate and guide through the legal process. Their job is to know the obscenity laws inside and out and to apply this knowledge to your case. They will examine the evidence against you, look for any procedural errors or violations of your rights, and develop a defense strategy.

An obscenity lawyer will also represent you in court, arguing on your behalf and challenging the prosecution's case. They can negotiate with prosecutors, possibly reducing charges or penalties, and ensure that your side of the story is heard. Additionally, they can handle all legal filings and procedural matters, keeping you informed and involved in your defense every step of the way.

In essence, an obscenity lawyer is there to protect your rights and to work towards the best possible outcome in your case. They offer legal guidance in a situation that can be both complex and stressful.

Frequently Asked Questions about Obscenity

• What is considered obscene material in Texas?
  Obscene material includes explicit sexual content that is offensive and lacks serious artistic or scientific value.
• How does Texas law define "promotion" of obscene material?
  Promotion involves activities like selling, distributing, or exhibiting obscene material.
• Is there any legal defense for possessing obscene material?
  Yes, if the material is for legitimate medical, judicial, psychiatric, legislative, or law enforcement purposes.
• Does the context of possessing the obscene material matter?
  Yes, the context, such as educational or medical use, can be a significant factor in your defense.
• Are there enhanced penalties if the material involves minors?
  Yes, penalties are more severe if the material depicts minors in sexual activities.
• What role does community standard play in determining obscenity?
  Community standards influence what is considered offensive or lacking serious value.
• What should I do if charged with an obscenity offense in Texas?
  Seek legal advice from an experienced obscenity lawyer to understand your rights and defense options.

Austin Obscenity Attorney

If you're facing obscenity charges in Texas, it's essential to have experienced legal representation. At Cofer & Connelly, PLLC, our team of sex crime attorneys is experienced in defending clients in obscenity cases. Don't face these charges alone. Contact Cofer & Connelly, PLLC by calling (512) 991-0576 or contacting us online for a consultation with an obscenity lawyer in Austin. We're committed to providing you with the support and defense you need.