Obscenity is not protected speech. It is, in fact, both a federal crime and a state crime. But obscenity is not easily identified – there's no clear cut line that divides the obscene from the non-obscene. Specific evidence is required. So, if you have been charged with an obscenity offense, you need an experienced criminal defense attorney in the Chicago metro area who understands this area of law well. These cases can be highly technical, unpredictable, and complex.
At Dolci & Weiland, our criminal defense lawyers represent clients throughout DuPage and Cook Counties. We know this area of law and have specific experience with it and related sex crimes that often accompany an obscenity charge. Here's what you should know about Illinois' obscenity law if you have been charged.
What is Illinois' obscenity offense?
The state crime of obscenity is governed by 720 ILCS 5/11-20. A person commits this offense when he or she either (1) knows the nature or content; or (2) recklessly fails to exercise reasonable inspection of the material, the act of which would have disclosed the obscenity; and also:
(1) Sells, delivers or provides, or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or
(2) Presents or directs an obscene play, dance or other performance or participates directly in that portion thereof which makes it obscene; or
(3) Publishes, exhibits or otherwise makes available anything obscene; or
(4) Performs an obscene act or otherwise presents an obscene exhibition of his or her body for gain; or
(5) Creates, buys, procures or possesses obscene matter or material with intent to disseminate it in violation of this Section, or of the penal laws or regulations of any other jurisdiction; or
(6) Advertises or otherwise promotes the sale of material represented or held out by him or her to be obscene, whether or not it is obscene.
What does "obscene" mean according to Illinois law?
Material or performance is considered obscene when:
- the average person finds the material as a whole appealing to the prurient interest; and
- the average person finds the material depicts in a patently offensive way ultimate sexual acts or sadomasochistic sexual acts, whether:
- normal or perverted;
- actual or simulated;
- excretory functions; or
- lewd exhibition of the genitals; and
- political; or
- scientific value.
All three of these elements must be present; absent one element means the crime of obscenity was not committed.
For example, you could have been charged for obscenity due to a set of photographs you produced. These photographs could have contained sexual content that appealed to the average person's prurient interests (element 1) and depicted sex acts that were patently offensive (element 2) but possessed serious artistic value when taken as a whole.
Based on the facts and an adult community standard, the jury finds whether or not elements 1 and 2 are satisfied. Based on the facts and the reasonable person standard, the jury decides whether as a whole, alleged obscene material lacks or possesses serious literary, artistic, political, or scientific value. To note, the community standard is more subjective while the reasonable person standard is more objective.
What does the prosecutor need to prove an obscenity offense in DuPage or Cook County?
The prosecutor must be able to prove the above three described elements of an obscenity charge. Nudity alone is not sufficient to make material or a performance obscene. Often expert testimony is admitted by the State to prove the community standard of what's obscene and not obscene.
What are the penalties for a conviction of obscenity in Illinois?
- up to one year in jail and a fine of up to $2,500 if a Class A misdemeanor; or
- up to three years but a minimum of one year in prison and a fine of up to $25,000.
If you are convicted of this offense for a second or subsequent time, you can also be subjected to forfeiture of property. Property that can be seized include:
- land; and
- other high-value assets.
In Illinois, the law enforcement agencies conducting most of these seizures include the Illinois State Police, the Cook County Sheriff's Office, and the Chicago Police Department.
Are there any defenses to an obscenity charge in Illinois?
The statute governing the offense of obscenity outlines specific affirmative defenses. Absent an affirmative defense, your experienced Dolci & Weiland criminal defense attorney will develop a defense strategy that incorporates challenges to the State's evidence and will file motions to exclude or suppress evidence based on any Fourth Amendment violations (e.g., lack of reasonable suspicion or probable cause, improper search and seizure).
- The obscenity was disseminated not for gain but was meant only for personal associates, which did not include children under the age of 18.
- The obscenity was disseminated to institution or individuals for scientific or another justifiable purpose.
The key to remember about an obscenity charge is this: you are innocent until proven guilty beyond a reasonable doubt. You can expect your Dolci & Weiland criminal defense attorney to challenge the State, poke holes in its evidence, and attempt to create the doubt necessary to turn a verdict in your favor.
Contact an Experienced Obscenity Defense Attorney in Chicago
A charge of obscenity requires a defense that is both smart and aggressive. At Dolci & Weiland, our criminal defense lawyers are skilled and resourceful with only one goal in mind: to return the best outcome possible in your specific case. Contact us today to discuss the specifics of your obscenity charge.
We will review and investigate your case and explore your options. Each step of the way, we will keep you informed and consult with you about the strategy and status of your case. Contact Dolci & Weiland today to schedule a consultation.