Sunnydale Recycling

Oklahoma - Okay! (not so much)

Nov 17 at 5:05pm by wilkins

[singlepic=1,320,240,,left] Tony Comstock has an interesting piece about, among other things, Oklahoma anti-pornography statutes:

Many of the people who I spoke with were professors who taught sexually or researched aspects of sexuality in a university setting, and several of them were interested in our films, either for use in their classrooms, or in their experiments. This included a professor from an Oklahoma university, who himself was at the conference to present a paper on BDSM. “I’d really love to use your films in my class, but penetration is illegal in Oklahoma.” This is the second time in a month that I’ve heard this. The first time was last month at a trade-show in Las Vegas. A woman who owns a lingerie shop was at our booth, delighted by what she saw. “Do your films have penetration?” she asked. “Of course they do. Our films are about sex.” “Oh, then I can’t carry them. Penetration is illegal in Oklahoma. If you stick your tongue in someone’s ear and it’s sexual, it’s illegal in Oklahoma.” Of course this is nonsense. Legislators in Oklahoma can no more outlaw the photographic depiction of sexual penetration than they can outlaw the photographic depiction of blue shirts. Yet apparently they have. There is variety of expression not seen as worthy of First Amendment protection – obscenity. Throughout the Twentieth Century, what is and is not obscenity has been the subject of a number of Supreme Court decisions, the last being the 1973 case of Miller v. California. With regard to what sort of sexually explicit expression is not protected by the First Amendment, Miller v. California ((http://www.oyez.org/cases/1970-1979/1971/1971_70_73/; Wikipedia entry here)) is the law of the land, and defines obscenity by a three-pronged test. A work is considered obscene, and therefore may be suppressed by the government if: The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest And The work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law. And The work, taken as a whole, lacks serious literary, artistic, political, and scientific value. What that means is that if a jury decides the answer to any one of these three questions is “no”, then the work is not obscene, and if it’s not obscene than the state of Oklahoma has no power to suppress the distribution of the work. In theory. In practice, the threat of an obscenity prosecution is enough to prevent work from being seen, even films recently described as, “Perhaps the most cinematic and pro-social depictions of sexual behavior ever produced.” (You gotta love how sex scientists talk!) The simple fact is that the Oklahoma professor I talked to this weekend is afraid that if he uses our films in his classroom, he’ll go to jail. The Oklahoma shopkeeper we talked to is afraid that if she offers our films to her customers she’ll go to jail. And that fear is enough to keep people from seeing our films in the Sooner State.

Tony Comstock’s Blog: When Penetration is Illegal in Oklahoma, Oklahomans Get Fucked

I’ve been looking through Oklahoma statutes - and haven’t found the relevant “penetration” provision. But here are provisions which are a bit disturbing:

Oklahoma Statutes, Title 21, Crimes and Punishments, §21-1024.1. Definitions

[(A) defines child pornography (B) essentially recites the Miller test, with a few details to make it even easier for prosecutors]

B. As used in Sections 1021 through 1024.4 and Sections 1040.8 through 1040.24 of this title:

1. “Obscene material” means and includes any representation, performance, depiction or description of sexual conduct, whether in any form or medium including still photographs, undeveloped photographs, motion pictures, undeveloped film, videotape, CD-ROM, magnetic disk memory, magnetic tape memory or a purely photographic product or a reproduction of such product in any book, pamphlet, magazine, or other publication, if said items contain the following elements:

a. depictions or descriptions of sexual conduct which are patently offensive as found by the average person applying contemporary community standards,

b. taken as a whole, have as the dominant theme an appeal to prurient interest in sex as found by the average person applying contemporary community standards, and

c. a reasonable person would find the material or performance taken as a whole lacks serious literary, artistic, educational, political, or scientific purposes or value.

The standard for obscenity applied in this section shall not apply to child pornography;

2. “Performance” means and includes any display, live or recorded, in any form or medium;

3. “Sexual conduct” means and includes any of the following:

a. acts of sexual intercourse including any intercourse which is normal or perverted, actual or simulated,

b. acts of deviate sexual conduct, including oral and anal sodomy,

c. acts of masturbation,

d. acts of sadomasochistic abuse including but not limited to:

(1) flagellation or torture by or upon any person who is nude or clad in undergarments or in a costume which is of a revealing nature, or

(2) the condition of being fettered, bound, or otherwise physically restrained on the part of one who is nude or so clothed,

e. acts of excretion in a sexual context, or

f. acts of exhibiting human genitals or pubic areas ….

Particularly disturbing is (B) (4), which essentially makes defines child pornography as that which a police officers reacts to as child pornography: From Oklahoma Statutes, Article 21, §1024.1 (B)(4):

“Explicit child pornography” means material which a law enforcement officer can immediately identify upon first viewing without hesitation as child pornography.

In other words - if the government says it’s bad -it’s bad.

The notion of “penetration” as the test - which two reasonable people described to Tony Comstock - sounds like a layperson’s distillation of cautious legal advice in this sort of environment: don’t.

An obvious constitutional problem with Miller is this: by definition, a “community standard” allows a majority to decide what’s acceptable for minorities - this sort of system lets majorities - or powerful minorities - make cultural choices for the rest of the population - with liberty and rights of citizenship at risk.

Oklahoma lyrics (Rodgers & Hammerstein) here.