Obscene Materials - Florida Statute 847.011

sex offenses

In today’s porn culture where the magazine racks at the grocery store would have been considered porn not that many decades ago, one wonders what would be obscene in today’s culture? Obscenity is really things that the culture finds reprehensible. There is a constant back and forth between people saying this is criminal and others saying their material is protected under the First Amendment.

Here are a few examples:

  • Simulated rape;
  • Simulated pedophilia;
  • Child pornography;
  • Bestiality; or
  • Poop/pee related sexual activity.

Florida Statute 847.011 makes it illegal in almost every way to be associated with obscene materials. It is illegal to possess, sell, lend, give away, transmit, show, or advertise any obscene material.

What the State Prosecutor Has to Prove to Convict a Defendant

The state prosecutor has to prove beyond a reasonable doubt:

(1) The defendant had in his or her possession, custody or control with the intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise the material charged in this case;

(2) The material charged in this case is obscene, which means the follow elements must be found:

  1. The average person applying contemporary community standards of __________ County, Florida, would find that the material, taken as a whole, appeals to the prurient interest;
  2. The material depicts or describes sexual conduct in a patently offensive way;
  3. The material, taken as a whole, lacks serious literary, artistic, political, or scientific value; and

(3) The defendant had knowledge of the nature, character, or content of the materials.

"[P]rurient interest" in sex is a shameful or morbid interest in sex, nudity, or excretion. Material does not appeal to a prurient interest if the average person today can view the material candidly, openly, and with a normal interest in sex.

Defenses

Our attorneys will investigate to see if the method and means the police used to find the material was consistent with the Fourth Amendment; otherwise, the evidence will be suppressed. Questions we will be asking:

  • Did the police have a warrant?
  • Was there a lawful arrest?
  • Were there any other warrant exceptions that allowed the police to be where they were?
  • Was the material in plain view or open view?
Punishment

The crime is a third-degree felony which is punishable up to 5 years in prison and a $5,000 fine. This crime is ranked as a level 1 crime under the Florida Criminal Punishment Code.

Contact the Law Office of Roger P. Foley, P.A.

If you have been arrested and charged with this crime, call our law offices today so we can schedule a free consultation. We want to talk to you about your version of the events. It is important for you tell us everything so we can help create a defense strategy for you. We will take depositions of the police officers involved and any witnesses. From that evidence we will further refine your defense. We will try to persuade the prosecutor to drop your case. If the prosecutor is not persuaded, we can take the case all the way to trial.

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