Explicit, or obscene, material is any video, audio, or written communication depicting sexual conduct. Not all such depictions are considered obscene. A three-prong test is applied to determine whether something is an obscenity. The analysis assesses whether the material appeals to prurient interests, depicts sexual conduct in an offensive way, and lacks value.
The state and federal governments have laws prohibiting the transfer of obscene images to minors. Which has jurisdiction depends on how the depiction was sent to the child. Either way, the punishments for a conviction are harsh and include prison time and fines.
If you have been charged with a serious offense in Miami, schedule a consultation with a member of the Hager & Schwartz, P.A. team by calling (305) 330-1360 or submitting an online contact form today.
What’s Considered Explicit Material?
Various visual, spoken, or written materials may be considered explicit, or obscene.
These can include:
- Books,
- Magazines,
- Periodicals,
- Newspapers,
- Comic books,
- Drawings,
- Photographs,
- Movies,
- Images,
- Videos, or
- Audio recordings.
A court will use a three-prong approach to determine whether a depiction is an obscenity.
The approach, also known as the Miller test (named after the U.S. Supreme Court case Miller v. California (1973)), assesses materials based on the following:
- Appeal to prurient interest: The question here is whether an average person, considering current societal standards, would believe that the depiction gratifies an unhealthy, abnormal, or morbid interest in sex.
- Offensive depiction: The material would be considered offensive if it contained representations of sexual conduct that were offensive according to current standards. Sexual conduct includes:
- Sexual intercourse,
- Masturbation,
- Excretory functions,
- Lewd exposure of the genitals, buttocks, or female breast,
- Contact with a person’s genitals, buttocks, or female breast,
- Sado-masochistic sexual abuse, and
- Sexual battery.
- Lacks value: The depiction has no literary, artistic, political, or scientific significance.
The definition of obscenity varies for adults and minors. What may be considered acceptable for adults to view, hear, or read, may be harmful to children. Thus, standards used when applying the three-prong test will differ between cases involving adults or minors.
State and Federal Laws Prohibiting Sending Explicit Materials to Minors
Most states and the federal government have laws prohibiting individuals from sending obscene material to minors. The statutes are to protect children from being exposed to anything that could be harmful to them.
Florida Statutes § 847.0133 states that it is unlawful for a person to distribute obscene material to someone under 18 years of age. The actor must have known that the matter was explicit and that the person they sent it to was a minor. It’s not a defense that the actor was unaware of the minor’s age, that the minor lied about how old they were, or that the minor consented to receive the materials.
The federal government has a few laws making it illegal to send explicit material to a minor. Under 18 U.S.C. § 1470, an individual commits an offense when they use the internet, mail, or other means affecting interstate or foreign commerce to transfer obscenity to a minor.
According to 18 U.S.C. § 2252B, a person cannot use a misleading domain name to trick a minor into visiting a site containing obscenities. Similarly, 18 U.S.C. § 2252C prohibits individuals from using words or images on a site to cause a minor to view explicit material.
The Penalties for Exposing Minors to Harmful Material
Under state and federal laws, sending explicit depictions to children is a felony.
In Florida, distributing harmful materials to a minor is a third-degree felony, punishable by up to 5 years in prison and/or a fine of up to $5,000.
The potential penalties under federal statutes include the following:
- Transferring obscene material to minors:
- Up to 10 years in prison and/or
- A fine
- Using misleading domain names:
- Up to 10 years in prison and/or
- A fine
- Using misleading words or images:
- Up to 20 years in prison and/or
- A fine
Get Started on Your Defense
At Hager & Schwartz, P.A., we stand up for those accused of state or federal crimes. Our Miami lawyers approach each case strategically, working tirelessly to develop a personalized defense for our clients.
To speak with us about your case, please call (305) 330-1360 or contact us online today.
