Obscenity
Considered to be one of the State of Texas’s more controversial laws, Section 43.23 describes the crime of obscenity. The offense can be separated into two different categories. Obscenity crimes where an individual wholesale promotes or possesses with intent to wholesale promote any “obscene material” or “obscene device,” is one. The other is obscenity crimes where an individual produced, presented, or directed an obscene performance or participated in a portion of such material/performance that contributes to its obscenity.
Many legislators and people who oppose obscenity laws state it goes against free speech. Most importantly the provisions that state being “patently offensive” is against the law. However, people are still prosecuted for this crime and face massive penalties because of it. If you or someone you know has been arrested for obscenity, contact an experienced defense lawyer.
Austin Obscenity Defense Attorney | Jackson Gorski
If the state has charged you with a violation of Section 43.23 of the Penal Code, call The Law Office of Jackson F. Gorski. You will need legal representation as soon as possible so you can start mounting a defense against the prosecution’s argument. A skilled lawyer like Gorski can contest the charges and utilize various constitutional defenses such as the right to exercise free speech. To learn your legal options and get answers to your burning questions, call The Law Office of Jackson F. Gorski today.
Schedule your first consultation with The Law Office of Jackson F. Gorski by calling our offices at 512-960-4646 or submit an online consultation form. The Law Office of Jackson F. Gorski has offices in both Austin and Georgetown and accepts clients in various counties throughout the State of Texas including Travis County, Williamson County, Bastrop County, Bell County, Blanco County, Hays County, Caldwell County, and Lee County.
Information Center:
- Definition of Obscenity in Texas
- Penalties for Obscenity in Texas
- Presumption for Obscenity Laws
- Additional Resources
Definition of Obscenity in Texas
Although obscenity is a non-violent crime without any victims, it carries significant penalties. The Penal Code Section 43.23 states an individual is guilty of obscenity, if knowing the content and the character of said material, wholesale promotes or possesses with intent to wholesale promote any obscene material or device. In addition, the statute states a person commits an offense if they produce, present, or direct an obscene performance or participate in a portion of the material that is also considered to be obscenity or contributes to the obscenity.
In order to be charged, the defendant must display or distribute the material in a reckless manner. Reckless means that the defendant did not display care of whether the person presented with the material would be offended or alarmed by this display or distribution. Please note, the term “obscene device” is defined as any device marketed or designed as useful primarily for the stimulation of human sexual desires. Some examples include sex toys such as dildos.
Penalties for Obscenity in Texas
Since 1993, the State of Texas has imposed harsh penalties on those convicted of obscenity. Any person who commits the offense by wholesale promoting or possessing with intent to wholesale promote any obscene material or device will face a state jail felony. The maximum sentence a person can face for a state jail felony includes:
- Up to two years in jail
- A fine of up to $10,000
Any person who does the following will face a class A misdemeanor.
- Promotes or possesses with intent to promote any obscene material or device
- Presents, produces, or directs an obscene performance or participates in a portion of material that is considered obscene or elevates the obscene nature of the content
A class A misdemeanor carries the following maximum sentence:
- Up to 12 months in jail
- A fine of up to $4,000
The punishment for the crime will be enhanced to a second-degree felony if it is proven at trial the obscene material included the following material:
- A child younger than the age of 18
- The image to a reasonable prudent person would be virtually indistinguishable from the image of a child younger than the age of 18
- The image adapted, modified or created to be the image of an identifiable child
Please note, an “identifiable child” is any person that is recognizable as an actual person by their face, likeness or any other distinguishing characteristic. The prosecutor does not have to identify this child in order to enhance the penalties for the defendant.
The maximum sentence a person may face upon conviction for a second-degree felony includes the following:
- Up to 20 years in prison
- A fine of up to $10,000
Presumptions Under the Obscenity Texas
The statute for obscenity has multiple presumptions for the prosecution to work off of. The first presumption under the Obscenity statute provides that a person who promotes or wholesale promotes obscene material or devices or possess them with the intent to promote or wholesale promote them in the course of business is presumed to do so with the knowledge of their content and character.
The second presumption under Section 43.23 provides that a person who possess six or more obscene devices is presumed to possess them with the intent to promote them eventually. Take note, the offense will not apply to those who possess obscene material or devices if the possession, participation, or conduct occurs during the course of activities triggered by law enforcement.
Additional Resources
Texas Obscenity Laws – Visit the official website for the Texas Penal Code to read Section 43.23, which details the elements and penalties for obscenity crimes in the State. Access the site to read the penalties for the crime, learn the elements, and possible enhancements.
SMU Scholar Articles | Changing Standards of Obscenity in Texas — Visit the official website for SMU Scholar to read the full article of the 1980 article titled “Changing Standards of Obscenity in Texas” by Dan Rosen. Access the article to learn more about the definitional problem with obscenity offenses, as well as the changing definitions of obscenity in Texas.
Although your reading of this website doesn’t constitute the formation of an attorney-client relationship, I will tell you that you should avoid discussing your case with friends, family, social media applications, and prosecutors without the legal guidance of an experienced defense lawyer.
