Gal answers question about obscenity laws

Q. What are the laws concerning strippers?

A. A lot of rumors have circulated since an alleged incident at a local private club involving a stripper. We’ve fielded lots of calls as to why no legal action has been taken and what the applicable laws are. And the truth is, there’s no easy answer.

The first person I contacted was city attorney Bob Myers. (And boy was it awkward when the secretary asked me what the call was in regards to.) Myers said there are many legal nuances of this issue, but he figured people really just want to know “Is it legal for someone to have an event in Newton that involves strippers?” His answer? “It depends.”

Myers said there are two aspects to this question.

“The first has to do with business activities, which involve the providing of so-called “adult” products or entertainment. A one-shot instance of this probably doesn’t cause a business to fall under the sexually oriented business regulations,” he said. “But if this is going to occur with any frequency or regularity, then the regulations would apply. If the regulations apply, this means they would have to have a special license, they would have to operate within the scope of some very detailed regulations, plus they would be subject to location restrictions, which specify where such a business can and cannot be located within the community.”

The second aspect is what can and can’t happen at an “adult entertainment” event. Those at a licensed sexually oriented business would be regulated and restricted, but those outside of such a label would fall under state obscenity statues, Myers said, and recommended I contact county attorney David Yoder about obscenity statutes.

So I did. And Yoder said the problem with obscenity statutes is they are not clearly defined. He said the Supreme Court “has struggled to define” what exactly constitutes obscenity. He directed me to a couple of Kansas statutes.

The first is the criminal statute that prohibits promoting obscenity (statute 21-4301). You can go online to www.kslegislature.org and enter the statute number to pull up the statute in its entirety. (Parts of it use language I’m not comfortable printing here.) But to sum up: You can’t manufacture, possession, offer, produce, etc., something labeled obscene. There’s also a prohibition against “producing, presenting or directing an obscene performance or participating in a portion thereof which is obscene or which contributes to its obscenity. What’s obscene? Something “the average person applying contemporary community standards” would find appeals to the “prurient” interest” or has “patently offensive representations or descriptions” of several sexually related activities, and it has to lack redemptive merit, such as literary, educational, artistic, political or scientific value.

The first violation of this statute would be a class A misdemeanor, with up to a year in jail and a fine of up to $2,500. A second or subsequent offense would be a level 9 felony with a prison sentence of between five and 17 months.

The second related statute is a civil statute relating to common nuisances, which dub certain “unlawful activities” and the “use of real or personal property in maintaining and carrying on such activities” as common nuisances. One of those is promoting obscenity.

Overwhelmed yet? Yoder said with obscenity, certain issues, such as graphic magazines, are “a lot easier to tell” when they cross the gray obscenity line. But performances can be more difficult to judge, he said. He said a lot of it has to do with whether those seeing it think it’s obscene. And is it just those who see it or is it everyone in the community?

With the criminal statute, Yoder said the target of prosecution would be an individual or individuals; the statute doesn’t cover an organization or entity. With the nuisance statute, an organization could be closed or even the eviction of a private residence could result.

A prosecutor would have to prove to a jury it’s obscene, and the entire jury would have to agree. And Yoder said there’s always the issue of proof.

While he said he hasn’t gone through the case law on this point, he said it is possible “a single violation could activate” the common nuisance statute. However, he said generally such statutes apply when there is an ongoing pattern, and the more supposed violations, the stronger the case.

He said any person or organization who engages in such activities “run the severe risk of running contrary of statutes,” but with a single incident, it’s “a lot more difficult” to prove and prosecute. But anyone who “dances around the obscenity statutes is risking the possibility of criminal and civil responsibility,” he said. Not to mention, he said, it’s “really bad PR” for an organization or group to host such an event.

And that’s all I have to say about that. Toodles y’all.