Surfing cable is not "exhibiting harmful matter to a minor"

The California Court of Appeals recently overturned a conviction for "exhibiting harmful material to a minor," also known as "showing kids dirty pictures." The court ruled that there was insufficient evidence that the television segments involved fit the statutory definition.

Cable is not a crime. Shaun Martin at the California Appellate Report has this assessment of the case:

(1) As a preliminary matter, it's not okay to touch a 16-year old sophomore. Particularly when she's the friend of your daughter. I think David Dyke knows that now, and knew it then as well. So if you're convicted of misdemeanor sexual battery (as David was here in Count II), that's fair.

(2) More relevant to this appeal, however -- and to most of us law-abiding citizens as well-- it's not illegal to be flipping through channels on the television and stumble across an NBC, HBO, or (even) Cinimax program. Even if a 16-year old is present. And even if you (allegedly) linger on a fake sex scene -- e.g., your typical broadcast "waist up, lots of grunting" shot) longer than you should given the audience. That's what's on television nowadays. It's not obscene. And it does not count as illegally "exhibiting harmful material to a minor," for which David was convicted in Count One. Watching regular television simply isn't a crime. Even if it's "Leaving Las Vegas," "American Beauty," or (to your eternal regret) "Showgirls"....

The court noted that there was no way to tell from the sketchy descriptions of the TV segments involved whether, under the terms of the statute, the allegedly "harmful matter" lacked "serious value":

Was the dance by the unclothed female lurid, artistic, or even a cultural or tribal dance? There is no way to know and no reasonable basis for inferring that it lacked such value. As to the 45-second glimpse of the couple presumably having sexual intercourse, was the clip part of a tawdry adult film, a former Academy Award winner being shown on television that night, or even a brief scene from Shakespeare‘s Romeo and Juliet.

Should "exhibiting harmful matter to a minor" be criminal? Although overturning the conviction in this case, the appeals panel made clear that they saw no constitutional or policy problem with the law, and in fact, went out of their way to suggest that the law could and should be drafted more broadly, so as to capture cases like this one. Specifically, they noted that the legislature had narrowed the definition of "harmful matter" in 1988 so that it essentially tracked the Supreme Court's definition of obscenity. The judges suggested, though, that the First Amendment does not require a statute like this to be so narrow, because the statute also required that the exhibiting must be done "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor." The court said this was a case of "mixed speech and expression," and so it would be permissible to reach a broader category of otherwise-protected speech. The court said it "would encourage the Legislature to revisit this issue, given the potential consequences of so narrowly defining harmful matter when it is used to groom young victims for acts of molestation."

I understand the rationale here: it is not the mere exposure of minors to racy material that is punished, but the use of the material to facilitate abuse. But I'm not sure whether it is either necessary or wise as a matter of policy. Not sure whether it's necessary, because there are any number of other things a person might do to "groom young victims for acts of molestation" other than show them pornography -- engage in sexual talk with them, for example, or give them alcohol, or do any number of other things to curry affection and normalize inappropriate intimacy -- and we don't separately criminalize them. Not sure whether it's wise, because the intent factor fails to set clear, objective boundaries on when prosecution is appropriate. Public screenings are clearly exempted, but in any one-on-one interaction there exists the possibility of unintended but untoward appearances. It is at least reassuring, however, that the California Court of Appeals has previously interpreted this law to require a specific intent to entice the minor into physical sexual contact with the defendant, as opposed to encouraging the minor to, e.g., masturbate alone. People v. Jensen, 114 Cal.App. 4th 224 (App. 6 Dist. 2003).

Who cares? Prof. Shaun had these closing thoughts on People v. Dyke:

The fact that the trial court let this count go forward, and that the jury convicted on it, says some pretty damning stuff about the judicial system here. I get the keen sense that this happens not because of some neutral assessment of whether it's in fact illegal to watch television alongside a 16-year old, but rather because we don't like what the defendant allegedly did here and are eager to punish him however we can.

This blog frequently addresses criminal cases in which the defendant clearly committed one or more serious crimes. In such cases, prosecutors regularly reach out for anything in the book to increase the sentence, increase their plea-bargaining leverage, and/or provide a fall-back charge. Not infrequently, they find a statute, or (as here) advance an interpretation of a statute, that could also apply to a significant swath of innocent conduct. I blog on these cases for three reasons: 1) such prosecutorial practices are a misuse of law and the justice system, in violation of the spirit (if not the letter) of the Double Jeopardy Clause; 2) criminal cases involving obvious "bad guys" are one of, if not the most common context in which courts consider potentially inflammatory sex-related topics, such as pornography and BDSM, and provide a window into judges' thinking (and prejudices) about these issues; and 3) the American experience with sodomy laws teaches us that the fact that a law is only ever used to prosecute truly culpable persons doesn't mean that it can't have other harmful effects.