1143. Obscene Live Conduct

The defendant is charged [in Count ______] with (engaging or participating in[,]/ [or] managing[,]/ [or] producing[,]/ [or] sponsoring[,]/ [or] presenting or showing) obscene live conduct.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant (engaged or participated in[,]/ [or] managed[,]/ [or] produced[,]/ [or] sponsored[,]/ [or] presented or showed) obscene live conduct;

2. The defendant knew of the character of the conduct;

AND

3. The obscene live conduct occurred in front of an audience of at least one person in (a public place/ [or] a place open to the public[, or a segment of the public,] or to public view).

Live conduct means physical activity by a person acting alone or with someone else[, including but not limited to (dancing[,]/ [or] acting[,]/ [or] simulating[,]/ [or] pantomiming[,]/ [or] singing[,]/ [or] speaking)].

You must decide whether the conduct at issue in this case meets the definition of obscene live conduct. Live conduct, when considered as a whole, is obscene if:

1. It shows or describes sexual conduct in an obviously offensive way;

2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value;

AND

3. An average adult person applying contemporary statewide standards would conclude it appeals to a prurient interest.

A prurient interest is a shameful or morbid interest in nudity, sex, or excretion.

Applying contemporary statewide standards means using present-day standards and determining the effect of the conduct on all those whom it is likely to reach within the state, in other words, its impact on the average adult person in the statewide community. The average adult person is a hypothetical person who represents the entire community, including both men and women, religious and nonreligious people, and adults of varying ages, educational and economic levels, races, ethnicities, and points of view. The term contemporary statewide standards means what is acceptable to the statewide community as a whole, not what some person or persons may believe the community should accept. The test you must apply is not what you find offensive based on your own personal, social, or moral views. Instead, you must make an objective determination of what would offend the statewide community as a whole.

[You may consider evidence of local community standards in deciding what the contemporary statewide standards are. However, you may not use the standards of a specific local community, by themselves, to establish the contemporary statewide standards.]

The conduct is not obscene unless a reasonable person would conclude that, taken as a whole, it lacks serious literary, artistic, political, or scientific value. When deciding whether the conduct is obscene, do not weigh the value of the conduct against its prurient appeal.

[The depiction of nudity, by itself, does not make conduct obscene. In order for conduct involving nudity to be obscene, it must depict sexual activity and must meet the requirements for obscenity listed above.]

[The depiction of sexual activity, by itself, does not make conduct obscene. In order for conduct depicting sexual activity to be obscene, it must meet the requirements for obscenity listed above.]

The People must prove that the defendant knew the character of the conduct but do not need to prove that the defendant knew whether the conduct met the definition of obscene.

[A person accused of committing this crime can be an individual, partnership, firm, association, corporation, limited liability company, or other legal entity.]

[In deciding the conduct's character and whether it lacks serious literary, artistic, political, or scientific value, consider whether the circumstances of its (production[,]/ [or] presentation[,]/ [or] advertising[,]/ [or] showing) indicate that the conduct was being commercially exploited because of its prurient appeal. You must decide the weight, if any, to give this evidence.]

[In deciding whether the conduct lacks serious literary, artistic, political, or scientific value, you may [also] consider whether the defendant knew that the conduct showed persons under 16 years old engaging in sexual activities. You must decide the weight, if any, to give this evidence.]

[In deciding whether, according to contemporary statewide standards, the conduct appeals to a prurient interest, you may consider whether similar conduct is openly shown in the statewide community. You must decide the weight, if any, to give this evidence.]

[If it appears from the character of the conduct or the circumstances of its presentation or showing that it is designed for a clearly defined deviant sexual group, the appeal of the conduct must be judged based on its intended audience.]

<Defense: Legitimate Scientific or Educational Purpose>

[The defendant is not guilty of this crime if (he/she) was engaging in legitimate medical, scientific, or educational activities. The People have the burden of proving beyond a reasonable doubt that the defendant was not acting for a legitimate medical, scientific or educational purpose. If the People have not met this burden, you must find the defendant not guilty of this crime.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

If there is sufficient evidence that the defendant was engaging in legitimate medical, scientific, or educational activities, the court has a sua sponte duty to instruct on that defense. (Pen. Code, § 311.8(a).) It is unclear who bears the burden of proof and what standard of proof applies to this defense. In the absence of statutory authority or case law stating that the defendant must prove the defense by a preponderance of the evidence, the committee has drafted the instruction to provide that the prosecution must prove beyond a reasonable doubt that the defense does not apply. (See People v. Mower (2002) 28 Cal.4th 457, 478-479 [122 Cal.Rptr.2d 326]; see also People v. Woodward (2004) 116 Cal.App.4th 821, 840-841 [10 Cal.Rptr.3d 779] ["legitimate" does not require definition, and the trial court erred in giving amplifying instruction based on People v. Marler (1962) 199 Cal.App.2d Supp. 889 [18 Cal.Rptr. 923]].)

Authority

Elements. Pen. Code, § 311.6.

Obscene Live Conduct Defined. Pen. Code, § 311(g); see In re Giannini (1968) 69 Cal.2d 563, 575 [72 Cal.Rptr. 655, 466 P.2d 535] [not all topless dancing obscene]; Miller v. California (1973) 413 U.S. 15, 24 [93 S.Ct. 2607, 37 L.Ed.2d 419]; Pope v. Illinois (1987) 481 U.S. 497, 500-501 [107 S.Ct. 1918, 95 L.Ed.2d 439].

Contemporary Community Standards. See Roth v. United States (1957) 354 U.S. 476, 489-490 [77 S.Ct. 1304, 1 L.Ed.2d 1498].

Prurient Interest Defined. Bloom v. Municipal Court (1976) 16 Cal.3d 71, 77 [127 Cal.Rptr. 317, 545 P.2d 229].

Person Defined. Pen. Code, § 311(c).

Knowingly Defined. Pen. Code, § 311(e); see People v. Kuhns (1976) 61 Cal.App.3d 735, 756-758 [132 Cal.Rptr. 725].

Exhibit Defined. Pen. Code, § 311(f).

Matter Designed for Deviant Sexual Group. Pen. Code, § 311(a)(1); see People v. Young (1977) 77 Cal.App.3d Supp. 10, 14-15 [143 Cal.Rptr. 604].

Commercial Exploitation Is Probative of Matter's Nature. Pen. Code, § 311(a)(2); People v. Kuhns (1976) 61 Cal.App.3d 735, 748-753 [132 Cal.Rptr. 725].

Knowledge That Matter Depicts Child Under 16 Is Probative of Conduct's Nature. Pen. Code, § 311(g)(3).

Similar Matter Shown in Community. In re Harris (1961) 56 Cal.2d 879, 880 [16 Cal.Rptr. 889, 366 P.2d 305]; People v. Heller (1979) 96 Cal.App.3d Supp. 1, 7 [157 Cal.Rptr. 830].

Exceptions to Statutory Prohibitions. Pen. Code, § 311.8.

Taken or Considered as a Whole. People v. Goulet (1971) 21 Cal.App.3d Supp. 1, 3 [98 Cal.Rptr. 782]; Kois v. Wisconsin (1972) 408 U.S. 229, 231 [92 S.Ct. 2245, 33 L.Ed.2d 312].

Obscenity Contrasted With Sex. Roth v. United States (1957) 354 U.S. 476, 487 [77 S.Ct. 1304, 1 L.Ed.2d 1498].

Obscenity Contrasted With Nudity. People v. Noroff (1967) 67 Cal.2d 791, 795-796 [63 Cal.Rptr. 575, 433 P.2d 479]; In re Panchot (1968) 70 Cal.2d 105, 108-109 [73 Cal.Rptr. 689, 448 P.2d 385].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 79-91.

7 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, §§ 310-313.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice,

Related Issues

See the Related Issues section of CALCRIM No. 1141, Distributing Obscene Matter Showing Sexual Conduct by a Minor and CALCRIM No. 1142, Distributing or Intending to Distribute Obscene Material.

(New January 2006)