The opinion
Greaney, C.J.
(dissenting). I disagree with the majority’s conclusion that a new trial is required because the requested instruction on context was not given.
While the context in which allegedly obscene material is disseminated is relevant to the issue of the material’s patent offensiveness, see Commonwealth v. United Books, Inc., 389 Mass. 888, 899 (1983), the fact that an allegedly obscene “film was available only to consenting adults is not a defense to a charge of disseminating obscene matter under § 29.” Id. at 898. Moreover, as G. L. c. 272, § 31, the statute establishing the three-part test for determining obscenity makes apparent, the question whether a motion picture film is patently offensive *582 is to be decided primarily by examination of the film itself. The difference between a motion picture film which is before the trier of fact (where context is of less relevance) and other types of performances which can only be verbally described to the trier (where context is more important) was underscored in Commonwealth v. Plank, 378 Mass. 465, 469 (1979), in the following terms: “Where the matter at issue is a film . . . and is in evidence, it may itself be sufficient evidence to warrant a finding of patent offensiveness. . . . A live performance such as a dance, on the other hand, cannot ordinarily be placed directly in evidence.” The Plank decision went on to point out that, in the case of a performance which cannot be seen by the jury, evidence of context is virtually indispensible to deciding patent offensiveness.
Relating these principles to this case, I perceive no reversible error. As described in the majority opinion, the jury had before them extensive evidence of the context in which “Sorority Sweethearts” was shown, including testimony about the location of the theatre as part of a shopping center in Chelsea, its physical characteristics, advertisements of the film as triple x-rated, signs posted by management to keep out persons under age eighteen, and the adult composition of the audience when the officers saw the movie. The importance of context evidence was also argued at length in the closing remarks of defense counsel, see note 5 to the court’s opinion, supra, who may have gained an advantage he was not entitled to by implying to the jury that it was not a crime to show the film to an audience of consenting adults. The prosecutor’s brief reply to the argument merely sought to focus the jury on the correct inquiry in the case. 1 I see nothing in the prosecutor’s argument which undermined the relevance of the evidence of context. 2
*583 What is of particular importance, however, in light of the legal distinctions discussed earlier, is the fact that the jury had “Sorority Sweethearts” for their complete viewing, and they also had before them the testimony of an expert witness called by the defense. The expert, a professor of English and film studies at Southeastern Massachusetts University, testified at length about the literary and artistic merit of “Sorority Sweethearts” in relation to the three-part test for determining obscenity, set forth in G. L. c. 272, § 31. The expert’s testimony on the elements of obscenity, including the element of patent offensiveness, not context, made up the core of the defense in the case. The jury thus were able to compare the expert’s testimony with what they actually saw in “Sorority Sweethearts.” They ultimately decided to reject the expert’s opinions concerning the film’s literary and artistic merit and to find “Sorority Sweethearts” obscene based on their examination of its reel-to-reel depiction of acts of masturbation, bisexuality, fellatio, cunnilingus, and sexual intercourse.
Moreover, the jury found “Sorority Sweethearts” obscene in the light of clear, comprehensive, and correct instructions by the judge on the three-part statutory test for obscenity. These instructions emphasized that the jury were to apply the attitudes and standards of the average adult citizen of the community. I think the judge properly rejected the defendant’s requested instruction, see note 3 to the court’s opinion, supra, which bore down on the consenting adult theme, and which, if given, might have misled the jury into erroneously thinking that showing “Sorority Sweethearts” only to an audience of consenting adults constituted a complete defense. There was no negative instruction on context. The judge was not required to discuss in his charge every subsidiary fact and inference, Commonwealth v. Monahan, 349 Mass. 139, 171 (1965), so long as the charge, as a whole, was adequate. Commonwealth *584 v. Sherry, 386 Mass. 682, 696 (1982). The charge, in my view, was more than adequate.
For the future, in order to ward off appeals like this one, I would urge some brief instruction in the final charge on context. 3 This judgment of conviction, however, I would let stand because I am satisfied that the jury’s verdict finding “Sorority Sweethearts” obscene followed a fair trial and expresses the jury’s unanimous agreement (to paraphrase Justice Potter Stewart’s concurring opinion in Jacobellis v. Ohio, 378 U.S. 184, 197 [1964]), that we knew it when we saw it. 4
The prosecutor argued: “The focus isn’t whether it was adults that viewed [the film], because its not a crime to view the film.” The argument stated a correct principle of law and was an entirely proper attempt to dispel any incorrect implications created by defense counsel’s closing argument.
Although in Commonwealth v. United Books, Inc., supra, the necessity of an instruction on context was not in issue, no error was found where evidence of context was admitted and counsel for the defendant was permitted *583 to argue the relevance of the context evidence to the jury. In upholding the conviction, the court found (at 899-900) that, by the evidence and the closing argument, “the jury were adequately apprised of the context in which [the peep show] was available in determining whether it was patently offensive.”
Instructions on the three-part test for determining obscenity pose no difficulty since the standards for each part of the test are set forth in G. L. c. 272, § 31. The statute furnishes, in essence, a pattern charge. A pattern charge may be desirable for the context instruction since it deals with the relevance of certain evidence. If not properly given, a context instruction could become confusing. In a situation involving a film which will be seen by the jury I would, for the present, confine the instruction to the language in Commonwealth v. United Books, Inc., supra at 898-899, which indicates that the fact a film is shown to consenting adults is not a defense to a charge under § 29, but that the context in which the film is shown, including the fact that it was available to consenting adults, is an appropriate consideration in determining whether the film is patently obscene.
I join with majority in the disposition of the balance of the issues. I especially recommend the material in note 2 to the court’s opinion, supra, since the summary disposition process under rule 1:28 is vital to this court’s efficient operation. Although the issue of the charge on context has merit, as our disagreement illustrates, most of the remaining issues are susceptible to treatment under rule 1:28.