Petition — Gambino v. Louisiana

‘

3 Supreme Court, U. &

| FILED

| DEC 15 1978

Car Wil py oan. JR. CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78 -96K

WARREN GAMBINO,

Petitioner,

versus

STATE OF LOUISIANA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF LOUISIANA

WILLIAM M. LUCAS, JR.

and

PATRICK RANKIN —

Attorneys for Petitioner

1006 First National Bank

of Commerce Building

New Orleans, Louisiana 70112

Telephone: (S04) 529-5551

SCOFIELDS' QUALITY PRINTERS, P. O. BOX $3006, N. O.. LA. 70153 - 504/822-1611

TABLE OF CONTENTS

Page

i nedeceose 1

pe eae ES A en a as aa 2

QUESTIONS PRESENTED FOR REVIEW ...... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...........0.. .00ee- 3

STATEMENT OF THE CASE .................-. 4

REASONS RELIED ON FOR ALLOWANCE

OF WRIT:

1. The Louisiana Obscenity Statute,

L.R.S. 14:106, as interpreted in this

case, may not be applied retroactively ..... 8

2. The Louisiana Obscenity Statute,

L.R.S. 14:106 F (1), as applied in this

case, is void for vagueness and over-

Ne ee cae ceees 11

3. Gambino was deprived of a trial by

jury on an essential element of the

pee a GE Se 13

4. Conviction by five out of six jurors

does not satisfy the requirements of

the Sixth and Fourteenth

EES TA Ns 14

5. The standard applied by the Louisiana

Supreme Court in its independent

review of “National Screw” con-

travened the First and Fourteenth

Pe Ls ca iesa'ws c'eeee 16

TABLE OF CONTENTS (Continued)

Page

EN As Hee udkics'y ss keanereegnerel ss 19

ES OPN GE GEVIGE cicccccsccccccscces 20

APPENDIX:

1. Opinion of the Louisiana Supreme

hs Caubibie- sae bese Weis obese ens la

2. Certificate of denial of rehearing by

the Louisiana Supreme Court ......... 16a

ee I cs diy CPE Lb dibaa ks 6 6-0-0 Sa 8 bh bss 17a

Oo ie Sees hos eV ckines 4s ebe-e Wa 24a

Ti EE, 4.5 edd oR ea cA aeoawky ede. 24a

CR + Siakce tanita tbphkecd esses 25a

TABLE OF AUTHORITIES

Cases:

BALLEW v. GEORGIA, 985S.Ct. 1029 (1978) .14,15,16

BOUIE v. CITY OF COLUMBIA, 378 U.S.

347, 84 S.Ct. 1697 (1964) ......... ee eee 8

CONNALLY v. GENERAL CONSTRUC-

TION CO., 269 U.S. 385, 46 S.Ct. 126

CRs ill as Uae GLa disc ila he's wai d, 0a'e'o 11

DANIEL BURCH AND WRESTLE, INC. v.

STATE OF LOUISIANA, U.S. S.Ct. No. 78-

NE EEE APO CED ko DOD aR eS RPE 6,16

HUFFMAN v. U.S., 502 F.2d 419 (D.C. Cir.

BY COLE FAA VARY CRAKE MEM Fens gaeeies 10

TABLE OF AUTHORITIES (Continued)

Page

INTERSTATE CIRCUIT, INC. v. DALLAS,

390 U.S. 676, 88 S.Ct. 1298 (1968) ........... 11

JACOBELLIS v. STATE OF OHIO, 378 U.S.

£06, G6. St: 16GO CIR) «vin. CONES a 12

LANZETTA v. NEW JERSEY, 306 U.S. 451,

SO Bit O68 CN 58 oi ne RK een 11

McKINNEY v. ALABAMA, 424 U.S. 669, 96

ie BE Cas cceinss Oh ee Ab adhe ada sch be 13

MILLER v. CALIFORNIA, 413 U.S. 15, 93

Se PO TI ec dees Aa ed WOE Khan’ 16

NIEMOTKO v. MARYLAND, 340 U.S. 268,

95 SEh. 250 GSR cnc ee eee a 11

PAPCHRISTOU v. CITY OF JACKSON-

VILLE, 405 U.S. 156, 92 S.Ct. 839 (1972) ..... 11

PENTHOUSE INTERN., LTD. v.

McAULIFFE, 454 F.Supp. 289 (N.D. Ga.

OGTR boi ed Sc bas acer ACRE i 17,19

PIPEFITTERS LOCAL UNION NO. 562 v.

U.S., 407 U.S. 385, 92 S.Ct. 2247 (1972) ...... 6

RABE v. WASHINGTON, 405 U.S. 313, 92

Bh EE as wh iv Senda ere OMe a Acts 11

SILBER v. U.S., 370 U.S. 717, 82 S.Ct. 1287

Ns Wes cae eaaes DECANE LA Rees 6

STATE v. LONG, 133 La. 580, 63 So. 180

| 5) ROMER aa aie Cer pe oA En LOS gE oN ie UL Sr gv 10

iv

TABLE OF AUTHORITIES (Continued)

Page

STATE v. WRESTLE, INC., 360 So.2d 831

Ce Be 6 ides i bot Biv Rede acdc ee 6

THORNHILL v. ALABAMA, 310 U.S. 88, 60

BLS, Tee awdcer din tdeebh co peeedeebde 11

UNITED BROTHERHOOD, ETC. v. U.S.,

330 U.S. 308, 67 S.Ct. 77S (IOGF) oc viiicciccvKeors 13

UNITED STATES v. HAYWARD, 420 F.2d

BER Cr. BI evra tad vt ei 13

WILLIAMS v. FLORIDA, 399 U.S. 78, 90

SE EE icicle oes Kae teacteekckavn 15

WINTERS v. NEW YORK, 333 U.S. 507, 68

Ss OE CD isi ain dnd 4 ddd alee ca weekk 11

Constitutional and Statutory Authorities:

Constitution of the United States:

Gad A a hoo Diknhcdis a dudes 2,3,16,17

Oi RI din bea ie ec cbeaeks 2,3,13,14

TOU AAS iia ih Ede dive Shove 2,3,14,16

Constitution of the State of Louisiana, Article

C, BCP | ha ss kiki s Peel hake eiaeks 3,14

Title 28, United States Code, Section 1257(3) ..... 2

Louisiana Revised Statutes 14:41 ......... 4,10,24a

Louisiana Revised Statutes 14:41.1 ........ 4,10,24a

v

TABLE OF AUTHORITIES (Continued)

Page

Louisiana Revised Statutes 14:89 ......... 4,10,25a

Louisiana Revised Statutes

DT cise sa vvadeeeveden vos 1,2,4,5,8,14,17a-24a

Louisiana Revised Statutes 14:106 F (1) ...... passim

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

WARREN GAMBINO,

Petitioner,

versus

STATE OF LOUISIANA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF LOUISIANA

Petitioner respectfully prays that a writ of certiorari

issue to review the final order of the Supreme Court of

the State of Louisiana entered herein on September 5,

1978, affirming Petitioner’s conviction for the crime of

obscenity under Louisiana Revised Statute 14:106.

OPINION BELOW

The opinion of the Louisiana Supreme Court is

reported at 362 So. 2d 1107 (La. 1978). A copy of said

opinion is appended hereto, infra at p. 1a.

2

JURISDICTION

The final order of the Louisiana Supreme Court was

made and entered on September 5, 1978. The Louisiana

Supreme Court denied your Petitioner’s application for

rehearing on October 5, 1978 and, on the same day is-

sued a stay of mandate until December 15, 1978, pend-

ing application for certiorari to this Honorable Court.

The jurisdiction of this Court is invoked under 28

U.S.C. 1257(3).

QUESTIONS PRESENTED FOR REVIEW

I. May the Louisiana Obscenity Statute, L.R.S.

14:106, as interpreted in this case, be applied retroac-

tively?

Il. Is the Louisiana Obscenity Statute, L.R.S.

14:106 F (1), as applied in this case, void for vagueness

and overbreadth?

Ill. Did the Trial Court’s refusal to charge the jury

on an essential element of the offense deny defendant

his Sixth and Fourteenth Amendment rights?

IV. Does conviction by five out of six members of a

jury satisfy the requirements of the Sixth and

Fourteenth Amendments?

V. Did the Louisiana Supreme Court, in its in-

dependent review of “National Screw” apply standards

contravening the First and Fourteenth Amendments?

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Constitution of the United States, Amendment

I: “Congress shall make no law ... abridging the

freedom of speech, or of the press...”

The Constitution of the United States, Amendment

VI: “In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, .. .” é

The Constitution of the United States, Amendment

XIV, Section 1:”. . .nor shall any state deprive any per-

son of life, liberty, or property without due process of

ee

The Constitution of the State of Louisiana, Article I,

Section 17: ”. . . A case in which the punishment may

be confinement at hard labor or confinement without

hard labor for more than six months shall be tried

before a jury of six persons, five of whom must concur

to render a verdict... .”

Louisiana Revised Statutes 14:106 F (1):

Except for those motion pictures, printed

materials and photographic materials show-

ing actual! ultimate sexual acts or simulated or

animated ultimate sexual acts when there is

4

an explicit, close-up depiction of human

genital organs so as to give the appearance of

the consummation of ultimate sexual acts, no

person, firm or corporation shall be arrested,

charged or indicted for any violation of a

provision of this section until such time as the

material involved has first been the subject of

an adversary hearing under the provisions of

this section, wherein such person, firm or cor-

poration is made a defendant and, after such

material is declared by the court to be obscene,

such person, firm or corporation continues to

engage in the conduct prohibited by this sec-

tion. The sole issue at the hearing shall be

whether the material is obscene.

Louisiana Revised Statutes 14:106 is printed in its

entirety, infra, at p. 17a.

Louisiana Revised Statutes 14:41, 14:41.1 and 14:89,

which are of only marginal relevance, are printed infra

at p. 24a.

STATEMENT OF THE CASE

On July 27, 1977, in anin rem adversary hearing held

in accordance with L.R.S. 14:106 F (1), supra, the July

issue of “National Screw” magazine was declared

obscene by a magistrate of the Criminal District Court

of Orleans Parish. The newsstand operator who was

made a party to that proceeding was warned that if he

5

continued to sell the magazine, he would be subject to

criminal charges. Warren Gambino was not a party to

nor aware of that hearing, yet he was arrested for the

sale of the same issue of the same magazine three days

later on July 30, 1977.

Warren Gambino received no prior adversary hear-

ing or warning to cease selling the magazine. He was

charged, tried, convicted and sentenced to imprison-

ment under the broad provisions of L.R.S. 14:106 A, in-

fra at p. 17a, rather than the narrower provisions of

L.R.S. 14:106 F (1), supra. Why the District Attorney

chose to afford a prior adversary hearing to the news-

stand owner but not Gambino when both sold the same

publication is an unanswered question.

In addition to sexually oriented material, “National

Screw” contained an abundance of written and pictorial

material, including public figure interviews, political

comment, popular sociology, and short stories.

“National Screw” contains no depiction of sexual

penetration.

Prior to trial, Gambino filed a Motion to Quash alleg-

ing that his arrest for obscenity was unlawful in the

absence of a prior adversary hearing mandated by

L.R.S. 14:106 F (1), supra. The Trial Judge denied the

Motion, finding that “National Screw” contained depic-

tions of “the consummation of ultimate sexual acts” on

three pages. An Exception to the ruling was perfected

and the issue raised again on appeal to the Louisiana

Supreme Court by means of a Bill of Exceptions.

6

Gambino’s first trial, on September 29, 1977, result-

ed in a hung jury. At his second trial, on November 9,

1977, asix man jury convicted Gambino by a 5 to 1 vote.

Although no exception has reserved to the majority

jury verdict, its implicit issue constitutes “plain error”,

STATE v. WRESTLE, INC., 360 So. 2d 831 (La. 1978),

and may be considered by this Honorable Court pur-

suant to Supreme Court Rule 40(d)(2) and SILBER v.

UNITED STATES, 370 U.S. 717, 82 S.Ct. 1287 (1962);

PIPEFITTER’S LOCAL UNION NO. 562 v. UNITED

STATES, 407 U.S. 385, 92 S.Ct. 2247 (1972). This

Honorable Court has granted Writs of Certiorari in

STATE v. WRESTLE, INC., supra, sdb nom DANIEL

BURCH v. STATE OF LOUISIANA (No. 78-90) in

order to determine the constitutionality of conviction

by 5 members of a six man jury.

At both trials, the trial judge refused to grant Defen-

dant’s requested jury charge number 9, which stated:

“Determination of this second element is a

three-step procedure. First you must deter-

mine whether or not the magazine shows ac-

tual ultimate sexual acts or simulated or

animated ultimate sexual acts when there is

an explicit close-up depiction of human sexual

organs so as to give the appearance of the con-

summation of ultimate sexual acts.”

An Exception was reserved to the refusal to grant

this charge and the issue was raised on appeal to the

7

Louisiana Supreme Court by way of a Bill of Excep-

tions.

Following his conviction, Gambino was sentenced to

six months imprisonment and a $1,000.00 fine.

On appeal, the Louisiana Supreme Court, by a four

to three plurality and for the first time, held that the

“consummation of ultimate sexual acts” did not require

sexual penetration. One of the concurring justices

opined that “ultimate sexual acts” were “all behavior

clearly having no goal other than sexual penetration”

but that the “consummation” of such behavior did not

require sexual penetration. Three dissenting justices

generally stated that the magazine showed no

“ultimate sexual acts” and that Gambino had been un-

lawfully arrested.

In its opinion, the Louisiana Supreme Court failed to

explain why the jury should not have been allowed to

determine whether or not the magazine depicted “con-

summation of ultimate sexual acts.” Since, the opinion

incorrectly stated that the jury had, in fact, made such a

determination, the issue was again raised in an applica-

tion for rehearing which was denied with three justices

dissenting.

In connection with its independent review of

“National Screw”, the Louisiana Supreme Court stated

at 362 So. 2d 1111:

“Conceding arguendo that some material in

the magazine is of a serious literary, artistic,

political or scientific value, that material has

no rational relationship to that found by the

jury, the trial judge and this Court to be hard-

core sexual depictions, it is the offensive

depiction of sexual conduct itself which must

have ‘serious literary, artistic, political or

scientific value’ to merit First Amendment

protection.”

REASONS RELIED ON FOR

ALLOWANCE OF WRIT

1. The Louisiana Obscenity Statute, L.R.S. 14:106,

As Interpreted In This Case, May Not Be Applied

Retroactively:

In BOUIE v. CITY OF COLUMBIA, 378 US. 347,

352, 353, 84 S.Ct. 1697, 1702 (1964), this Honorable

Court stated:

“There can be no doubt that a deprivation of

the right of fair warning can result not only

from vague statutory language but also from

an unforeseeable and retroactive judicial ex-

pansion of narrow and precise statutory lan-

guage. As the Court recognized in Pierce v.

United States, 314 U.S. 306, 311, 62S.Ct. 237,

239, ‘judicial enlargement of a criminal act by

interpretation is at war with a fundamental

9

concept of the common law that crimes must

be defined with appropriate definiteness.’

Even where vague statutes are concerned, it

has been pointed out that the vice in such an

enactment cannot ‘be cured in agiven case bya

construction in that very case placing valid

limits on the statute,’ for

‘the objection of vagueness is two-fold:

inadequate guidance to the individual

whose conduct is regulated, and inade-

quate guidance to the triers of fact. The

former objection could not be cured

retrospectively by a ruling either of the

trial court or the appellate court, though

it might be cured for the future by an

authoritative judicial gloss. * * Freund,

The Supreme Court and Civil Liberties, 4

Vand.L.Rev. 533, 541 (1951).”

In Louisiana, one may generally be arrested and

prosecuted for the crime of obscenity only if he has

been judicially warned in a prior adversary hearing that

the materials he intends to distribute are obscene. See

L.R.S. 14:106 F (1). The sole exception to this legislative

policy occurs in the case of materials which show “an

explicit close-up depiction of human genital organs so

as to give the appearance of the consummation of ul-

timate sexual acts”.

10

Prior to the Louisiana Supreme Court's opinion in

this case, most people would have thought that the

“consummation of ultimate sexual acts” required some

form of sexual penetration. Such a construction is

suggested by other Louisiana Statutes and their judicial

interpretations establishing criminal penalties for acts

of coitus, anal and oral intercourse. The crimes of Rape,

L.R.S. 14:41, infra at p. 24a, Homosexual Rape, L.R.S.

14:41.1, infra at p. 24a, and as interpreted in STATE v

LONG, 133 La. 580, 63 So. 180 (1913), Crime Against

Nature 14:89, infra at p. 25a, all require sexual penetra-

tion “however slight” for completion or consumma-

tion. Likewise, the only judicial gloss, prior to the in-

stant case, indicated that penetration was the sine qua

non of “ultimate sexual acts”. See HUFFMAN v. UNIT-

ED STATES, 502 F.2d 419, 423 (D.C. Cir. 1974),

Armed with common sense, a dictionary, and the

existing body of law, Warren Gambino could not

possibly have foreseen immediate arrest and prosecu-

tion, much less conviction and imprisonment, for sell-

ing acopy of “National Screw” which contains no depic-

tions of sexual penetration.

Under such circumstances, the Louisiana Supreme

Court's interpretation of L.R.S. 14:106 F (1) should not

be applied retroactively.

11

2. The Louisiana Obscenity Statute, R.S. 14:106 F

(1), As Applied In This Case, Is Void For Vagueness

And Overbreadth:

Subjective definitions of criminal conduct offend the

due process requirements of the Fourteenth Amend-

ment because they fail to provide fair notice of “what

the law commands or forbids,” LANZETTA v. NEW

JERSEY, 306 U.S. 451, 453, 59 S.Ct. 618, 619 (1939);

see also CONNALLY v. GENERAL CONSTRUC-

TION CO., 269 U.S. 385, 46 S.Ct. 126 (1926); RABE v.

WASHINGTON, 405 U.S. 313, 92 S.Ct. 993 (1972); IN-

TERSTATE CIRCUIT, INC. v. DALLAS, 390 U.S. 676,

88 S.Ct. 1298 (1968); WINTERS v. NEW YORK, 333

U.S. 507, 68 S.Ct. 665 (1948), and because they invite

arbitrary and erratic enforcement of the law, see

PAPACHRISTOU v. CITY OF JACKSONVILLE, 405

U.S. 156, 92 S.Ct. 839 (1972); NIEMOTKO v.

MARYLAND, 340 U.S. 268, 71 S.Ct. 325 (1951);

THORNHILL v. ALABAMA, 310 U.S. 88, 60S.Ct. 736

(1940). Although the phrase “consummation of ul-

timate sexual acts” is capable of an objective definition,

i.e., sexual penetration, the Louisiana Supreme Court

expressly rejected such an objective standard.

Instead of providing an objective definition, the opin-

ion of Justices Summers, Sanders and Marcus merely

described the photographs in question and subjectively

concluded that they “give the appearance of the con-

summation of the ultimate sexual act of cunnilingus.”

This subjective standard appears to be the same “I

12

know it when I see it” advanced by Justice Stewart's

concurring opinion in JACOBELLIS v. STATE OF

OHIO, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683 (1964).

The manner in which the photographs, which show no

actual contact between oral and genital organs, depict

“consummation” is locked forever in the minds of the

justices who formulated the opinion, where it provides

no instruction for those who must enforce or abide by

the law.

The concurring opinion of Justice Dennis piles

subjectivity on subjectivity. Although the other ma-

jority justices identified “ultimate sexual acts” as

coitus, anal and oralintercourse, Justice Dennis defined

the phrase as “all behavior clearly having no goal other

than sexual penetration”. Even if this subjectively

phrased definition of “ultimate sexual acts” is correct,

what, other than sexual penetration, constitutes “con-

summation” of behavior clearly having no goal other

than sexual penetration?” The opinion suggests only

that the actions depicted must be near penetration.

This “close enough” standard offers no aid to those

who must interpret the law.

The abuses which must follow such subjective inter-

pretations are reflected by the facts of this case. Three

days prior to Gambino’s arrest, the July, 1977 issue of

“National Screw” was declared obscene in a prior

adversary hearing held pursuant to L.R.S. 14:106 F (1)

in the Criminal District Court for Orleans Parish. The

newsstand operator who was made a party to that

13

hearing was given a “judicial warning” to cease selling

the magazine but Warren Gambino, who was not made

a party to the hearing and who received no such warn-

ing was tried, convicted and sentenced to imprison-

ment for selling the same magazine. Cf. McKINNEY v.

ALABAMA, 424 U.S. 669, 96 S.Ct. 1189 (1976). The

subjective nature of the test for “consummation of ul-

timate sexual acts” announced by the Louisiana

Supreme Court in this case will foster such erratic en-

forcement in the future and should not be allowed to

stand.

3... Gambino Was Deprived Of A Trial By Jury On An

Essential Element Of The Offense:

“Implicit in the right to trial by jury afforded criminal

defendants under the Sixth Amendment to the Con-

stitution of the United States is the right to have the

jury decide all relevant issues of fact.” UNITED

STATES v. HAYWARD, 420 F.2d 142, 144 (D.C. Cir.,

1969); See also UNITED BROTHERHOOD, ETC. v.

UNITED STATES, 330 U.S. 395, 408, 409, 67 S.Ct.

775, 782 (1947).

The issue of whether or not “National Screw” con-

tained depictions of “consummation of ultimate sexual

acts” was an essential and relevant issue of fact insofar

as Gambino could not have been convicted of (or even

arrested for or charged with) the crime of obscenity in

the absence of such depictions. See L.R.S. 14:106 F (1).

14

a

Despite Gambino’s requests for special jury charges,

the Trial Court refused to submit the issue to the jury.

The Trial Court’s error was compounded because the

jury was instructed to apply the broader standards of

L.R.S. 14:106 A only, and may thus have convicted

Gambino on the basis of depictions which normally

would have subjected him only to an adversary hear-

ing. Compare 14:106 A (2) (b)-(c)-(d) with 14:106 F (1).

It should be noted that the trial court not only refus-

ed defendants’ special instructions but did not even

read subparagraph F to the jury, thus pretermitting

any possible knowledge or consideration by the jurors

of this element of the crime. In effect, a directed verdict

of an essential element of the offense was granted the

State.

4. Conviction By Five Out Of Six Jurors Does Not

Satisfy The Requirements Of The Sixth And Four-

teenth Amendments:

Prior to 1974, Louisiana law provided for a jury of

five for lesser felonies with a requirement for a un-

animous verdict. The law then was substantially

similar to the Georgia jury provision invalidated earlier

this year by this Court in BALLEW v. GEORGIA, 98

S.Ct. 1029 (1978). The new 1974 Louisiana constitu-

tion changed this requirement by adding a sixth juror,

though requiring that only five must concur to render a

verdict. Article I, Section 17. It is submitted that the

principles and considerations which caused this Court

15

to invalidate the Georgia jury provision in BALLEW ap-

ply with equal if not greater force to the Louisiana

provision for a non-unanimous six-person jury.

In WILLIAMS v. FLORIDA, 399 U.S. 78, 90 S.Ct.

1893 (1970) this Court held that a six-man jury did not

violate Sixth Amendment rights, because such a jury

should probably be large enough to promote group

deliberation, free from outside attempts at intimida-

tion, and should provide a fair possibility for obtaining

a representative cross-section of the community. The

Court stated:

“But we find little reason to think that these

goals are in any meaningful senseless likely to

be achieved when the jury numbers six, than

when it numbers twelve — particularly if the

requirement of unanimity is retained.” (emphasis

added) 399 U.S. 100, 90 S.Ct. 1906.

In Louisiana, since unanimity is not required in a six-

man jury, the question arises as to whether the goals

mentioned by this Court will be achieved by permit-

ting conviction upon the agreement of five of the six

jurors. In BALLEW, Justice Blackmun, writing for the

Court, expressed the concern that with a jury of less

than six, the chance for hung juries would decline, to

the detriment of the defense. Clearly, this concern ap-

plies to a Louisiana six-person jury with greater force,

since only five persons are required for conviction.

16

The concurring opinions in BALLEW, supra,

suggested that a jury of less than six would “fail to

represent the sense of the community and hence not

satisfy the fair cross-section requirements of the Sixth

and Fourteenth Amendments”. 98 S.Ct. 1042. In an

obscenity prosecution like the present case, this failure

is especially critical as the jury must, as a practical

matter, draw on the experiences of its members in

determining community standards. When the ex-

periences of one juror may be ignored, as in this case,

the probability of a correct determination is probably

less and certainly nogreater than witha five man jury.

As previously stated, this issue has already been

accepted for review in DANIEL BURCH AND WRES-

TLE, INC. v. STATE OF LOUISIANA, No. 78-90 on

the docket of this Court. It is respectfully submitted

that a Writ of Certiorari should likewise be granted in

this case.

5. The Standard Applied By The Louisiana Supreme

Court In Its Independent Review Of National Screw

Contravened The First And Fourteenth Amendments:

In order to lose the protective blanket of the First

Amendment, it must be determined that an allegedly

obscene publication “taken as a whole, lacks serious

literary, artistic, political or scientific value.” MILLER

v. CALIFORNIA, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615

(1973). In its independent review of “National Screw”,

the Louisiana Supreme Court refused to apply this

17

“taken as a whole” standard, stating at 362 So.2d 1111,

1112:

“Conceding arguendo that some material in

the magazine is of a serious literary, artistic,

political or scientific value, that material has

no rational relationship to that found by the

jury, the trial judge and this Court to be hard-

core sexual depictions. It is the offensive

depiction of sexual conduct itself which must

have ‘serious literary, artistic, political or

scientific value’ to merit First Amendment

protection.”

The contention that only the portions of a magazine

having a “rational relationship” to offensive portrayals

effectively removes all magazines which offend in part

from First Amendment protection because magazines,

unlike novels or movies which depend on organic con-

sistency for artistic success, consist of more or less un-

related articles and pictures whose only “rational

relationship” is an appeal to the consumer market serv-

ed.

Although this Honorable Court has never directly

addressed this issue, the District Court in

PENTHOUSE INTERN., LTD. v. McAULIFFE, 454

F.Supp. 289 (N.D. Ga. 1978) held independent review

of discrete portions of a magazine unconstitutional.

The Court stated at 454 F.Supp. 303:

~

18

Solicitor McAuliffe has argued that the

‘taken as a whole’ test was devised to apply to

‘works’ and that when a magazine which

typically is an eclectic publication containing

several seemingly unrelated pieces tied

together only by a central approach or theme

is perused, discrete works within the

magazine may be ‘taken as a whole’ and may

independently be adjudged obscene. In sup-

port of this position, Mr. McAuliffe refers the

court to famous footnote seven of Miller

which cites with approval the statement in

Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245,

33 L.Ed.2d 312 (1972), that‘[a] quotation from

Voltaire in the flyleaf of a book will not

constitutionally redeem an otherwise obscene

publication.’ Defendant McAuliffe’s position

is clearly incorrect.

First, the ‘taken as a whole’ standard of

Miller is not really new, see Roth v. United States,

354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498

(1957), and simply reflects in essence the prac-

tical fact that an arguably obscene book or

magazine is going to be published or banned as

a discrete unit. It is practically impossible and

legally impermissible for defendant McAuliffe

to tip-toe through each and every ‘Playboy’,

‘Oui’ and ‘Penthouse’ vended in Fulton

County, scissors in hand, and to excise those

portions of the magazine thought to be

19

obscene. A magazine is a ‘whole’ within the

meaning of Miller and it must be judged as

such,

It is submitted that the ‘holding in PENTHOUSE

INTERNATIONAL, supra, is correct and that of the

Louisiana Supreme Court is erroneous.

CONCLUSION

For the above reasons, the issuance of the mandate

by the Louisiana Supreme Court should be stayed anda

writ of certiorari should be issued to review the judg-

ment of that Court.

Respectfully submitted,

WILLIAM M. LUCAS, JR.

AND

PATRICK RANKIN

1006 First National Bank

of Commerce Bldg.

New Orleans, LA 70112

Telephone: (504) 529-5551

20

CERTIFICATE OF SERVICE

I hereby certify that I have on this

Decem ber, 1978, forwarded three copies o

ing Petition for Certiorari to the District

the Parish of Orleans, Honorable Harry

United States mail, postage prepaid.

——. day of

f the forego-

Attorney for

Connick, by

WILLIAM M. LUCAS, JR.

la

APPENDIX

STATE of Louisiana

versus

Warren GAMBINO.

No. 61728.

Supreme Court of Louisiana.

Sept. 5, 1978.

Rehearing Denied Oct. 5, 1978.

SUMMERS, Justice.

By a bill of information the District Attorney of

Orleans Parish charged defendant Warren Gambino

with the exhibition, management and display of hard-

core sexual conduct in the July 1977 issue of a magazine

entitled “National Screw”, a violation of the Obscenity

Act. La.Rev.Stat. 14:106.! After trial by jury defendant

1. The pertinent provisions of the obscenity statute follow:

“A. The crime of obscenity is the intentional:

* 7 “ .

“(2) Participation or engagement in, or management,

roduction, presentation, performance, promotion, ex-

Fibition, advertisement, sponsorship, or display of, hard

core sexual conduct when the trier of fact determines

that the average person applying contemporary com-

munity standards would find that the conduct, taken asa

2a 3a

was convicted and sentenced to pay a fine of $1,000 and

to serve six months in the parish prison. The

assignments of error urged on this appeal are grouped

into six arguments.

whole, appeals to the prurient interest; and the hardcore

sexual conduct, as specifically defined herein, is present-

ed in a patently offensive way; andthe conduct taken asa

eee acks serious literary, artistic, political, or scientific

value.

“Hard core sexual conduct is the public portrayal, for

its own sake, and for ensuing commercial gain of:

“(a) Ultimate sexual acts, normal or perverted, actual,

simulated or animated, whether between human beings,

animals, or an animal and a human being; or

“(b) Masturbation, excretory functions or lewd ex-

hibition, actual, simulated or animated, of the genitals,

pubic hair, anus, vulva, or female breast nipples; or

“(c) Sadomasochistic abuse, meaning actual,

simulated or animated, flagellation or torture by or upon

a person who is nude or clad in undergarments or in a

costume which reveals the pubic hair, anus, vulva,

a or female breast nipples, or in the condition of

ing fettered, bound, or otherwise physically restrain-

ed, on the part of one so clothed; or

“(d) Actual, simulated, or animated touching, caress-

ing, or fondling of, or other similar physical contact with

a pubic area, anus, female breast nipple, covered or ex-

ed, whether alone or between humans, animals, or a

uman and an animal, of the same or opposite sex, in an

act of apparent sexual stimulation or gratification; or

“(e) Actual, simulated, or practi stimulation of a

human genital organ by any device whether or not the

device is delenit manufactured, or marketed for such

urpose.

“(3) Sale, allocation, consignment, distribution, dis-

semination, advertisement, exhibition, or dis lay of

obscene material, or the preparation, oh > in

publication, or printing of obscene material for sale,

allocation, consignment, distribution, advertisement, ex-

hibition, or display.

“Obscene material is any tangible work or thing which

the trier of fact determines (a) that the average person

applying contemporary community standards would

find, taken as a whole, appeals to the prurient interest,

and (b) depicts or describes in a patently offensive way,

hard core sexual conduct specifically defined in

Paragraph (2) above; and (c) the work or t ing taken asa

whole lacks serious literary, artistic, political, or scientific

value.

“(4) Requiring as a condition toa sale, allocation, con-

PB ey danny for resale of any paper, magazine,

book, periodical, or publication to a purchaser or con-

signee that such purchaser or consignee also receive or

accept any obscene material, as defined in Paragraph (3)

above, for resale, distribution, display, advertisement, or

exhibition purposes; or denying or threatening to deny a

franchise to, or oo a a regen on or against, a per-

son by reason of his - usal to accept, or his return of,

ene material.

“Sls) Sokctetion or enticement of an unmarried per-

son under the age of seventeen years to commit any act

prohibited by Paragraphs (1), (2), or (3) above. .

“(6) Advertisement, exhibition, or display of sexua

violent material. ‘Violent material’ is any tangible wor

or thing which the trier of facts determines depicts fees

or simulated patently offensive acts of violence, includ-

ing but not limited to, acts depicting sadistic ev ge

whisein , beatings, torture, and mutilation of t :

human Tole as described in Subparagraph (c) o'

Paragraph (2) of Subsection A herein.

. Except for those motion pictures, printed

meer a photographic materials showing actual ul-

timate sexual acts or simulated or animated ultimate er

ual acts when there is an explicit, closeup depiction Ms

human genital organs so as to give the appearance of the

consummation of ultimate sexual acts, no person, ope

or corporation shall be arrested, charged, or indicted =

any violations of a provision of this Section until oer

time as the material involved has first been the subject re)

an adversary hearing under the provisions of this Sec-

tion, wherein such person, firm, or corporation is madea

defendant and, after such material is declared by the

court to be obscene, such person, firm, or corporation

continues to engage in the conduct prohibited by or

Section. The sole issue at the hearing shall be whether

the material is obscene.”

4a

Briefly, the record facts giving rise to this prosecu-

tion show that defendant is the owner of the Fast Stop

Food Store No. 3 at the corner of Elysian Fields and

Filmore Avenue in a _ predominantly residential

neighborhood of the City of New Orleans. It is a con-

venience store where food; liquor, and popular

magazines are sold, including such sexually oriented

magazines as “Playboy”, “Penthouse”, “National

Screw”, and “Oui”. Before this prosecution defendant

appeared before the City Council on a complaint by a

neighborhood Catholic school that these and other sex-

ually oriented magazines were on display in a con-

spicuous place at the center of his store in such a

manner that school children could see and buy them. At

the Council’s suggestion these sexually oriented

magazines were placed in a separate rack at the far end

of the cashier’s counter so that only the titles were visi-

ble, and the matter was dismissed.

Officer Rickey Bruce entered defendant’s store on

July 29, 1977 to investigate obscenity violations. From

the book rack at the end of the cashier’s counter he

selected two magazines, “Climax” and “National

Screw”, issue of July 1977, which he purchased, paying

$4.18 for both. After ascertaining that defendant was

the owner of the store, Officer Bruce obtained an

arrest warrant and Gambino was arrested. The

magazine “National Screw”, issue of July 1977, is the

subject of this prosecution.

Assignments 1, 2, 3, 14, 15, 16 and 19 — Essentially

these assignments question whether the magazine

5a

depicts “actual ultimate sexual acts or simulated or

animated ultimate sexual acts” as set forth in Section

F(1) of the Obscenity Act.

‘

The Obscenity Act prohibits the arrest of any person

for violating its provisions unless they have been af-

forded a prior adversary hearing at which the suspect

has been made a defendant and the material has been

found to be obscene. Section F(1) of the Act creates an

exception to this prohibition permitting an arrest and

prosecution without a prior adversary hearing when

the obscene material shows “ actual ultimate sexual acts

or simulated or animated ultimate sexual acts when

there is an explicit, close up depiction of human genital

organs so as to give the appearance of consummation of

ultimate sexual acts.”

If this Court agrees with the jury that the four pic-

tures in question in this magazine depict ultimate sex-

ual acts with explicit, close-up depiction of human

genital organs so as to give the appearance of consum-

mation of ultimate sexual acts then the arrest and

prosecution of defendant without a prior adversary

hearing was not prohibited by law.

All four pictures are photographs of women engaged

in acts of cunnilingus. At least three of the photo-

graphs depict the vaginas of participants. In one photo-

graph there is an explicit, close-up depiction of a

woman’s vagina. All photographs give the appearance

of the consummation of the ultimate sexual act of cun-

6a

nilingus. In two of the photographs all of the subjects

are nude; in another one of the female participants is

partially clothed; and the other, aclose-up photograph,

only portrays the vagina of one participant and the

tongue, mouth, face, head, hand and shoulder of the

other.

In addition to the finding of the jury, the trial judge

observed in his reasons for the sentence imposed that

he had reviewed the magazine and in his opinion the

photographs did depict ultimate sexual acts. He stated,

moreover, that the magazine had no literary, artistic,

political or scientific value. In fact, he declared, the

publication was trash and should not be sold in New

Orleans. To impose a lesser sentence, he held, would

depreciate the nature of defendant's crime.

An argument is made by the defense that his convic-

tion was erroneous because none of the photographs

depict penetration, which he asserts is essential to an

ultimate sex act. Reliance is placed upon the definition

of rape to support this argument. Because no penetra-

tion is depicted, the defense argues, the photograph

depicts only imminent lesbian activity, acts not con-

sidered obscene in Huffman v. United States, 163

U.S.App.D.C. 417, 502 F.2d 419 (1974). In the Huffman

Case the material consisted of collections of photo-

graphs of two nude or near-nude females shown un-

dressing, caressing, fondling and embracing each

other. The photographs were accompanied by brief

written material, including a trilingual statement pur-

portedly addressed to “serious students of art.”

7a

Photographs at issue in the case at bar cannot be

compared with the lesbian activity in the Huffman Case.

Those at issue here are explicit, ultimate acts of deviate

sexual conduct, not the remote foreplay found in Huff-

man. In the instant case the photographs depict activity

which falls within the standard of hard-core sexual

conduct formulated in Miller v. California, 513 U.S. 15,

93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). That standard

permits regulation of “patently offensive repre-

sentations or descriptions of ultimate sexual acts, nor-

mal or perverted, actual or simulated.”

Furthermore, the statutes on rape relied upon to

support the defense contention that the conduct at

issue here was not the ultimate sex act reprobated by

the Obscenity Act are inapplicable. La.Rev.Stat. 14:41-

41.1.2 Those acts apply to rapes, both heterosexual and

homosexual, involving vaginal and anal intercourse.

Sexual acts prohibited by those statutes involving at

least one man are unlike the deviant sexual acts at issue

here involving only women. The rape statutes cited do

not apply either factually or legally to the case at bar.

2 La.Rev.Stat. 14:41: i

“Heterosexual rape is the act of sexual intercourse

with a female person not the wife of, or judicially

separated from bed and board from, the offender,

committed without her lawful consent. Emission is not

necessary; and any sexual penetration, vaginal or anal,

however slight, is sufficient to complete the crime.”

La.Rev.Stat. 14:41.1:

“Homosexual rape is the act of anal sexual intercourse

with a male person committed without his consent. Emis-

sion is not necessary, and any anal sexual penetration,

however slight, is sufficient to complete the crime.”

8a

Thus in our independent review we agree with the

jury, which is the repository of community standards

in this case, that the photographs in question depict the

“ultimate sexual acts” contemplated by Section F(1).

Accordingly, the trial judge correctly denied defen-

dant’s motion to quash, motion to suppress, and mo-

tion for a prior hearing which are at issue in these

assignments of error.

Assignment 18 — Alternatively, the defense contends,

that the exception to a prior adversary hearing con-

tained in Section F(1) of the Obscenity Act is invalid

because the term “ultimate sexual acts” is unconstitu-

tionally vague. The prior adversary hearing generally

required by the Act was therefore a prerequisite to this

prosecution. Consequently, denial of the motion in

arrest of judgment based upon this premise was error,

according to defendant. In Miller v. California, 413 U.S.

15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the phrase

“ultimate sexual acts, normal or perverted, actual or

simulated” were approved as properly constituting the

hard-core sexual conduct which states may regulate.

The standards and definition approved in Miller v. Cali-

fornia are largely the bases of Louisiana’s Obscenity Act.

A widespread use of the phrase has acquired a well-

known and acceptable meaning, readily comprehended

by the average person. As we read the defense brief, it

is conceded that the phrase includes coitus, anal and

oral intercourse. The photographs at issue are ex-

amples of ultimate sexual acts. In the apt words of Mr.

Chief Justice WARREN, defendant in this case was

9a

“plainly engaged in the commercial exploita-

tion of the morbid and shameful craving for

materials with prurient effect. I believe that

the State and Federal Governments can con-

stitutionally punish such conduct. That is all

that these cases present to us, and that is all

we need to decide.” Roth v. United States, 354

U.S., 476 at 496, 77 S.Ct. 1304 at 1315, 1

L.Ed.2d 1498 at 1513.

Therefore, the exception to the requirement of a

prior adversary hearing is couched in constitutionally

acceptable language under approved standards of stat-

utory construction. State v. Skinner, 358 So.2d 280

(La.1978),

Assignments 17 and 20 — Defendant argues that the

trial judge erred in refusing to grant his motion for

directed verdict and motion for a new trial.

The trial was before a jury in which case a directed

verdict is not permitted. La.Code Crim.Pro. art. 778.

Basically, the motion for a new trial adopts the

proposition that the magazine is not obscene. Although

the magazine may contain pictures showing hard-core

sexual conduct, the argument goes, it does not, taken as

a whole, lack “serious literary, artistic, political or

scientific value”. This is so, according to defendant,

because the obscene pictures occur on about fifty per-

cent of the magazine’s pages while the rest of the

10a

publication is devoted to material containing “serious

literary, artistic, political or scientific value.”

Therefore, the magazine does not “taken as a whole”

meet the test of prohibited obscenity set forth in Sec-

tion A(2) of the Act.

The contention is without merit. Conceding arguen-

do that some material in the magazine is of a serious

literary, artistic, political or scientific value, that

material has no rational relationship to that found by

the jury, the trial judge and this Court to be hard-core

sexual depictions. It is the offensive depiction of sexual

conduct itself which must have “serious literary, ar-

tistic, political or scientific value” to merit First Amend-

ment protection. It has often been held that that

obscene material is not protected by the First Amend-

ment. Miller v. California, supra. Placing prohibited

obscene depictions in a magazine, book, or newspaper

which contain other, unrelated articles or pictures of

literary, etc., value does not suffice to make obscenity

legally acceptable. “A quotation from Voltaire in the

flyleaf of a book will not constitutionally redeem an

otherwise obscene publication.” Kois v. Wisconsin, 408

U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972).

Assignments 21 and 22 — The defense contends that

the State offered no evidence of community standards

and the only evidence on the subject was offered by

defendant’s expert. This evidence, the defendant

argues, indicates that the average man would not find

“National Screw”, July 1977, to be obscene. Thus,

lla

defendant concludes, there is no evidence in the record

that the controverted magazine lacked serious literary,

artistic, political or scientific value.

The prosecution in an obscenity case need not offer

expert testimony regarding community standards.” [A]

juror is entitled to draw on his own knowledge of the

views of the average person in the community or

vicinage from which he comes for making the required

determination.” Hamling v. United States, 418 U.S. 87, 94

S.Ct. 2887, 41 L.Ed.2d 590 (1974).

And no error occurred because the jury did not

accept the testimony of defendant's expert. It is the

function and prerogative of the jury to evaluate the

evidence and accept or reject what is presented. They

are not bound to accept the opinion of any expert in

weighing the evidence of obscenity.

Assignment 13 — Incompetent “scientific” evidence

was introduced by the State in the course of cross-

examining defendant’s expert witness, the defense

asserts. Because of this, it is claimed, the jury rejected

the testimony of the defendant’s expert witness.

After extensive testimony on direct examination

defendant's expert concluded that “National Screw”,

July 1977, was not obscene, contained material of a

literary, scientific and political value and would not be

considered obscene by the average adult in New

Orleans. On cross-examination he was asked, over

12a

defense objection, if he agreed with a statement of Dr.

Vanderhaig, a prominent psychiatrist which appeared

in the local paper to this effect: “Pornography invites us

to recognize other persons purely as means to our sex-

ual pleasure and exploit them as we exploit animals.”

He answered, “I agree with part of it. Idon’t agree with

the part about exploitation.”

In his per curiam to this assignment of error the trial

judge wrote:

“Defense counsel contends that court erred

in allowing the State to read a quotation to Dr.

Koenig [defendant’s expert] during cross-

examination.

“Cross examination of an expert witness by

reference to medical and other scientific

authorities is generally sanctioned for pur-

poses of testing his knowledge, background

and accuracy and to such ends, quotations

may be read to witnesses from standard

treatises provided that the object is not to get

their contents and opinions of the author

before the jury. State v. Sauls [226 La. 694] 77

So.2d 8 (1955). In the present case the quota-

tion may not have been from a standard

treatise, but from the newspaper a respected

literary source. The article discussed was by a

well-known psychologist and was mentioned

strictly for the purpose of discussing Dr.

Koenig’s views on the subject matter.”

13a

In our view the trial judge correctly explained the

basis for his ruling, and this assignment has no merit.

Assignments 23 and 24 — A claim is made that the

sentence imposed is cruel, excessive and unusual. The

sentence is within the limits prescribed by statute: Not

less than one hundred dollars nor more than one thou-

sand dollars, or imprisoned for not more than one year

or both. La.Rev.Stat. 14:106G.

Sentence was imposed by the trial judge in keeping

with the guidelines set forth in Article 894.1 of the

Code of Criminal Procedure. Compliance with that ar-

ticle averts the possibility of excessive or capricious

sentences. It assures that the sentencing authority is

given adequate information and guidance in sentencing

and provides reviewable standards.

A sentence imposed by a judge within the statutory

limits is generally not subject to review. State v. Pierson,

296 So.2d 324 (La.1974); State v. Polk, 258 La. 738, 247

So.2d 853 (1971).

The trial judge has not abused his discretion in this

sentencing.

For the reasons assigned, the conviction and

sentence are affirmed.

DENNIS, J., concurs and assigns reasons.

14a

TATE, J., dissents and assigns reasons.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents and assigns reasons.

DENNIS, Justice, concurring.

I join in the majority opinion for the reason that the

photographic materials do show “actual ultimate sex-

ual acts” in that they depict “explicit, closeup depiction

of human genital organs so as to give the appearance of

the consummation of ultimate sexual acts.” In my opin-

ion the “ultimate sexual act” is neither ambiguous nor

intended by the legislature to be equated with penetra-

tion. Instead its meaning encompasses all behavior

clearly having no goal other than sexual penetration.

The pictures of imminent oral-vaginal intercourse un-

mistakably give the aj»xearance of the consummation

of ultimate sexual acts. Although actual penetration is

not depicted, any reasonable viewer would co clude

that the scenes are those of the finish or completion,

i.e., the consummation, of the sexual act, and not depic-

tions of mere foreplay which may or may not lead to

sexual penetration.

TATE, Justice, dissenting.

I respectfully dissent.

In my opinion: (1) The intended cunnilingus’s however

obscene, is not the depictions of attempted “ultimate sex-

15a

ual acts” so as to be hard-core pornography within the

meaning of Obscenity Act, which only in such event

permits arrest and conviction without a prior adver-

sary hearing to determine whether the offensive depic-

tion is a criminal offense; (2) If they are, then the stat-

ute is unconstitutionally vague in this respect, concern-

ing as it does First Amendment rights of free press at

issue; (3) In any event, the sentence imposed is ex-

cessive and should be set aside.

DIXON, Justice (dissenting).

I respectfully dissent, believing a prior adversary

hearing is required under the Louisiana statute before

defendant can be prosecuted.

CALOGERO, Justice, dissenting.

I respectfully dissent, being of the opinion that the

material at issue depicts no “ultimate sexual act” and

thus should have been the subject of a prior, adversary

determination of the obscenity issue.

léa

SUPREME COURT

STATE OF LOUISIANA

NEW ORLEANS

UNITED STATES OF AMERICA

STATE OF LOUISIANA

SUPREME COURT OF THE

STATE OF LOUISIANA

New Orleans, 70112

I, Andrew J. Falcon, Deputy Clerk, Supreme Court of

the State of Louisiana, do hereby certify that the Court

took the following action on October 5, 1978, in the

matter entitled STATE OF LOUISIANA v. WARREN

GAMBINO, No. 61,728

“REHEARING REFUSED”

IN WITNESS WHEREOTF, I hereunto sign my name

and affix the seal of the Court aforesaid, at the City of

New Orleans, this the 4th day of December A.D., 1978.

Is) ANDREW J. FALCON

Deputy Clerk

Supreme Court of the

State of Louisiana

[SEAL}

17a

LOUISIANA REVISED STATUTES 14:

§ 106. Obscenity

A. The crime of obscenity is the intentional:

(1) Exposure of the genitals, pubic hair, anus, vulva

or female breast nipples in any location or place open to

the view of the public or the people at large such as a

street, highway, neutral ground, sidewalk, park, beach,

river bank or other place or location viewable

therefrom with the intent of arousing sexual desire.

(2) Participation or engagement in, or manage-

ment, production, presentation, performance, promo-

tion, exhibition, advertisement, sponsorship or display

of, hard core sexual conduct when the trier of fact

determines that the average person applying contem-

porary community standards would find that the con-

duct, taken as a whole, appeals to the prurient interest;

and the hard core sexual conduct, as specifically defined

herein, is presented in a patently offensive way; and the

conduct taken as a whole lacks serious literary, artistic,

political or scientific value.

Hard core sexual conduct is the public portrayal, for

its own sake, and for ensuing commercial gain of:

(a) Ultimate sexual acts, normal or

perverted, actual, simulated or animated,

whether between human beings, animals or

an animal and a human being; or

18a

(b) Masturbation, excretory functions or

lewd exhibition, actual, simulated or animat-

ed, of the genitals, pubic hair, anus, vulva or

female breast nipples; or

(c) Sadomasochistic abuse, meaning ac-

tual, simulated or animated, flagellation or

torture by or upon a person who is nude or

clad in undergarments or in a costume which

reveals the pubic hair, anus, vulva, genitals or

female breast nipples, or the condition of be-

ing fettered, bound or otherwise physically

restrained, on the part of one so clothed; or

(d) Actual, simulated or animated, touch-

ing, caressing or fondling of, or other similar

physical contact with, a pubic area, anus,

female breast nipple, covered or exposed,

whether alone or between humans, animals or

a human and an animal, of the same or op-

posite sex, in an act of apparent sexual

stimulation or gratification; or

(e) Actual, simulated or animated stimula-

tion of a human genital organ by any device

whether or not the device is designed,

manufactured and marketed for such pur-

pose.

(3) Sale, allocation, consignment, distribution, dis-

semination, advertisement, exhibition or display of

19a

obscene material, or the preparation, manufacture,

publication or printing of obscene material for sale,

allocation, consignment, distribution, advertisement,

exhibition or display.

Obscene material is any tangible work or thing

which the trier of fact determines (a) that the average

person applying contemporary community standards

would find, taken as a whole, appeals to the prurient in-

terest; and, (b) depicts or describes in a patently offen-

sive way, hard core sexual conduct specifically defined

in Paragraph (2) above; and (c) the work or thing taken

as a whole lacks serious literary, artistic, political or

scientific value.

(4) Requiring as a condition to a sale, allocation,

consignment or delivery for resale of any paper,

magazine, book, periodical or publication to a

purchaser or consignee that such purchaser or con-

signee also receive or accept any obscene material, as

defined in Paragraph (3) above, for resale, distribution,

display, advertisement or exhibition purposes; or,

denying or threatening to deny a franchise to, or im-

posing a penalty on or against, a person by reason of his

refusal to accept, or his return of, such obscene

material.

(5) Solicitation or enticement of an unmarried per-

son under the age of seventeen years to commit any act

prohibited by Paragraphs (1), (2) or (3), above.

20a

(6) Advertisement, exhibition or display of violent

material. “Violent material” is any tangible work or

thing which the trier of facts determines depicts actual

or simulated patently offensive acts of violence, includ-

ing but not limited to, acts depicting sadistic conduct,

whippings, beatings, torture. and mutilation of the

human body.

B. Lack of knowledge of age or marital status shall

not constitute a defense.

C. No theatre employee or bookstore employee

acting within the course and scope of a bona fide con-

tract of employment wherein such employee is

employed by any person, firm or corporation exhibit-

ing motion pictures or selling books, periodicals or

other published materials pursuant to a license or per-

mit to exhibit or sell the same issued by the State of

Louisiana or any municipality, parish or consolidated

city-parish government therein, shall be guilty of a

violation of this section as a result of his possession, ex-

hibition or sale within the course and scope of such

employment provided such employee has no

managerial duties and has no financial interest in the

possession, exhibition or sale of any materials other

than wages from his said employment, unless there is

no person having managerial duties or a financial in-

terest in the possession, exhibition or sale of obscure!

materials subject to immediate arrest and prosecution.

D. The provisions of this section do not apply to

recognized and established schools, churches,

21a

museums, medical clinics, hospitals, physicians, public

libraries, governmental agencies, quasi-governmental

sponsored organizations and persons acting in their

capacity as employees or agents of such organization.

For the purpose of this paragraph, the following

words and terms shall have the respective meanings

defined as follows:

(1) Recognized and established schools means

schools having a full time faculty and pupils, gathered

together for instruction in a diversified curriculum.

(2) Churches means any church, affiliated with a

national or regional denomination.

(3) Physicians means any licensed physician or psy-

chiatrist.

(4) Medical clinics and hospitals mean any clinic or

hospital of licensed physicians or psychiatrists used for

the reception and care of the sick, wounded or infirm.

E. This section does not preempt, nor shall any-

thing in this section be construed to preempt, the

regulation of obscenity by municipalities, parishes and

consolidated city-parish governments; however, in

order to promote uniform obscenity legislation

throughout the state, the regulation of obscenity by

municipalities, parishes and consolidated city-parish

governments shall not exceed the scope of the

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regulatory prohibitions contained in the provisions of

this section.

F. (1) Except for those motion pictures, printed

materials and photographic materials showing actual

ultimate sexual acts or simulated or animated ultimate

sexual acts when there is an explicit, close-up depiction

of human genital organs so as to give the appearance of

the consummation of ultimate sexual acts, no person,

firm or corporation shall be arrested, charged or indict-

ed for any violation of a provision of this section until

such time as the material involved has first been the

subject of an adversary hearing under the provisions of

this section, wherein such person, firm or corporation

is made a defendant and, after such material is de-

clared by the court to be obscene, such person, firm or

corporation continues to engage in the conduct

prohibited by this section. The sole issue at the hear-

ing shall be whether the material is obscene.

(2) The hearing shall be held before the district

court having jurisdiction over the proceedings within

seventy-two hours after receipt of notice by the per-

son, firm or corporation. The person, firm or corpora-

tion shall be given notice of the hearing by registered

mail or by personal service on the owner, manager or

other person having a financial interest in the material;

provided, if there is no such person on the premises,

then notice may be given by personal service on any

employee of the person, firm or corporation on such

premises. The notice shall state the nature of the viola-

23a

tion, the date, place and time of the hearing, and the

right to present and cross examine witnesses.

(3) The state or any defendant may appeal from a

judgment. Such appeal shall not stay the judgment.

Any defendant engaging in conduct prohibited by this

section subsequent to notice of the judgment, finding

the material to be obscene, shall be subject to criminal

prosecution notwithstanding the appeal from the judg-

ment.

(4) Nodetermination by the district court pursuant

to this section shall be of any force and effect outside

the judicial district in which made; and no such deter-

mination shall be res judicata in any proceeding in any

other judicial district. In addition, evidence of any hear-

ing held pursuant to this section shall not be competent

or admissible in any criminal action for the violation of

any other section of this title; provided, however, that

in any criminal action, charging the violation of any

other section of this title, against any person, firm or

corporation that was a defendant in such hearing, in-

volving the same material declared to be obscene under

the provisions of this section, then evidence of such

hearing shall be competent and admissible as bearing

on the issue of scienter only.

G. Whoever commits the crime of obscenity shall

be fined not less than one hundred dollars nor more

than one thousand dollars, or imprisoned in the parish

prison for not more than one year, or both.

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When a violation of Paragraphs (1), (2) or (3) of Sub-

section A of this section is with, or in the presence of,

an unmarried person under the age of seventeen years,

the offender shall be fined not more than two thousand

dollars, or imprisoned for not more than five years with

or without hard labor, or both.

LOUISIANA REVISED STATUTES 14:

§ 41. Rape; heterosexual; defined

Heterosexual rape is the act of sexual intercourse

with a female person not the wife of, or judicially

separated from bed and board from, the offender,

committed without her lawful consent. Emission is not

necessary; and any sexual penetration, vaginal or anal,

however slight, is sufficient to complete the crime.

LOUISIANA REVISED STATUTES 14:

§ 41.1 Rape; homosexual; defined

Homosexual rape is the act of anal sexual intercourse

with a male person committed without his consent.

Emission is not necessary, and any anal sexual penetra-

tion, however slight, is sufficient to complete the

crime.

25a

LOUISIANA REVISED STATUTES 14:

§ 89. Crime against nature

Crime against nature is the unnatural carnal copula-

tion by a human being with another of the same sex or

opposite sex or with an animal, except that anal sexual

intercourse between two human beings shall not be

deemed as a crime against nature when done under any

of the circumstances described in R.S. 14:41, 14:41.1,

14:42, or 14:43. Emission is not necessary; and, when

committed by a human being with another, the use of

the genital organ of one of the offenders of whatever

sex is sufficient to constitute the crime.

Whoever commits the crime against nature shall be

fined not more than two thousand dollars, or im-

prisoned, with or without hard labor, for not more than

five years, or both.