Petition for Writ of Certiorari — Bailey v. Illinois

BO=1009 ) [sar Sinare marca]

FILED

BEC 18 1984

No

CLIERK

——— ee

ee A OL OL LLCO LOD, ~

In The

Supreme Court of the United States

October Term, 1984

°

JON C. BAILEY, RANDY E. MeCASLIN,

JOHN R. FINDLAY, and RODNEY LEIFHEIT,

Petitioners,

vs.

STATE OF ILLINOIS,

Respondent.

fy

Ww

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS,

SECOND DISTRICT

°

J. Steven Becketr

Reno, O’Byrne & Keptey, P.C.

501 West Church Street

P.O. Box 693

Champaign, IL 61820

(217) 352-7661

Attorney for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

ALEXANDER L. STEVAS,

QUESTIONS PRESENTED

Whether, under current First Amendment standards,

charging instruments in criminal prosecutions under the

illinois Obscenity Statute must specify the essential com-

ponents of Illinois’ definition of obscenity because the

statute, on its face and as construed, is confusing and

ambiguous.

il

TABLE OF CONTENTS

Sussect InpEex

Pages

Questions Presented sisianpednnsssititestasibadiacated i

Table of Contents Eris olOtereds Mistletoe Sexy otra rs wn mer =

CR TR hoo eee eee 2

IOI, stectnwesiissnistitinsaniaktninctadaldinicieieidieuae ata manana 2

Constitutional and Statutory Provisions Involve .......... 2

IIE OE TD CIO ancien eomelaedione 3

Reasons for Granting the Writ 0.020 ecccceeeeeeeeeeeeeee 6

Conclusion cuisuiiadaipeaaeaalae g

APPENDIX INDEX

Opinion of the Second District Appeilate Court

fer the Dinte of TRG Wind App. 1

Order of Illinois Supreme Court denying leave

FE ane MMMM MERE i eet y Cl. im Fay App. 5

United States Constitution, First Amendment and

Wrowmrteomttn Armee anncssccsisincniktcnscnicmice reac App. 5

Illinois Obscenity Statute, Ch. 38, §11-20, Ill. Rev.

TINO, xssnstacnsetscneitatianeactaammaetanteaiimana ne App. 7

TABLE OF AUTHORITIES

CAsEs

Hamling v. United States, 418 U.S. 87 (1974) 2 .... 7

J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482

(9th Cir. 1984), probable jurisdiction noted,

Evkenberry v. J-R Distributors, Inc., — U.S. —,

105 S.Ct. 76 (1984) oeeecvnevnmennnenenn aoe

Memoirs v. Massachusetts, 383 U.S. 415 (1966) 0. 4,8

lii

TABLE OF AUTHORITIES—Continued

Pages

Miller v. California, 413 U.S. 15 (1973) oe 4,6, 7,8

People v. Gould, 60 Tli.2d 159, 324 N.E.2d 412

Te aac cll casein ine 8

People v. Ridens, (Ridens 1), 51 Ill.2d 410, 282

N.E.2d 691 (197 2), vacated and remanded as

Ridens v. Illinois, 413 U.S. 912 (1973) oo 4,8

People v. Ridens, (Ridens 11), 59 Tll.2d 362, 321

N.E.2d 264 (1974) 3, 4,8

People v. Stromblad, 74 11l.2d 35, 383 N.E.2d 969

NET BEC ev AR NM hoe OS Ee 4

People v. Vavyrs, 47 TlLApp.2d 258, 198 N.E.2d

coe Seeee? oo... Area tN Ege Ae a ne 5

People v. Ward, 63 I1l.2d 437, 349 N.E.2d 47 (1976)... = 8

Roth v. United States, 354 U.S. 476 (1957) an. 4,8

Ward v. Illimots, 431 U.S. 767 (1977) nnn cceeeecesncencesneeceeeneee 4

STATUTES AND CONSTITUTIONAL PROVISIONS

Illinois Obscenity Statute, Ch. 38, §11-20, Illinois

Revised Statutes 20000. a wns Foe

United States Code, Title 18, §1461 00 7

United States Code, Title 28, §1257(3) oo ccccccsneee 2

United States Constitution, First Amendment

2, 4, 5, 6, 7, 8, 9

United States Constitution, Fourteenth Amend-

ment a ee 2, 6,9

No.

In The

Supreme Court of the United States

October Term, 1984

>)

JON C. BAILEY, RANDY E. MeCASLIN,

JOHN R. FINDLAY, and RODNEY LEIFHEIT,

Petitioners,

VS.

STATE OF ILLINOIS,

Respondent.

co)

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS,

SECOND DISTRICT

>)

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the Appellate

Court of the State of Illinois, Second District, entered on

June 27, 1984.

o

OPINION BELOW

The opinion of the Appellate Court of the State of

Illinois, Second District, is reported at 125 Ill.App.3d 346,

465 N.E.2d 979 (1984). A copy of the opinion is included

in the Appendix as Exhibit A.

>)

JURISDICTION

Jurisdiction in this cause is premised upon 28 U.S.C.

§1257(3) for review by certiorari of the decision of the

Illinois Appellate Court, Second District. A written opin-

ion was issued by that court on June 27, 1984. Petitioners

sought leave to appeal from the Illinois Supreme Court in

a timely fashion. On October 2, 1984, the Illinois Supreme

Court denied their petition for leave to appeal. A copy

of the order denying leave to appeal is included in the

Appendix as Exhibit B.

=)

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Relevant portions of the First and Fourteenth Amend-

ments to the Constitution oi the United States, and the

Illinois Obscenity Statute, Ch. 38, §11-20, Ill.Rev.Stat., are

set forth in the Appendix as Exhibit C.

°

STATEMENT OF THE CASE

Petitioners, all employees of the Denmark Bookstore,

Aurora, Illinois, were each charged with violating the

Illincis Obscenity Statute, Ch. 38, §11-20, Ill.Rev.Stat. The

charging instrument in each case alleged that the peti-

tioner sold obscene material to an individual, which ma-

terial:

[W ]hen considered as a whole, has as its predominate

appeal to prurient interest, that is, a shameful or mor-

bid interest in nudity, sex or excretion and which goes

substantially beyond customary limits of candor in

description or representation of such matters and has

no serious, literary, artistic, political or educational

value.

The petitioners filed motions to dismiss, alleging, inter

alia, that the complaints were insufficient for their failure

to include the statement that the work was “utterly with-

out redeeming social value” as a definitional element of

the term obscenity. The Kendall County trial court granted

the petitioners’ motions to dismiss, basing its holding on

People v. Ridens, 59 Ill.2d 362, 321 N.E.2d 264 (1974). The

respondent argued that it was not required to ailege the

definitional elements set forth in Ridens; rather, that it

is only required to allege a complaint in the statutory lan-

guage. Respondent further argued that any definitional

language contained in the complaints was mere surplusage

which had no affect on the validity of the complaints.

The Illinois Obscenity Statute, Ch. 38, §11-20, Ill.Rev.

Stat., was enacted in 1961 and has not been substantively

amended by the legislature since that time. The statutory

definition of obscenity is:

A thing is obscene if, considered as a whole, its pre-

dominate appeal is to prurient interest, that is, a

shameful or morbid interest in nudity, sex or excre-

tion, and if it goes substantially beyond customary

limits of « ndor in description or representation of

such matters. A thing is obscene even though the ob-

scenity is latent, as in the case of undeveloped photo-

praghs.

Ch. 38, §11-20(b), Tl. Rev.Stat.

The statute has been construed to follow the standards for

obscenity set forth by this Court in Memoirs v. Massachu-

setts, 383 U.S. 415 (1966) and Roth v. United States, 354

U.S. 476 (1957). People v. Ridens, (Ridens I), 51 Ill.2d

410, 282 N.E.2d 691 (1972), vacated and remanded as

Ridens v. Illinois, 413 U.S. 912 (1973). In 1974, the stat-

ute was construed to embrace the standards set forth by

this Court in Milier v. California, 413 U.S. 15 (1973), al-

though the third definitional element “utterly without re-

deeming social value” was retained. People v. Ridens,

Ridens (II), 59 Tll.2d 362, 321 N.E.2d 264 (1974). The

extent of the adoption of the Miller standards peaked when,

in 1977, this Court recognized that the Illinois Supreme

Court had meant to engraft the Miller examples of “pat-

ently offensive sexual conduct” under part (b) of the

tripartite test for obscenity, in Ward v. Illinois, 4381 U.S.

767 (1977). The Illinois Supreme Court has continued

to adhere to this judicial construction of the Illinois Ob-

scenity Statute. People v. Stromblad, 74 Ill.2d 35, 383

N.E.2d 969 (1978). With this history, the trial court in

the instant case dismissed the complaints, recognizing First

Amendment notice requirements for obscenity cases.

The respondent filed notices of appeal from the orders

dismissing the complaints in each case to the Appellate

Court of the State of Illinois, Second District, where the

eases were consolidated for appeal. In the Second District

Appellate Court petitioners argued that the trial court’s

ruling was proper, in that the complaints were legally de-

fective for asserting inapplicable elements of the offense

of obscenity under Illinois law, and further, that the Illi-

nois Obscenity Statute failed to give proper notice to puta-

tive defendants.

The Second District Appellate Court reversed the trial

court’s orders granting the petitioners’ motions to dismiss,

holding that it was unnecessary to set forth the elements

of the definition of obscenity, relying on People v. Vavrys,

47 Dl. App.2d 258, 198 N.E.2d 187 (1964), and further, that

such definitional statement would constitute mere surplus-

age. The court also rejected petitioners’ First Amendment

claims that the statute failed to give proper notice to de-

fendants, which therefore required that the terms of the

definition of obscenity be set forth in the charging instru-

ment. Basing its reasoning on the Ridens decision, the

court concluded it was the statute itself and not the charg-

ing instrument which must give advance warning to a de-

fendant of the meaning of obscenity.

Petitioners sought timely review by the Illinois Su-

preme Court, filing a petition for leave to appeal. Peti-

tioners again asserted that the Illinois Obscenity Statute

fails to give proper notice to defendants, and that because

the essential elements for the charge of obscenity do not

exist facially in the Illinois Obscenity Statute, the elements

must be asserted in the charging instruments to adhere

to First Amendment standards. Their petition for leave

6

to appeal was denied on October 2, 1984. The mandate of

the Illinois Supreme Court has been stayed pending review

by this Court.

In the trial court, the appellate court, and by petition

for leave to appeal in the [Illinois Supreme Court, the peti-

tioners have asserted their constitutional claims under

the First and Fourteenth Amendments to the Constitu-

tion of the United States. The Second District Appellate

Court rejected those claims, and the Illinois Supreme Court

denied leave to appeal.

LY

Vv

REASONS FOR GRANTING THE WRIT

Under The Notice Requirements Of Miller v. California,

413 U.S. 15 (1973), A Criminal Complaint Charging A

Violation Of The Illinois Obscenity Statute Must Specify

The Tripartite Definition Of Obscenity And Designated

Sexual Conduct Of Alleged Obscene Works To Be Con-

stitutionally Sufficient.

This Court has recognized a constitutional responsi-

bility in criminal obscenity statutes to afford notice to a

bookseller that his conduct may run afoul of the law and

especially of the First Amendment. Such was the pur-

pose and effect of this Court’s pronouncements in Miller

v. California, 413 U.S. 15 (1973), where the Court stated:

Under the holdings announced today, no one will be

subject to prosecution for the sale or exposure of ob-

scene materials unless these materials depict or de-

scribe patently offensive ‘hard core’ sexual conduct

specifically defined by the regulating state law, as

written or construed. We are satisfied that these spe-

7

cific prerequisites will provide fair notice to a dealer in

such materials that his public and commercial activi-

ties may bring prosecution.

413 U.S. at 27.

This fair notice concept is, thus, an essential component

of the First Amendment.

The issue presented by this case is simply stated and

yet is constitutionally significant. What must a charging

instrument contain to meet the Miller notice requirement?

This Court addressed the constitutional sufficiency of an

indictment in the federal context in Hamling v. United

States, 418 U.S. 87 (1974), under 18 U.S.C. $1461. In

Hamling, the Court stated the measuring test regard-

ing the sufficiency of the charging instrument:

It is generally suffi ient that an indictment set forth

the offense in the words of the statute itself, as long

as ‘those words of themselves fully, directly, and ex-

pressly, without any uncertainty or ambiguity, set

forth all the elements necessary to constitute the of-

fence intended to be punished.’ United States v.

Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882).

413 US. at 117.

In applying this test to the indictment in Hamling, the

Court concluded that there was no ambiguity within the

federal obscenity statute and that an indictment merely

alleging that material was obscene was constitutionally

sufficient. The present case, however, presents a distinct-

ly different situation, where the state statute is unconsti-

tutional on its face and the judicial saving constructions

that have been rendered upon it have resulted in a patch-

work quilt of borrowed First Amendment principles that

fail to guide a criminal defendant in the constitutional

sense.

The Illinois Obscenity Statute does not meet the Mil-

ler standards for obscenity on its face. Indeed, the pres-

ent standards for the legal definition of obscenity under

Illinois law are as follows:

(a) the average person, applying contemporary com-

munity standards, would find that the work, taken as

a whole, appeals to prurient interest;

(b) the work depicts or describes, in a patently of-

fensive way, sexual conduct specifically defined by

the applicable state law; and

(c) the material is utterly without redeeming social

value.

People v. Ridens (Ridens I), 51 Til.2d 410, 282 N.Ed.2d

691 (1972), vacated and remanded as Ridens v. Illi-

nois, 413 U.S. 912; People v. Ridens (Ridens II), 59

1L.2d 362, 321 N.E.2d 264 (1974); People v. Ward, 63

I11.2d 437, 349 N.E.2d 47 (1976), aff’d Ward v. Illinois,

431 U.S. 767 (1977); People v. Gould, 60 Til.2d 159,

324 N.E.2d 412 (1975).

A comparison of these essential components of Illinois

obscenity law, and the statutory definition of obscenity,

demonstrates an absolute ambiguity that cannot be re-

solved by the mere allegation that a work is obscene in a

criminal complaint.

This Court has set the constitutional trend for obscen-

ity litigation over the past three decades. In Roth v.

United States, 354 U.S. 476 (1957), Memoirs v. Massachu-

setts, 383 U.S. 415 (1966), and Miller v. California, 413

U.S. 15 (1973), principled efforts were made by the Court

to give clarity and guidance in a troubled and confusing

area of the law. Only recently the Court has again

granted review of a case that squarely puts in issue the

constitutional limits in the First Amendment context of a

@@iees,

9

state obscenity statute. J-R Distributors, Inc. v. Eiken-

berry, 725 F.2d 482 (9th Cir. 1984), probable jurisdiction

noted, Eikenberry v. J-R Distributors, Inc., — U.S. —, 105

S.Ct. 76 (1984). This case, too, would permit the Court to

provide necessary constitutional embellishment under the

First and Fourteenth Amendment.

The trial court here correctly recognized that criminal

complaints containing incorrect averments of the elements

of obscenity should not stand. Indeed, the trial court rec-

ognized the defendants’ rights to First Amendment notice

in these criminal cases. The proper tripartite allegations

for the test of obscenity are essential and, thus, this Court

should grant certiorari to emphasize such notice require-

ments.

CONCLUSION

Because of the significance of the First Amendment

interests at stake in this litigation, this Court should grant

certiorari to review and reverse the holding of the Ap-

pellate Court of the State of Illinois, Second District.

Respectfully submitted,

J. Steven Beckett

Reno, O’Byrne & Keptey, P.C.

501 West Church Street

P.O. Box 693

Champaign, Il. 61820

(217) 352-7661

Attorney for Petitioners

December, 1984

App. 1

APPENDIX

Exhibit A

Nos. 83-393, 83-394,

Cons.

83-395, 83-396.

*

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellant,

v.

JON C. BAILEY, RANDY E. MeCASLIN,

JOHN R. FINDLAY & RODNEY LEIFHEIT,

Defendants-Appellees.

Appeal from the Cireuit Court for the

Sixteenth Judicial Circuit,

Kendall County, Illinois

Publ. In Full

Filed June 27, 1984

JUSTICE VAN DEUSEN delivered the opinion of

the court:

The defendants in these consolidated cases were

charged separately by complaint or amended complaint

with the offense of obscenity in violation of section 11-

20(a)(1) of the Criminal Code of 1961 (Ill.Rev.Stat. 1981,

ch. 38, par. 11-20(a)(1)). The trial court, relying upon

People v. Ridens (1974), 59 Ill.2d 362, cert. denied (1975),

421 U.S. 993, 44 L.Ed.2d 483, 95 S.Ct. 2000, found the com-

plaints to be insufficient because they did not include the

App. 2

third definitional element of tie offense of obscenity,

namely that the materials were ‘‘utterly without redeem-

ing social value.” The court dismissed the complaints

and the State has appealed. The critical issue on this ap-

peal is whether, in addition to setting forth the allegations

of conduct of the defendants which would establish the

elements of the offense of obscenity as set forth in section

11-20(a) of the Criminal Code of 1961, the charging in-

strument in an obscenity case must also set forth the

definitional elements of the term ‘‘obscenity” or “ob-

scene’’ as used in the Illinois obscenity statute. \

We agree with the State and find the case of People

v. Vavrys (1964), 47 Ill.App.2d 258, to be dispositive of

this issue. In Vavrys, the court addressed the same issue,

to wit; the sufficiency of an obscenity information which

alleged the commission of the offense solely in terms of

the elements of the offense as set forth in the statute

itself. The Vavrys court correctly found that it was not

necessary to set forth in the charging instrument the ele-

ments of the definition of obscenity. (47 Ill.App.2d 258,

261-62.) The addition of a statement in the charging in-

strument setting forth that the magazine or movie in

question, taken as a whole, appeals to prurient interests

in sex, that the material is patently offensive because it

affronts contemporary community standards relating to

the description or representation of sexual matters, and

that the material is utterly without redeeming social value

would be a legal conclusion of the prosecutor and consti-

tute mere surplusage. See 47 Ill.App.2d 258, 262.

The defendants contend that the [Illinois obscenity

statute on its face fails to give fair guidance to putative

defendants, and therefore Federal constitutional first

App. 3

amendment rights require the terms of the obscenity def-

inition to be correctly set forth in the charging instru-

ment in order to give defendants proper notice of the

nature of the charged offense. However, the very case

upon which the trial court relied in dismissing the com-

plaints refutes this argument. In People v. Ridens

(1974), 59 Ill.2d 362, cert. denied (1975) 421 U.S. 993, 44

L.Ed.2d 483, 95 S.Ct. 2000, the supreme court upheld the

constitutionality of our obscenity statute against charges

that it was vague and overbroad and, when measured

against the due process requirement that a criminal stat-

ute give a person of ordinary intelligence fair prior no-

tice that his contemplated conduct is forbidden, the court

further deemed our obscenity statute to be sufficiently

definite. (59 Ill.2d 362, 369-75; see also Ward v. Illinois

(1977), 431 U.S. 767, 52 L.Ed.2d 738, 97 S.Ct. 2085.)

Based upon the Ridens decision, we reason that it is the

obscenity statute itself, as judicially construed, and not

the charging instrument, which must advise the defend-

ant of the meaning of obscenity and thereby forewarn

him, in advance of his actions, whether or not his con-

templated conduct is proscribed.

The defendants also contend that the trial court was

correct is dismissing their complaints because the alle-

gations inacurrately set forth the definitional elements

of obscenity. While it is correct that the definitional ele-

iments as alleged in the complaints did not conform to

the requirements of the Il'inois obscenity statute as

authoritatively construed by the Ridens court, the lan-

guage used hy the State constituted surplusage and did

not make the complaints insufficient. Rather than dis-

missing those complaints, the remedy which the trial

App. 4

eourt should have employed was to strike all language

setting forth the definitional elements of obscenity as

surplusage. Cf. People v. Dyer (1977), 51 Ill. App.3d 731;

People v. Young (19738), 12 Ill.App.3d 310, 314.

The trial court’s order dismissing the complaints or

amended complaints in each of the following designated

proceedings are reversed and the causes are remanded

to the trial court for further proceedings.

1.

People v. Jon Bailey—Appellate Court #85-393

16th Judicial Circuit, Kendall County

(a) trial court #82 CM-295—amended complaint

People v. Randy McCaslin—Appellate Court #83-395

16th Judicial Cireuit, Kendall County

(a) trial court +83 CM 78—complaint

People v. John R. Findlay—Appellate Court 83-395

16th Judicial Circuit, Kendall County

(a) trial court #82 CM 293—amended complaint

(b) trial court #82 CM 294—amended complaint

(c) trial court #82 CM 308—amended complaint

(d) trial court #82 CM 309—amended complaint

(e) trial court #83 CM 83—complaint

People v. Rodney Leifheit—Appellate Court #83-396

16th Judicial Circuit, Kendall County

(a) trial court #83 CM 59—complaint

(b) trial court #83 CM 60—complaint

(c) trial court #83 CM 61—complaint

REVERSED AND REMANDED.

NASH and UNVERZAGT, JJ., concur.

Exhibit B

60564

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

October 2, 1984

Mr. J. Steven Beckett

Reno, O’Byrne & Kepley

501 W. Church

Champaign, IL 61820

No. 60564—People State of Illinois, respondent, vs. Jon

C. Bailey, et al., petitioners. Leave to appeal,

Appellate Court, Second District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Clerk of

the Appellate Court on October 23, 1984.

App. 6

Exhibit C

First Amendment

Constitution of the United States

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof

of abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to pe-

tition the Government for a redress of grievances.

Fourteenth Amendment

Constitution of the United States

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shal]

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

App. 7

ILLINOIS OBSCENITY STATUTE Ch. 38, § 11-20,

ILL. REV. STAT.

§ 11-20. Obscenity. (a) Elements of the Offense.

A person commits obscenity wher, with knowledge of

the nature or content thereof, or recklessly failing to ex-

ercise reasonable inspection which would have disclosed

the nature or content thereof, he:

(1) Sells, delivers or provides, or offers or agrees to

(2)

(3)

(4)

(6)

(b)

sell, deliver or provide any obscene writing, pic-

ture, record or other representation or embodi-

ment of the obscene; or

Presents or directs an obscene play, dance or

other performance or participates directly in that

portion thereof which makes it obscene; or

Publishes, exhibits or otherwise makes available

anything obscene; or

Performs an obscene act or otherwise presents

an obscene exhibition of his body for gain; or

Creates, buys, procures or posseses obscene mat-

ter or material with intent to disseminate it in

violation of this Section, or of the penal laws or

regulations of any other jurisdiction; or

Advertises or otherwise promotes the sale of ma-

terial represented or held out by him to be ob-

scene, whether or not it is obscene.

( bsecene Defined.

A thing is obscene if, considered as a whole, its pre-

dominant appeal is to prurient interest, that is, a shame-

ful or morbid interest in nudity, sex or erection, and if it

goes substantially beyond customary limits of candor in

description or representation of such matters. A thing is

App. 8

obscene even though the obscenity is latent, as in the case

of undeveloped photographs.

(c) Interpretation of Evidence.

Obscenity shall be judged with reference to ordinary

adults, except that i‘ shall be judged with reference to

children or other specially susceptible audiences if it ap-

pears from the character of the material or the cireum-

stances of its dissemination to be specially designed for or

directed to such an audience.

Where circumstances of production, presentation, sale,

dissemination, distribution, or publicity indicate that ma-

terial is being commercially exploited for the sake of its

prurient appeal, such evidence is probative with respect

to the nature of the matter and can justify the conclusion

that the matter is utterly without redeeming social impor-

tance,

In any prosecution of an offense under this Section

evidence shall be admissible to show:

(1) The character of the audience for which the ma-

terial was designed or to which it was directed;

(2) What the predominant appeal of the material

would be for ordinary adults or a special audi-

ence, and what effect if any, it would probably

have on the behavior of such people;

(3) The artistic, literary, scientific, educational or

other merits of the material, or absence thereof ;

(4) The degree, if any, of public acceptance of the

material in this State;

App. 9

(5) Appeal to prurient interest, or absence thereof,

in advertising or other promotion of the mate-

rial;

(6) Purpose of the author, creator, publisher or dis-

seminator.

(d) Sentence.

Obscenity is a Class A misdemeanor. A second or

subsequent offense is a Class 4 felony.

(e) Prima Facie Evidence.

The creation, purchase, procurement or possession of

a mold, engraved plate or other embodiment of obscenity

specially adapted for reproducing multiple copies, or the

possession of more than 3 copies of obscene material shall

be prima facie evidence of an intent to disseminate.

(f) Affirmative Defenses.

It shall be an affirmative defense to obscenity that the

dissemination:

(1) Was not for gain and was made to personal asso-

ciates other than children under 18 years of age;

(2) Was to institutions or individuals having scien-

tific or other special justification for possession

of such material.

Amended by P.A. 77-2638, $1, eff. Jan. 1, 1973.