Expert: Chris Wagoner - 7/16/2008

Question
QUESTION: Is it illegal to view pornographic material of two consenting adults on the internet in Texas?

ANSWER: Hi Roger,

Adult pornography is not illegal to view or possess in any state that I know of, it is not illegal under Federal Law either. The courts have held that it is legal. Of course child pornography is illegal in all states.

In Texas, they do have obscenity laws. But they are very had to apply to viewing or even possessing adult pornography. Here is the state law on it:

43.21. Definitions

    (a) In this subchapter:

    (1) "Obscene" means material or a performance that:

    (A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;

    (B) depicts or describes:

    (i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or

    (ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and

    (C) taken as a whole, lacks serious literary, artistic, political, and scientific value.

    (2) "Material" means anything tangible that is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound, or in any other manner, but does not include an actual three dimensional obscene device.

    (3) "Performance" means a play, motion picture, dance, or other exhibition performed before an audience.

    (4) "Patently offensive" means so offensive on its face as to affront current community standards of decency.

    (5) "Promote" means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.

    (6) "Wholesale promote" means to manufacture, issue, sell, provide, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, or to offer or agree to do the same for purpose of resale.

    (7) "Obscene device" means a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.

    (b) If any of the depictions or descriptions of sexual conduct described in this section are declared by a court of competent jurisdiction to be unlawfully included herein, this declaration shall not invalidate this section as to other patently offensive sexual conduct included herein.

43.22. Obscene Display or Distribution

    (a) A person commits an offense if he intentionally or knowingly displays or distributes an obscene photograph, drawing, or similar visual representation or other obscene material and is reckless about whether a person is present who will be offended or alarmed by the display or distribution.

    (b) An offense under this section is a Class C misdemeanor.

43.23. Obscenity

    (a) A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device.

    (b) An offense under Subsection (a) is a state jail felony.

    (c) A person commits an offense if, knowing its content and character, he:

    (1) promotes or possesses with intent to promote any obscene material or obscene device; or

    (2) produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity.

    (d) An offense under Subsection (c) is a Class A misdemeanor.

    (e) A person who promotes or wholesale promotes obscene material or an obscene device or possesses the same with intent to promote or wholesale promote it in the course of his business is presumed to do so with knowledge of its content and character.

    (f) A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same.

    (g) It is an affirmative defense to prosecution under this section that the person who possesses or promotes material or a device proscribed by this section does so for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.

But certain types of pornography can be illegal under federal law. Pornography depicting sex with animals (bestiality) and images of real or simulated rape are considered illegal contraband.

Other than that, its pretty much up to the viewer to decide what they want to view and what they don't want to.

Hope this helps...



---------- FOLLOW-UP ----------

QUESTION: Thanks Commander, for your answer and digging out the Texas laws concerning this subject. I have been watching too many shows on TV like CSI and see them confiscating hard drives from suspect's computers and seem to look for pornographic material to convict them on. I am confused to what really is going on.  It seems that the laws are written with words and phrases so as to be confusing to the ordinary Joe and able to be manipulated for the convenience of a desirable judicial outcome.  For example, the law that says if someone owns more than six sexual stimulators they can be prosecuted for distribution and resale. It also seems to be a catch 22 in that it is okay to view pornography but it is illegal to make it or distribute it.  Do all other states have these same type of obscenity laws that seem to be written so that they sit on the border of legal and illegal for the manipulation and convenience of law enforcement and prevalent judicial outcomes?

Answer
Hi Roger,

You have hit on the one thing that drives us cops crazy. The laws are vague and sometimes written this way. Personally I think its so that lawyers have jobs. If the laws were clear and easy to understand, then we would not need that many lawyers! LOL

As for enforcement, we would probably go 50 years before enforcing the 6 items is distribution law. As for making and distributing pornography, because of the huge amount of it available on the net, this is not really a problem. And the only time I know of anyone being prosecuted for it is when it involves minors.

Hope this answers your questions..












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