Today’s Ask-a-Lawyer Question: How Harmful is Showing Porn to a High School Classmate?

Question: I am charged with showing porn to another student in my high school. I was charged under the North Carolina law against “Disseminating harmful material to minors,” but I do not see what was harmful about it.

Answer: You raise a very good point that the average “pornographic” material has not been shown to harm a teenager, not according to any legitimate study, however the law is a configuration of odd constructs. The way that the statute is written the State does not actually have to prove that the material was harmful! And it probably was not! “Harmful to minors” has a statutory definition that has nothing to do with whether the material is actual harmful to minors. See 14-190.13(1). Actual harm being caused is not an element of the offense and need not be established by the state. You should discuss these issues with an attorney and consider a defense that the Statute violates the 1st Amendment; that it is void for vagueness, and or over-breadth.

Of course the other real question is whether the “porn” in question fits within the statutory definition in the first place. Since the statutory definition requires application of how “the average adult person applying contemporary community standards” would view the material, I think the State would have to present studies or survey results to establish how “average adults” apply “contemporary community standards.” This assumes that the material depicts “sexually explicit nudity” (so the old National Geographics are acceptable) or sexual activity, as this is also part of the definition.

In order to be harmful to minors, the material has to have the following qualities: a. The average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient (think lustful) interest of minors in sex… The material does not have to appeal to a prurient interest in sex on the part of minors. It only has to have a tendency to do so. All that is required is that the average person thinks so. Whether a psychologist concentrating in adolescent psychology would think so or not, doesn’t matter. Whether minors are in fact affected this way does not matter. All that matters is whether an average person thinks they are.

This is poorly constructed law… It is a bit like saying a football team won a game because they “outplayed” the other team regardless of the score.

A person charged with Disseminating Harmful Material is not being convicted for what he does. He is being convicted for what an average person’s opinion is as to a question of fact. Any inquiry as to whether the fact is true is irrelevant under the way that the statute is written. Under the way that the Statute is written we have to accept that the Average Person’s opinion is determinative. We are stuck with that. But is the Average Adult Person an expert on minors? It’s not like child psychology is a field without a lot of unanswered questions. Anyway, what minors? Most minors? Some minors? Minors in general? The 85% or so that might make up a standard deviation? Something else?

So, the statutory standard is: You are guilty if you show a picture that the average adult thinks has a certain effect on some minors, but we don’t know which minors, and it doesn’t matter if the picture has that effect or not. Unfortunately the courts tend to uphold that standard, but it is incomprehensible how they can do so with integrity.

Yet another fight would be that this statute violates the Establishment Clause of the US Constitution, as our legislature has codified a requirement that minors will only see what “contemporary community standards” allow; especially in a religious state such as North Carolina, where churches control much of the community. This is arguably codifying church dogma for minors and must be seen as a Constitutional violation. Whether the Courts would recognize the “establishment clause” argument is not a guarantee, but it is an intellectually honest argument to make.

Of course, there is always a 1st Amendment, free speech, argument that can be cut from many earlier cases dealing with pornography.

Similar statutes in other States have been struck down as being in violation of the commerce clause, but this is an even more complex argument.

There are options for fighting this charge, but it is crucial that you consult with a defense attorney as soon as possible to start on your defense.

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