THE ROLE OF THE PROSECUTOR IN PORNOGRAPHY CASES

Morley Swingle is Prosecuting Attorney for Cape Girardeau County.

Over the years, zealous -- I would say over-zealous -- prosecutors have had people arrested on obscenity crimes for distributing to people who want to read them books like Ulysses by James Joyce, An American Traqedy by Theodore Drieser, Lady Chatterly's Lover by D. H. Lawrence, and God's Little Acre by Erskine Caldwell.

Some people consider these books classics. Others consider them obscene. Although none makes my list of favorite books, it concerns me that prosecutors once tried to prevent people from reading them by prosecuting their distributors as criminals.

Prosecuting obscenity cases is more difficult in many respects than prosecuting murder, rape or robbery cases -- and properly so. The obstacle is our United States Constitution. The Constitution does not prohibit government from making it a crime to murder, rape or rob; it does state that government shall make no law "abridging the freedom of speech, or of the press." A responsible prosecutor must be especially careful not to violate a person's constitutional rights when dealing with a pornography complaint.

Two pornography cases have been turned over to my office within the past year. One shows the need for the prosecutor to protect the safety of the public from a criminal. The other shows the need for the prosecutor to protect the rights of the public from over-zealous censorship, by having the courage to refuse to be pressured into turning from prosecutor to persecutor.

One case involved a clerk at a video store who rented a sexually explicit tape to an adult. The woman who rented the tape had gone into the video store, selected the tape, rented it, and took it to the police station where she demanded that the people who rented it to her be prosecuted. She told the officer who spoke to her that she and her husband "had been addicted to pornographic movies and had to view them in order to have sex." She also told the officer that "it was her goal to eliminate pornography in Cape."

I did not file a charge in that case because I did not feel it could be won; but I did not reach the decision lightly. I read not only the police report, but also all major United States Supreme Court pornography cases, every single reported Missouri pornography case, and several articles and books dealing with the law of pornography. I also watched a video-tape put out by the American Family Association about prosecuting pornography, as well as the sexually explicit tape the woman had rented.

While I was doing this research, my office received several calls from the woman, and letters including one where she told me that "sitting on the fence only gets you a sore behind and a stiff neck from trying to please everyone." After I wrote her explaining that I would not be filing the charge, she and her husband called me at home between 11:00 p.m. and midnight one night and complained for twenty minutes.

The other case involved an adult who had shown a sexually explicit video tape to two boys, one 12 and one 13. My office charged that person with the crime of furnishing pornographic material to minors and he pled guilty.

As Prosecuting Attorney, I have a duty and responsibility to only charge people with crimes who are truly guilty. The critics who say, "Why, just file the charge and let the jury decide what is obscene!" are thinking of their own selfish personal agendas, and are not considering the rights of the small businessmen who are selling magazines or renting video tapes in their stores.

In the real world where I work, the prosecutor is not playing Monopoly or Moot Court. The actions of the prosecutor have serious and real consequences. If I file a charge against Jane Doe for renting a tape to an undercover officer, she faces the possibility of going to jail and being fined. I am not going to abuse my position by filing charges against someone just because I do not like the book or tape that person is selling. I agree that most of the materials we are discussing are revolting and disgusting trash. That they are trash does not necessarily make them illegal, though.

I will file a criminal charge against any person who unquestionably violates the Missouri obscenity statutes beyond a reasonable doubt. Missouri statutes make it a crime to sell, deliver or manufacture obscenity, or to sell, buy or possess child pornography. It is also a crime to display publicly any sexually explicit material.

The legal definition of obscenity reads: "Any material or performance is obscene if: (a) applying contemporary community standards, its predominant appeal is to prurient interest in sex; and (b) Taken as a whole with the average person, applying~ contemporary community standards, it depicts or describes sexual conduct in a patently offensive way; and (c) Taken as a whole, it lacks serious literary, artistic, political or scientific value." "Prurient" is defined by Missouri courts as "a shameful or morbid interest in nudity, sex, or excretion." Child pornography is defined as any material that depicts a child under eighteen participating in or observing sexual conduct.

A prosecutor must deal with each criminal complaint on a case by case basis, making the decision whether this particular person should be prosecuted in this particular case. When a prosecutor files a charge, he carries the burden of proving beyond a reasonable doubt that the material is obscene. Furthermore, all twelve jurors must unanimously agree that the material is obscene under the legal test; if even one juror disagrees, the defendant cannot be convicted.

So far, I have filed one case and have declined to file another. Each decision was based on the evidence in that particular case. I will continue to review each complaint as it comes to my office.

In general, what a person reads or watches in his own home is his own business, and my office will not prosecute him. The exception would be if he were possessing child pornography, in which case I would prosecute. I have participated in the past in working on a search warrant to catch a person with child pornography, who was later prosecuted federally.

In general, sexually explicit material depicting only~ consenting adults, being purchased, sold or displayed only to consenting adults, would be impossible to win convictions for in Cape Girardeau County and I will resolve any doubt whether to file the charge in favor of the private citizen, and not file it.

On the other hand, if children are depicted in the material, or if the material is furnished to children, or if it is displayed so that children may see it, any doubt whether to file the charge will be resolved in favor of the government and the charge will be filed. In addition, I have seen references to bestiality material, and to "snuff" films (where a person is actually raped and killed on camera). I would pursue prosecution vigorously if those ever showed up here.

In some ways, the work on these recent pornography complaints has been a change of pace for me. Many of the cases I handle on a daily basis deal with death, sadness and shattered dreams. From the excitement of being picketed by mercenary sign-wavers from other counties, to the curious phenomenon of being required to watch an adult movie from beginning to end as a part of one's job description, the hours spent on this issue have not been dull.

I have handled this issue in the most responsible way and am following the law. I do not see a problem with pornography in Cape Girardeau County. I will do what I legally can to be sure we don't develop a problem in the future. I will never, though, allow myself to be pressured by anyone into filing a charge that is not supported by the law and the evidence.