What is Pornography?
In Utah, pornography is defined as anything that “the average person, applying contemporary community standards, finds that, taken as a whole, it appeals to prurient interest in sex; is patently offensive in the description or depiction of nudity, sexual conduct, sexual excitement, sadomasochistic abuse, or excretion; and taken as a whole it does not have serious literary, artistic, political or scientific value.” That definition is a long one so to put it more simply, and as another legal jurist said, you know it when you see it.
It’s Illegal to Distribute Pornography in Utah
Most people don’t know that the distribution of pornography is illegal in Utah, but it is. It’s considered a Utah sex crime. The question then becomes, how is it that pornography is available for purchase? It’s available, but it’s illegal. The only available answer is that law enforcement does not enforce the law. The law clearly states that the following is illegal:
- sending or bringing any pornographic material into the state with intent to distribute or exhibit it to others;
- preparing, publishing, printing, or possessing any pornographic material with intent to distribute or exhibit it to others;
- distributing or offering to distribute, or exhibiting or offering to exhibit, any pornographic material to others;
- writing, creating, or soliciting the publication or advertising of pornographic material;
- promoting the distribution or exhibition of material the person represents to be pornographic; or
- presenting or directing a pornographic performance in any public place or any place exposed to public view or participating in that portion of the performance which makes it pornographic.
The above can be found in Utah Code 76-10-1204. The statute leaves no room for mistake, distribution of pornographic material is illegal.
Searches and Seizures Related to Pornography.
There are some explanations as to why law enforcement typically doesn’t enforce the anti-porn distribution law. One reason is because porn is measured by community standards. Thus, if the community is more tolerant of pornographic materials law enforcement is less likely to make arrests under this law. If complaints are made by the community then law enforcement is more likely to enforce the distribution laws.
A second reason is because law enforcement must acquire a warrant to search and seize pornographic materials. In order to obtain a search warrant for such materials law enforcement must do the following:
- They have to provide an affidavit to a judge describing with specificity the material sought to be seized.
- If practical, law enforcement also has to attach to the affidavit the material alleged to be pornographic or harmful to minors to allow the judge to examine the material.
After reviewing the affidavit the judge will determine whether there is probable cause to issue a search warrant. If a search warrant is issued material is seized that isn’t pornographic, the subject of the warrant has 10 days to challenge the warrant.
If you have further questions feel free to giver our Utah criminal defense lawyers a call at 801.413.1753.