ESTIMATING COMMUNITY STANDARDS: THE USE OF SOCIAL SCIENCE EVIDENCE IN AN OBSCENITY PROSECUTION

Elements of the legal test for obscenity of sexually explicitmaterial indicted in a criminal case are examined. A cross-sectionof residents of Mecklenburg County (Charlotte, NC) were randomlyassigned to view either one of the sexually explicit films andthe sexually explicit magazine charged in the criminal case,or a control film. Before and after the viewing, residents judgedthe materials' appeal to a prurient interest (a shameful, morbid,unhealthy interest in sex) and patent offen siveness (communitytolerance for such material). The results indicated that therespondents felt that the films and magazine did not appealto a shameful, morbid, or unhealthy interest in sex, nor didthey perceive these materials as going beyond the level of toleranceregarding depictions of sexual conduct for the average adultin that community. A lower percentage of subjects thought thecommunity tolerated the materials they had just viewed thanwhen they were asked to report on what they personally tolerated.Fewer people felt the films appealed to a shameful, morbid,or unhealthy interest in sex after they had an opportunity tosee them than before viewing. The advantages of providing jurorsin obscenity cases with information about community standardsbased on summations of personal tolerance for materials actuallycharged in these cases, rather than hypothetical judgments aboutthe community and obscenity, is discussed.