Prurient interest
Prurient interest means a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is designed for a specially susceptible audience or clearly defined deviant sexual group, the appeal of the subject matter shall be judged with reference to such audience or group.
Prurient interest defined
- - A morbid, degrading, and/or unhealthy interest in sex, as distinguished from a mere candid interest in sex.
- - A legal term defined, in 1984, by the U.S. Court of Appeals for the Ninth Circuit as 'a shameful and morbid interest in nudity, sex, or excretion.'
Prurient Interest Legal Appeals
Part of the Test for "Obscene" Adopted in Roth - Alberts - In 1957, when the Supreme Court decided the Roth-Alberts cases, it clarified the concept of "appeal to the prurient interest."
== As Defined in Roth - Alberts ==\
The Roth Court cited as the definition of "prurient," "material having a tendency to excite Lustful thoughts." It approved the charge to the jury given in Roth which used the phrase "tendency to excite Lustful thoughts." The Roth Court, while utilizing the meaning "developed in the case law," indicated in a footnote that it saw no significant difference between that definition and the definition suggested in the American Law Institute Model Penal Code which states that "a thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex or excretion and it goes substantially beyond the limits of candor in description or representation of such matter." The Court also looked to the dictionary definition for further clarification of the meaning of "pruriency" which means to be a "lascivious desire or thought" and "prurient" as relating to having itching, morbid or lascivious longings. The Roth Court, in setting the test for what is "obscene" as "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest", also stated that "sex and obscenity are not synonymous...Obscene material is material which deals with sex in a manner appealing to prurient interest."
As Incorporated in the Miller Test
Although Miller did not attempt to further define "prurient," under both Roth and Miller, the material must be judged by the average person applying contemporary community standards, the work must be taken as a whole and it must be found that when so taken and so judged it appeals to the prurient interest. In addition, under Miller the work must depict or describe sexual conduct in a patently offensive way and considered as a whole lack serious literary, artistic, political and scientific value. It is possible, therefore, that material may have a "tendency to excite Lustful thoughts" and thus be "prurient" but not be obscene under either Miller or Roth.
The Average Adult Standard
As previously noted, under Miller, prurient interest appeal is determined by the average person applying contemporary community standards, that is, an average person must find that a given work appeals to the prurient interest of someone, not necessarily to the prurient interest of the average factfinder. The appeal to material's intended and probable recipient group is the determinative factor. Generally, the standard applied is the average adult standard. It is error to focus only on the most sensitive, least sensitive or younger members of the community. However, where the material is aimed at a deviant segment of society, it should be judged by its impact upon that group.
Proving "Appeal to Prurient Interest"
Expert Testimony is unnecessary. Generally the jury will determine whether material is obscene on the basis of the material itself. Expert testimony is necessary when the reactions of the intended recipient- i.e., a bizarre deviant group, are not within the realm of common knowledge.
A Tendency to Excite Lustful Thoughts
As a definition of prurient appeal, the phrase "a tendency to excite Lustful thoughts" in Roth appears to have survived a battering in Brockett v. Spokane Arcades. The Supreme Court in that case indicated that if the lower court had difficulty with the word "lust" in the statute that it should have excised the same rather than strike down the entire statute which still retained the word "lascivious." Lower courts since that decision have taken the position that that Court was asked, but refused to decide if Lustful desires or thoughts were an improper measuring rod.
Failure to Define Prurient
The cases are uniform in holding that the statute need not define the term.
- http://www.moralityinmedia.org/nolc/olrChapters/chapter6000.pdf ( X Site down 03/22 R/ )
- @2004 National Obscenity Law Center / Obscenity Law Reporter
- (Site down / This document is archived at HX4-4\Legal\Chapter6000.pdf)
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