1 year to 18 months in state prison (plus 1 year of parole); and/or
$1,000 to $100,000 in fines.1
However, it may be possible to get an obscenity criminal chargereduced or even dismissed with no penalties, as I discuss further down.
Definition of promotion of obscenity to a minor
Under Colorado law, promoting obscenity to a minor means to make or in any way provide pornography to a minor (a child under 18 years old).2 It does not matter whether the pornography is in material form – such as a photograph or video – or is a performance – such as live theater.
Legally, materials and performances are considered obscene if they:
Appeal to sexual interests (also called “prurient interests”); and
Depict or describe offensive representations of sex acts or genitals (such as intercourse, oral sex, or masturbation); and
Lack serious literary, artistic, political, or scientific value.3
Certainly, reasonable people can disagree about what qualifies as an obscene performance or material under criminal law. As I explain in the next section, the subjective nature of obscenity is one of the strongest defenses to CRS 18-7-102 charges.
Defenses to promotion of obscenity to a minor
Here at Colorado Legal Defense Group, I have represented literally thousands of people charged with sexual offenses, including promoting pornography to a child. In my experience, the following four defenses can be very effective with prosecutors, judges, and juries.
The material or performance was not obscene. Police are quick to read lewd sexual conduct into innocent, aesthetic representations. After I show the court similar materials or performances that have been widely accepted to be artistic rather than obscene, the D.A. may be willing to drop the case.4
You did not act knowingly. Perhaps someone planted the obscene materials on you or left them in your home. Or perhaps you were hired to deliver the materials without realizing what they contained. Unless prosecutors can prove beyond a reasonable doubt that you knew you were promoting pornography, the charge should be dropped.
No minors were involved. If all the D.A. can prove is that you provided pornography only to adults at least 18 or older and not to any children, then your charge should be reduced from a felony to a misdemeanor. If this happens, there is no sex offender registration requirement.
The police found the materials through an unlawful search. Law enforcement can search for evidence only if they have a valid search warrant or a valid reason to conduct a warrantless search. If I can persuade the judge that the police found the pornography by illegal means, the judge may disregard it as evidence. The D.A. may then be forced to drop your charges for lack of proof.
As a criminal defense attorney, I rely on such evidence as surveillance video, eyewitness accounts, and possibly expert testimony to help craft your defense. The more I can eat away at the D.A.’s case, the more likely they will agree to a substantial charge reduction or dismissal without a jury trial.
Violating CRS 18-7-102 is a felony sex offense carrying up to 18 months in the Colorado Department of Corrections.
CRS 18-7-102 (subsections 1 and 1.5 define “wholesale promotion of obscenity,” which is promotion for the purpose of resale).
Same. People v. Boles (Colo. App. 2011) 280 P.3d 55.
CRS 18-7-101.
Same. See also People v. New Horizons, Inc. (1980) 200 Colo. 377.
About the Author
Michael Becker
Michael Becker has over a quarter-century's worth of experience as an attorney and more than 100 trials under his belt. He is a sought-after legal commentator and is licensed to practice law in Colorado, Nevada, California, and Florida.
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