Colorado § 18-7-102 - Obscenity.

§ 18-7-102. Obscenity.

(1) (a) Except as otherwise provided in subsection (1.5) of this section, a person commits wholesale promotion of obscenity if, knowing its content and character, such person wholesale promotes or possesses with intent to wholesale promote any obscene material.

(b) Wholesale promotion of obscenity is a class 1 misdemeanor.

(1.5) (a) A person commits wholesale promotion of obscenity to a minor if, knowing its content and character, such person wholesale promotes to a minor or possesses with intent to wholesale promote to a minor any obscene material.

(b) Wholesale promotion of obscenity to a minor is a class 6 felony.

(2) (a) Except as otherwise provided in subsection (2.5) of this section, a person commits promotion of obscenity if, knowing its content and character, such person:

(I) Promotes or possesses with intent to promote any obscene material; or

(II) Produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity.

(b) Promotion of obscenity is a class 2 misdemeanor.

(2.5) (a) A person commits promotion of obscenity to a minor if, knowing its content and character, such person:

(I) Promotes to a minor or possesses with intent to promote to a minor any obscene material; or

(II) Produces, presents, or directs an obscene performance involving a minor or participates in a portion thereof that is obscene or that contributes to its obscenity.

(b) Promotion of obscenity to a minor is a class 6 felony.

(3) Repealed.

(4) A person who possesses six or more identical obscene materials is presumed to possess them with intent to promote the same.

(5) This section does not apply to a person who possesses or distributes obscene material or participates in conduct otherwise proscribed by this section when the possession, participation, or conduct occurs in the course of law enforcement activities.

(6) This section does not apply to a person's conduct otherwise proscribed by this section which occurs in that person's residence as long as that person does not engage in the wholesale promotion or promotion of obscene material in his residence.

Source: L. 81: Entire part R&RE, p. 999, § 1, effective July 1. L. 83: (5) and (6) amended, p. 2048, § 4, effective October 14. L. 86: (1)(a), (2)(a)(I), (4), and (5) amended and (3) repealed, pp. 782, 785, §§ 2, 8, effective April 21. L. 94: (1) and (2) amended and (1.5) and (2.5) added, p. 1720, § 17, effective July 1.

Editor's note: This section is similar to former §§ 18-7-103, 18-7-104, 18-7-105, and 18-7-106 as they existed prior to 1981.

ANNOTATION

Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962). For article, "Obscenity Law in Colorado: The Struggle to Pass a Constitutional Statute", see 60 Den. L.J. 49 (1982). For article, "Constitutional Law", which discusses a Tenth Circuit decision dealing with obscenity, see 62 Den. U. L. Rev. 95 (1985). For article, "Obscenity and Pornography: Forging Decency Through the Law", see 17 Colo. Law. 45 (1988).

Annotator's note. Cases decided under the 1971 and 1977 versions of this section which are deemed to be relevant appear below.

For the unconstitutionality of the 1971 statute, see People v. Hildebrandt, 190 Colo. 167, 554 P.2d 384 (1976).

The 1977 version of the Colorado obscenity statute was unconstitutional. People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980).

Provisions regulating promotion of obscene devices held unconstitutional. The provisions of the statutory scheme which regulate the promotion of obscene devices impermissibly burden the right of privacy. People v. Seven Thirty-five East Colfax, Inc., 697 P.2d 348 (Colo. 1985) (decided prior to 1986 amendment).

Presumption of scienter contained in subsection (3) unconstitutional. The requirement that statutes regulating obscenity contain an element of scienter is based upon the potential for a strict liability obscenity provision to inhibit the exercise of protected speech. People v. Seven Thirty-five East Colfax, Inc., 697 P.2d 348 (Colo. 1985) (decided prior to 1986 repeal of subsection 3).

Presumption contained in subsection (4) is constitutional and comports with the requirements of due process. People v. Seven Thirty-five East Colfax, Inc., 697 P.2d 348 (Colo. 1985).

Promotion of obscenity to minor is not unconstitutionally vague. A person of common intelligence reading "promote" in context with the statutory definition would understand its meaning and application. The fact that the legislature defined promote differently than its common meaning does not make it unconstitutional. People v. Boles, 280 P.3d 55 (Colo. App. 2011).

Obscenity statute does not lack criminally culpable mens rea and does not premise liability on the mental state of a third party nor does it premise liability on discretionary acts of a third party. People v. Ford, 773 P.2d 1059 (Colo. 1989).

For a review of the history of obscenity regulation, see People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980).

Obscenity provisions could not support injunction or criminal charge. The 1977 version of the Colorado obscenity statute could not be relied upon to support either a civil injunction or a criminal charge. People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980).