“Suggestion of Sexual Conduct Alone Cannot Constitute Obscenity,”
From Bedtelyon v. State, decided today by the Indiana Court of Appeals, in an opinion by Judge Leeanna Weissmann joined by Judges Edward Najam and Nancy Vaidik:
Forbidden by the terms of his probation from accessing obscene material, Michael Bedtelyon landed in hot water with his probation officer after watching sexually suggestive anime cartoons. The court concluded the material constituted obscenity and revoked four years of Bedtelyon’s suspended sentence. On appeal, Bedtelyon argues that the State failed to prove the videos constituted obscenity as defined by statute. We agree….
Bedtelyon was convicted of Level 4 felony sexual misconduct with a minor for criminal acts he committed with a 14-year-old girl he met on a dating app. After serving part of his eight-year sentence, Bedtelyon was released on probation. As a term of his probation, Bedtelyon was “prohibited from accessing, viewing, or using internet websites and computer applications that depict obscene matter as defined by [the Indiana obscenity statute].”
Through software required by the terms of his probation, Bedtelyon’s probation officer learned that Bedtelyon had viewed several anime2 videos on YouTube with concerning titles, including: My Mother and Sister Pretend to Be Expecting My Babies After I Lost My Memory; I Seduced My Cousin and Let Him Do Everything He Wanted; and I am the Seventh of Sextuplet Girls and I Am a Boy. After viewing these videos, Bedtelyon’s probation officer determined they were obscene and therefore violated the terms of Bedtelyon’s probation….
Statutory definitions shape our analysis. Per [the Indiana] statute [which tracks the First Amendment obscenity exception -EV], something is obscene if:
(1) The average person, applying contemporary community standards, finds that the dominant theme of the matter or performance, taken as a whole, appeals to the prurient interest in sex;
(2) The matter or performance depicts or describes, in a patently offensive way, sexual conduct; and
(3) The matter or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Sexual conduct is defined by statute to mean:
(1) Sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5);
(2) exhibition of the uncovered genitals in the context of masturbation or other sexual activity;
(3) exhibition of the uncovered genitals of a person under sixteen (16) years of age;
(4) sado-masochistic abuse; or
(5) sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) with an animal.
“‘Other sexual conduct’ means an act involving: (1) a sex organ of one … person and the mouth or anus of another person;
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