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App. B / Adult Businesses
<br />or distribution of obscene publications in Minnesota is rare,
<br />but because prosecutors have been reluctant to bring obscen-
<br />ity charges, because of limited resources, difficulties faced
<br />when prosecuting obscenity, and because obscenity has his-
<br />torically been considered a victimless crime.
<br />Obscenity, however, should no longer be viewed as a vic-
<br />timless crime.6 There is mounting evidence that sexually
<br />oriented businesses are, as described earlier in this report,
<br />often associated with increases in crime rates and a decline
<br />in the quality of life of neighborhoods in which they are
<br />located. Further, as discussed previously, when there is no
<br />prosecution of obscenity, large cash profits make pornog-
<br />raphic operations very attractive to members of organized
<br />crime. The Working Group thus believes that prosecution of
<br />obscenity, particularly cases involving children, violence or
<br />bestiality, should assume a higher priority for law enforce-
<br />ment officials.
<br />In addition, many of the difficulties faced when prosecut-
<br />ing obscenity can be addressed by adequate training and
<br />assistance. In order to prove that material is obscene, a
<br />prosecutor must prove:
<br />(i) that the average person, applying contemporary
<br />community standards[,] would find that the work, taken
<br />s Two blue ribbon commissions have reached different conclusions
<br />regarding the harmfulness of sexually explicit material to individuals. A
<br />presidential Commission on Obscenity and Pornography concluded in
<br />1970 that there was no evidence of "social or individual harms" caused by
<br />sexually explicit materials and, therefore, "federal, state and local legis-
<br />lation prohibiting the sale, exhibition, or distribution of sexual materials
<br />to consenting adults should be repealed." The Report of the Cornm'n on
<br />Obscenity and Pornography at 57-8 (Bantam Paperback ed. 1970). How-
<br />ever, in 1986, the Attorney General's Commission on Pornography con-
<br />cluded that 'sexually violent materials ... bear ... a causal relationship
<br />to antisocial acts of sexual violence [and that) the evidence supports the
<br />conclusion that substantial exposure to [nonviolent) degrading material
<br />increases the likelihood for an individual [to] commit an act of sexual
<br />violence or sexual coercion.' Attorney General's Comm'n on Pornography,
<br />1 Final Report at 326, 333 (1986).
<br />400
<br />Minnesota Attorney General's Report / App. B
<br />as a whole, appeals to the prurient interest in sex;
<br />(ff) that the work depicts sexual conduct ... in a pat-
<br />ently offensive manner; and
<br />(iii) that the work, taken as a whole, lacks serious
<br />literary, artistic, political, or scientific value.
<br />Minn. Stat. $ 617.241, subd. 1(a)(i-iii) (1988). This statutory
<br />standard was drawn to be consistent with constitutional
<br />standards set forth in Miller, supra.
<br />'Ib be sure, prosecutors face a number of hazards in prose-
<br />cuting obscenity. They include inadequate training in this
<br />specialized area of law, attempts by defense attorneys to
<br />remove jurors who find pornography offensive, the offering
<br />into evidence of polls and surveys through expert testimony
<br />to prove tolerant community standards, efforts to guide
<br />jurors with jury instructions favorable to the defense, and
<br />discouragement with unsuccessful prosecutions.
<br />But the hazards can be overcome, Alan E. Sears, former
<br />executive director of the U.S. Attorney General's Commis-
<br />sion on Pornography, has stated:
<br />Prosecutors can successfully obtain obscenity convic-
<br />tions in virtually any jurisdiction in the United States.
<br />In order to obtain a conviction, it is incumbent upon a
<br />prosecutor to prepare well, know the law, not fall into
<br />the "one case syndrome" trap, obtain a representative
<br />jury through proper voir dire, keep the focus of the trial
<br />on the unlawful conduct of the defendant, and obtain
<br />legally sound instructions.
<br />Sears, "How 'Ib Lose A Pornography Case," The CDL Re-
<br />porter (n.d.).
<br />The Working Group heard testimony from prosecutors
<br />who have pursued obscenity cases nationally regarding ef-
<br />fective ways to prosecute obscenity cases. Materials can be
<br />bought or rented, rather than seized under warrant. In the
<br />absence of survey data, community standards can be left to
<br />the wisdom of the jury, In that case, experts should be
<br />prepared to testify if the defense attempts to a statis-
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