What is the “promotion of obscenity” in Colorado?

Colorado Revised Statute 18-7-102 makes the promotion of obscenity a crime. This is when you either:

• promote – or possess with intent to promote – any obscene material; or
• produce, present, direct, or participate in an obscene performance.

Examples of CRS 18-7-102 violations are:

• A video store selling obscene DVDs;
• An online business selling obscene magazines;
• Selling obscene comic books at a flea market.

The law presumes that possessing six or more identical obscene items means you have the intent to promote them.¹

Continue reading for everything you need to know about the Colorado crime of the promotion of obscenity.

Not all pornography is obscene.

“Obscenity” Meaning

Under Colorado law, material is “obscene” if these three conditions are true:

1. The average person applying contemporary community standards would find that the material appeals to the “prurient interest” in sex (meaning a shameful or morbid interest); and
2. The material depicts or describes, in a patently offensive way, actual or simulated sex acts, masturbation, sadism, masochism, or lewd exhibition of the genitals; and
3. The material, taken as a whole, lacks serious literary, artistic, political, or scientific value.²

Therefore, not all sexual or even pornographic materials are obscene. Pornography is not criminal in Colorado if at least one of the above three prongs is untrue.

Promotion v. Wholesale Promotion

Promotion of obscenity is a separate offense from wholesale promotion of obscenity, which occurs when you:

1. promoted obscene material (or possessed it with the intent to promote it) and
2. knew the content and character of the material.

Wholesale promotion typically refers to distributing material for the purpose of resale, such as selling obscene magazines to a retail store or newsstand. Whereas with promotion of obscenity, material does not have to be distributed for the purpose of resale.³

CRS 18-7-102 prohibits the promotion of obscenity.

Penalties

In Colorado, the promotion of obscenity is a class 2 misdemeanor. The penalty is:

• up to 120 days in county jail and/or
• a fine of up to $750.

Meanwhile, the promotion of obscenity to a minor is a class 6 felony in Colorado. This carries:

• 12 to 18 months in Colorado State Prison plus and 1 year of parole,
• $1,000 to $100,000 in fines, and
• sex offender registration.⁴

Penalties for Wholesale Promotion of Obscenity

The wholesale promotion of obscenity is a class 1 misdemeanor, carrying up to 364 days in jail, and/or up to $1,000 in fines. Though if the material is promoted to a minor, the crime is prosecuted the same as promotion of obscenity to a minor, discussed above.⁵

Promotion of obscenity to a minor is a felony.

Defenses

Here at Colorado Legal Defense Group, I have represented countless clients accused of sex-related charges, including the promotion of obscenity. In my experience, the following four defenses have proven very effective with prosecutors, judges, and juries at getting CRS 18-7-102 cases lessened or dropped.

1. There Is No Obscene Material. Obscenity is subjective; therefore, I can argue that the material in your case falls outside the strict three-pronged test discussed above. I can even use experts witnesses to testify in your favor as to what “community standards” are.
2. You Were Not Aware of the Obscenity. As long as there is reasonable doubt that you knew the material in question was obscene, charges should be dismissed. For example, if you mailed someone else’s sealed packages without knowing they contained obscene materials, you broke no law.
3. The First Amendment Protected You. The First Amendment protects materials with serious literary, artistic, political, or scientific value. I would argue that the material in question, when taken as a whole, has a legitimate purpose beyond catering to a prurient interest.
4. The Police Committed an Illegal Search and Seizure. If law enforcement found the material by violating your Fourth Amendment rights—such as by searching your home with no warrant or probable cause—I would move the court to suppress that evidence. If the court agrees, prosecutors may be forced to dismiss your case for lack of proof.

What materials are considered obscene can be subjective.

Record Sealing

If you have a promotion of obscenity conviction on your Colorado criminal record, you can petition the court for a criminal record seal no sooner than two years after the case closes. A case is “closed” once you finish your jail sentence, probation, and parole.

However, if your promotion of obscenity charge gets dismissed, you can petition for a record seal right away.⁶

Having any criminal record can bar you from employment, housing, and professional licensing opportunities. Therefore, you should take advantage of the record seal process once you become eligible.

Immigration Consequences

Courts may consider promotion of obscenity a “crime involving moral turpitude” (CIMT) and/or an aggravated felony (if a minor is involved). These types of crimes are often deportable.⁷

Therefore, if you are a non-citizen facing charges of any obscenity crime, retain an experienced lawyer immediately. You may be able to remain in the U.S. if your charge gets reduced or dismissed.

A typical defense to obscenity allegations is the First Amendment.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Obscenity and Community Standards – Yale Journal of International Law.
• The Law of Obscenity – or Abusurdity – St. Thomas Law Review.
• Morals and the Constitution: The Sin of Obscenity – Columbia Law Review.
• The Metaphysics of the Law of Obscenity – The Supreme Court Review.
• Post-Modern Art and the Death of Obscenity Law – Yale Law Journal.

Learn more about Colorado obscenity crimes. 

Legal References