What is the “wholesale promotion of obscenity” in Colorado?

Colorado Revised Statute 18-7-102 prohibits the wholesale promotion of obscenity. This is knowingly distributing obscene material – or possessing it with the intent to distribute it – for the purpose of resale.

Examples of CRS 18-7-102 violations include:

• A warehouse owner selling obscene DVDs in bulk to adult novelty shops for resale.
• An online business selling obscene magazines in large quantities to a network of distributors.
• A dealer selling obscene comic books in batches to various vendors at a flea market for them to resell.

As discussed below, material can be pornographic without being obscene. CRS 18-7-102 applies only to obscene materials.

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

Elements of CRS 18-7-102

For you to be convicted of wholesale promotion of obscenity in Colorado, prosecutors must prove beyond a reasonable doubt the following two elements:

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

Wholesale promotion generally refers to the distribution of material for the purpose of resale, such as selling obscene videos to a retail store or distributing obscene magazines to newsstands. The law presumes that possessing six or more identical obscene items means you have the intent to promote them.¹

Meanwhile, material is considered “obscene” if the following three things 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, material can be sexual and even pornographic without rising to the level of obscene. Pornography is perfectly lawful in Colorado as long as it does not meet the above three-prong test.

Wholesale Promotion v. Promotion

Note that wholesale promotion of obscenity is a different crime from “promotion of obscenity,” which is:

• Promoting – or possessing with intent to promote – any obscene material; or
• Producing, presenting, directing, or participating in an obscene performance.

With “promotion of obscenity,” there is no distribution of material for the purpose of resale.³

Penalties

In Colorado, the wholesale promotion of obscenity is a class 1 misdemeanor. This is the most serious class of misdemeanor in Colorado and carries a potential penalty of:

• up to 364 days in county jail and/or
• a fine of up to $1,000.

Meanwhile, the wholesale 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 one year of parole,
• $1,000 to $100,000 in fines, and
• sex offender registration.⁴

Penalties for Promotion of Obscenity

The promotion of obscenity (non-wholesale) is only a class 2 misdemeanor, carrying up to 120 days in jail, and/or up to $750 in fines. Though if it is promoted to a minor, it is prosecuted the same as wholesale promotion of obscenity to a minor, discussed above.⁵

Defenses

Here at Colorado Legal Defense Group, I have represented countless individuals facing serious sex-related charges, including the wholesale promotion of obscenity. In my experience, the following five defenses have proven very effective with prosecutors, judges, and juries at getting CRS 18-7-102 cases reduced or dismissed.

1. The Material is Not Obscene. Since obscenity is subjective, this is often the strongest defense and involves arguing that the material in question does not meet the strict three-pronged test described above. This may require expert testimony and a deep understanding of what local “community standards” are. Material that is simply vulgar or pornographic does not automatically qualify as obscene.
2. You Were Unaware of the Obscenity. Charges cannot stand if there is reasonable doubt that you knew of the obscene nature of the material you possessed or distributed. For example, if you shipped someone else’s sealed boxes without any knowledge that they contained obscene materials, you committed no crime.
3. There Was No Wholesale Promotion. I may be able to argue that while you possessed the material, you had no intent to wholesale promote it. For example, the material could have been for personal use, which is generally protected within your own residence.
4. You Were Protected by the First Amendment. If the material has serious literary, artistic, political, or scientific value, it is protected by the First Amendment. I can argue that the work, when viewed as a whole, serves a legitimate purpose beyond appealing to a prurient interest.
5. The Police Found the Material through an Illegal Search and Seizure. If law enforcement discovered the material through a violation of your Fourth Amendment rights—such as searching your property without a valid warrant or probable cause—I would ask the court to suppress that evidence. If the judge agrees, the D.A. may be left with too weak of a case to keep prosecuting you.

Record Sealing

If you are convicted of wholesale promotion of obscenity in Colorado, you can petition the court for a criminal record seal three years after the case closes, which includes the completion of any jail sentence, probation, and parole. Though if your case gets dismissed, you can petition for a record seal immediately.⁶

Having a criminal record can create significant barriers to employment, housing, and professional licensing. Therefore, you are advised to pursue the record seal process as soon as you are eligible.

Immigration Consequences

Wholesale promotion of obscenity may be considered a “crime involving moral turpitude” (CIMT) and/or an aggravated felony. These types of crimes are typically deportable.⁷

Therefore, if you are a non-citizen charged with any obscenity crime, it is vital you contact an attorney right away. Getting your charge reduced or dismissed may be the only way to save your resident status.

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