Under CRS § 18-7-102, the promotion (or wholesale promotion) of obscenity to a minor child in Colorado is a class 6 felony. If convicted, you will be facing one year to 18 months in prison, $1,000 to $100,000 in fines, and mandatory sex offender registration.
Meanwhile, promotion of obscenity to an adult is prosecuted as a misdemeanor offense.
This chart illustrates the penalties for the various obscenity offenses:
| Colorado obscenity offense | Punishment |
| Promotion of obscenity to an adult | Class 2 misdemeanor:
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| Promotion of obscenity to a minor | Class 6 felony:
|
| Wholesale promotion of obscenity to an adult | Class 1 misdemeanor:
|
| Wholesale promotion of obscenity to a minor | Class 6 felony:
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In this article, our Denver Colorado criminal defense lawyers will answer the following key questions:
- 1. What is the legal definition of obscenity?
- 2. When is obscenity a crime in Colorado?
- 3. Do I have to register as a sex offender?
- 4. How can I fight the case?
- 5. Additional Reading
1. What is the legal definition of obscenity?
Obscene has a three-pronged definition in Colorado:
- Appealing to sexual interests; and
- Depicting or describing offensive representations of sex acts or genitals; and
- Lacking serious literary, artistic, political, or scientific value.1
Obscenity can take any material or performative form, such as:
- Magazines, books, letters, or manuscripts,
- Video, movies, photography, audio, songs, or speeches,
- Live or recorded theater, or
- Words or gestures
CRS 18-7-102 prohibits the promotion of obscenity in Colorado.
2. When is obscenity a crime in Colorado?
There are four primary obscenity offenses:
Promotion of obscenity
Under Colorado law, the promotion of obscenity is knowingly:
- Promoting – or possessing with intent to promote – any obscene material; or
- Producing, presenting, directing, or participating in an obscene performance
Note that Colorado law presumes defendants have the intent to promote obscenity if they are found in possession of six or more identical obscene materials.
A class 2 misdemeanor, promotion of obscenity carries up to 120 days in jail, and/or up to $750 in fines.2
Promotion of obscenity to a minor
Under Colorado law, promotion of obscenity to a minor is defined as knowingly:
- Promoting – or possessing with intent to promote – any obscene material to a child under 18 years old; or
- Producing, presenting, directing, or participating in an obscene performance involving a child under 18 years old
A class 6 felony, promotion of obscenity to a minor carries 1 year to 18 months in the Colorado Department of Corrections (Prison) and/or $1,000 to $100,000 in fines. In addition, there is a year of mandatory parole. And convicted defendants must register as sex offenders.3
Wholesale promotion of obscenity
Under Colorado law, wholesale promotion of obscenity is knowingly making, selling, possessing, or distributing obscene materials for the purpose of resale.
A class 1 misdemeanor, wholesale promotion of obscenity carries up to 364 days in jail, and/or up to $1,000 in fines.4
Wholesale promotion of obscenity to a minor
Under Colorado law, wholesale promotion of obscenity to a minor is knowingly making, selling, possessing, or distributing obscene materials for the purpose of resale to a minor.
A class 6 felony, wholesale promotion of obscenity to a minor carries one year to 18 months in prison and/or $1,000 to $100,000 in fines. In addition, there is a year of mandatory parole. And convicted defendants must register as sex offenders.5
3. Do I have to register as a sex offender?
Defendants must register on the Colorado sex offender registry if they get convicted of either:
- Wholesale promotion of obscenity to a minor, or
- Promotion of obscenity to a minor7
Wholesale promotion of obscenity to a minor is a felony in Colorado.
4. How can I fight the case?
Three potential defenses to Colorado obscenity charges include:
- You had no knowledge. A necessary element of the crime of promoting obscenity is that the defendant is aware of the obscene content or character. So a potential defense is that the defendant genuinely did not realize that he/she was distributing or selling obscene materials. For example, a delivery person hired to transport a box of obscene materials commits no crime if the delivery person is unaware of what is in the box.8
- The material wasn’t obscene. Reasonable minds can disagree about whether something meets the legal definition of obscene language or representations. Unless prosecutors can prove that the materials or performances in question qualify as obscene, the criminal charges should be dropped.
- The police engaged in misconduct. If law enforcement officers found the obscene materials through an unlawful search, the defense attorneys can ask the Colorado court to suppress them as evidence. If the court agrees, the District Attorney may be left with a case that is too weak to continue prosecuting.
5. 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.
Legal References
- Colorado Revised Statute 18-7-101. The language of the statute readers as follows:(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.
- CRS 18-7-102; CRS 18-7-101. Prior to March 1, 2022, class 2 misdemeanors carried 3 to 12 months in jail, and/or $250 to $1,000 in fines. SB21-271.
- CRS 18-7-102; CRS 18-7-101. See also People v. Boles, (Colo.App. 2011) 280 P.3d 55.
- CRS 18-7-102; CRS 18-7-101. Prior to March 1, 2022, class 1 misdemeanors carried 6 to 18 months in jail, and/or $500 to $5,000 in fines. SB21-271.
- CRS 18-7-102; CRS 18-7-101.
- CRS 18-7-102. See our related article, Promotion of Obscenity to a Minor in Colorado – What is the Penalty?
- CRS 16-22-102 subsections v & w.
- See People v. Ford, (Colorado Supreme Court, 1989) 773 P.2d 1059.