CRS 18-7-102 is the Colorado law making it a crime to promote or participate in obscenity. The promotion – or wholesale promotion – of obscenity to a minor child is always a class 6 felony, carrying 1 year to 18 months in prison and/or $1,000 to $100,000 fines, as well as mandatory sex offender registration. Otherwise, obscenity is prosecuted as a misdemeanor offense.
In this article, our Colorado criminal defense lawyers discuss:
- 1. What is the legal definition of obscenity?
- 2. When is obscenity a crime in Colorado?
- 3. What are the penalties under CRS 18-7-102?
- 4. Do I have to register as a sex offender?
- 5. How can I fight the case?
- 6. Related offenses
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
2. When is obscenity a crime in Colorado?
There are four primary obscenity offenses:
2.1. Promotion of obscenity
Under Colorado law, 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 3 to 12 months in jail, and/or $250 to $1,000 in fines.2
2.2. Promotion of obscenity to a minor
Under Colorado law, promotion of obscenity to a minor is 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
2.3. 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 6 to 18 months in jail, and/or $500 to $5,000 in fines.4
2.4. 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 1 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. What are the penalties under CRS 18-7-102?
The sentence for violating Colorado obscenity laws turns on whether children under 18 years old were involved:
Colorado obscenity offense
|Promotion of obscenity||Class 2 misdemeanor:
|Promotion of obscenity to a minor||Class 6 felony:
|Wholesale promotion of obscenity||Class 1 misdemeanor:
|Wholesale promotion of obscenity to a minor||Class 6 felony:
4. 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
5. How can I fight the case?
Three potential defenses to Colorado obscenity charges include:
- 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
- No obscenity. 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.
- Police 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 too weak a case to continue prosecuting.
6. Related offenses
6.1. Sexual exploitation of a child
Sexual exploitation of a child (CRS 18-6-403) is possessing, producing or distributing sexually explicit material involving a minor younger than 18 years of age (child pornography). The sexual exploitation of children is always a felony charge.
6.2. Indecent exposure
Indecent exposure (CRS 18-7-302) is the sexual offense of exposing one’s genitals to another person or masturbating in a public place. A class 1 misdemeanor, penalties for this sex offense include six to 18 months in custody and a $500 to $5,000 fine.
6.3. Disorderly conduct
Disorderly conduct (CRS 18-9-106) comprises breaching the peace, creating a disturbance or fighting in public, or discharging a firearm or displaying a deadly weapon. The crime can be charged as a misdemeanor or a petty offense.
6.4. Sexual assault
Rape (CRS 18-3-402) is any forced or non-consensual act of sexual penetration, such as vaginal, oral, or anal sex. People who are unconscious or drugged cannot give legal consent. The most serious sexual abuse crime, rape is always prosecuted as a felony. Also see our articles on child sexual assault by one in a position of trust (CRS 18-3-405.3) and enticement of a child (CRS 18-3-305).
6.5. Unlawful sexual contact
Unlawful sexual contact (CRS 18-3-404) is non-consensual sexual touching that falls short of rape, such as groping. This unlawful sexual behavior offense can be a misdemeanor or a felony depending on the case. Also see our article on assault crimes, which include unlawful physical contact in the first-degree, second-degree, or third-degree.
6.6. Invasion of privacy for sexual gratification
Invasion of privacy for sexual gratification (CRS 18-3-405.6) is taking intimate photos of a person without such person’s consent. It can be a felony or a misdemeanor depending on the case.
6.7. Solicitation of prostitution
Solicitation of prostitution (CRS 18-7-202) is asking someone to sell sexual acts, sexual conduct, or sexual contact for money. Soliciting is a class 3 felony, carrying up to 6 months in jail and/or $50 to $750 in fines. See our related articles on patronizing a prostitute (CRS 18-7-205), patronizing a prostituted child (CRS 18-7-406), and inducement of child prostitution (CRS 18-7-405.5).
Arrested for a sex crime or other criminal offense? Contact our Colorado criminal defense attorneys today by phone, text message, or our online intake form.
We serve clients facing DUI and criminal charges throughout the state of Colorado, including Denver, Greeley, Colorado Springs, Boulder, Arapahoe, Douglas County, and Jefferson County. Disclaimer: Results cannot be guaranteed.
- Colorado Revised Statute 18-7-101 (“Obscene” means material or a performance that: (a) The average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex; (b) Depicts or describes: (I) Patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or (II) Patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, or covered male genitals in a discernibly turgid state; and (c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.).
- CRS 18-7-102; CRS 18-7-101 (“Promote” means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.).
- 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 (“Wholesale promote” means to manufacture, issue, sell, provide, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, or to offer or agree to do the same for purpose of resale.).
- CRS 18-7-102; CRS 18-7-101.
- CRS 18-7-102.
- CRS 16-22-102 subsections v & w.
- See People v. Ford, (Colorado Supreme Court, 1989) 773 P.2d 1059.