Teachers and librarians, even store clerks, in the City of Edwardsville no longer have legal protections if, in the course of their duties, they provide obscene materials to minors. City Council stripped them of those protections, so-called “defense to prosecution” (a legal reason why you cannot be charged with a criminal offense) outlined in the Uniform Public Offense Code (UPOC), provided to each Kansas city by the League of Kansas Municipalities.
The UPOC is a comprehensive public ordinance for cities and parallels the state criminal code.
Cities may amend its sections or delete them entirely as Edwardsville did, as long as their changes do not conflict with state law. A governing body, such as a city council, must pass its version of the UPOC for the document to take effect.
The UPOC defines “obscene material” as:
- The average person applying contemporary community standards would find that the material or performance, taken as a whole, appeals to the prurient interest;
- The average person applying contemporary community standards would find that the material or performance has patently offensive representations or descriptions of (i) ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse or sodomy; or (ii) masturbation, excretory functions, sadomasochistic abuse or lewd exhibition of the genitals; and
- Taken as a whole, a reasonable person would find that the material or performance lacks serious literary, educational, artistic, political, or scientific value.
The sections in the UPOC deleted by the city:
It shall be a defense to a prosecution for promoting obscenity and promoting obscenity to minors that the:
(1) Persons to whom the allegedly obscene material or obscene device was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational or governmental justification for possessing or viewing the same;
(2) Defendant is an officer, director, trustee, or employee of a public library and the allegedly obscene material was acquired by such library and was disseminated in accordance with regular library policies approved by its governing body; or
(3) Allegedly obscene material or obscene device was purchased, leased, or otherwise acquired by a public, private or parochial school, college, or university, and that such material or device was either sold, leased, distributed, or disseminated by a teacher, instructor, professor or other faculty member or administrator of such school as part of or incident to an approved course or program of instruction at such school.
Notwithstanding the provisions of K.S.A. 21-5204, to the contrary, it shall be an affirmative defense to any prosecution under this section that:
(1) The allegedly harmful material or device was purchased, leased or otherwise acquired by a public, private or parochial school, college or university, and that such material or device was either sold, leased, distributed or disseminated by a teacher, instructor, professor or other faculty member or administrator of such school as part of or incidental to an approved course or program of instruction at such school.
(2) The defendant is an officer, director, trustee or employee of a public library and the allegedly harmful material or device was acquired by a public library and was disseminated in accordance with regular library policies approved by its governing body.
(3) An exhibition in a state of nudity is for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library.
(4) With respect to a prosecution for an act described by subsection (a)(1), the allegedly harmful material was kept behind blinder racks.
(5) With respect to a prosecution for an act described by subsection (a)(2) or (3), the defendant had reasonable cause to believe that the minor involved was 18 years old or over, and such minor exhibited to the defendant a draft card, driver’s license, birth certificate or other official or apparently official document purporting to establish that such minor was 18 years old or more.
(6) With respect to a prosecution for an act described by subsection (a)(3), the allegedly harmful performance was viewed by the minor in the presence of such minor’s parent or parents or such minor’s legal guardian.
The provisions of this section shall not apply to a retail sales clerk, if such clerk has no financial interest in the materials or performance or in the commercial establishment displaying, presenting or distributing such materials or presenting such performance other than regular employment as a retail sales clerk. The provisions of this section shall not exempt any retail sales clerk from criminal liability for any act unrelated to regular employment as a retail sales clerk.
Nullification of state law?
Does the city’s action amount to a version of “nullification” of state law? Mayor Carolyn Caiharr disagrees:
“As a city, we are unable to nullify state law, but we do have authority to make laws more restrictive, which is what we have done in this case.
“This is not a free speech issue, if it were, it would not be applicable to some and not others. As we all know there are limits to speech; one in particular is showing obscene materials to children. Within the definition of obscene, as referred to in the ordinance, there is already a reasonable person standard and, among other considerations given, the material must lack serious educational or scientific value. Why would a trusted adult show something considered obscene to a child with no real educational or scientific justification?
“Ultimately, my goal in this is to protect the children of Edwardsville. If a neighbor shows a child obscene material or a teacher does, they should be held to the same standard. There should not be an exemption for those we trust most with our children.”
We sought an opinion on the city’s action from the attorney general’s office, but they did not respond.
