Mimesis Law
26 April 2017

Spanish Class Is No Place For Obscenities

September 30, 2016 (Mimesis Law) – Substitute teachers were usually a nice break from the monotony of school. They didn’t know the rules; they didn’t know much about the subject; and they were there just killing time with the class. More often than not, I remember the substitute teacher popping in a video, showing us a film strip, or passing out worksheets. A few times, we had a permanent substitute teacher when the regular teacher went on maternity leave or was out recovering from an illness. Even though they were called permanent, they never really felt that way. And the class rarely treated them that way.

Sheila Kerans was the permanent substitute teacher for a Spanish class at East High School in Columbus Ohio. Apparently looking for a way to fill the time, she settled on the substitute’s old standby—a movie about death. You might be wondering what a movie about death has to do with Spanish class, maybe the disclaimer at the beginning of the movie might help explain this:

The following feature film was created by 26 directors from around the world. Each director was given a letter of the alphabet and asked to choose a word. They then created a short tale of death that related to their chosen word. They had complete artistic freedom regarding the content of their segments.

Yes, it was written in English, and there was no obvious connection to learning Spanish. The film was titled, ABCs of Death, reflecting the gimmick referenced in the disclaimer. Rotten Tomatoes did not give it a good score, and described it this way:

Twenty-six directors. Twenty-six ways to die. The ABC’s OF DEATH is perhaps the most ambitious anthology film ever conceived with productions spanning fifteen countries and featuring segments directed by over two dozen of the world’s leading talents in contemporary genre film. Inspired by children’s educational books, the motion picture is comprised of twenty-six individual chapters; each helmed by a different director assigned a letter of the alphabet. The directors were then given free reign in choosing a word to create a story involving death.

It’s appears well established at this point the movie is one that ought not to be shown to high school kids. So, there was definitely some bad judgment there, which was compounded by bad judgment in not previewing it before hitting play on the video player. The court of appeals described the video as follows:

The vignettes depicted, simulated, or implied very graphic violence; blood and gore; activities involving bodily functions of elimination; cruelty to animals; anal or vaginal sex or other penetration, masturbation, sadomasochism, prostitution, and, most disturbingly, child molestation and rape.

It was definitely unlike anything I was ever shown by a substitute teacher. And that’s probably because it is criminal. And it’s something that not everyone would want to see. So after a student complaint, the vice principal watched some of the movie, then seized it.

Chamberlain (the assistant principal. Ed.) did not watch the entire movie because the last scene he watched “was a simulation of child rape, and that was where [he] had to stop.” (Tr. Vol. I at 67.) Chamberlain informed the school principal, who in turn removed appellant from the classroom and informed the school superintendent, Franklin County Children Services, and Columbus Police Officer Alan Blackmon, the school resource officer.

And from there the criminal investigation into Kerns continued, resulting in her being charged with five counts of disseminating matter harmful to juveniles.

The statute states:

(A) No person, with knowledge of its character or content, shall recklessly do any of the following: (1) Directly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile, a group of juveniles * * * any material or performance that is obscene or harmful to juveniles.

The difference between a high misdemeanor and a low felony is whether the material was harmful or obscene. Both terms are defined by statute, and both definitions are aimed at satisfying the constitutional standard for obscenity. So, the primary difference between the two here is that obscene materials appeal to specific kinds of sex, such as “bestiality or extreme or bizarre violence, cruelty, or brutality….” In case you are wondering, the Supreme Court of Ohio found these definitions constitutional.

In any event, any video with child molestation and rape is going to fall under the definition for obscene. Not surprisingly, the jury found the video obscene and convicted her on four of the five counts. On appeal, Kerns raised several arguments. One of them was the fact the trial court did not define “prurient interest.”

The way the statute is drafted, the jury is required to find that the material appeals to the prurient interest if the materials are merely harmful. But if the jury finds the material obscene, it is but one basis on which it can reach that determination. In prior case law, it had been defined as “an appeal to an unhealthy, abnormal, unwholesome, degrading, shameful, or morbid interest in sex.” And when the Supreme Court of Ohio found the statute constitutional, it did so by interpretative narrowing.

So, it would seem necessary to instruct the jury on a key term for both statutory and constitutional reasons. Despite the trial court failing to do so, the appellate court saved the conviction by finding that the prosecutor giving a partial definition during closing argument was sufficient.

Even still, the appellate court was required to review whether the movie, taken as whole, appealed to prurient interests. In defense, Kerns argued that the movie contained “little if any sexual conduct” and the movie, as a whole, was a horror movie. The appellate court was unpersuaded:

In considering whether the movie appeals to the prurient interest, we consider not only vignettes L and Z, which clearly depicted, implied, or simulated hardcore sexual conduct, but also the fact that many scenes depicted, implied, or simulated sexual activity, masturbation, sexual excitement, nudity, extreme or bizarre violence, cruelty or brutality, sadomasochism, and bodily functions of elimination either by the visual on the screen or the sound accompanying the same, including vignettes B (anal sex), E (masturbation), F (bodily elimination), H (bizarre violence, cruelty, brutality), L (masturbation, penetration without privilege, child rape), O (sadomasochism), Y (bodily elimination, child molestation, bizarre violence, cruelty, brutality), and Z (nudity, vaginal penetration without privilege, ejaculation, sexual contact).

That’s seven out of the 26 vignettes that the appellate court determined contained material that appealed to the prurient interest. The fact that almost three quarters of the movie was free of obscene material did not seem to matter. And without knowing the relative length of these particular scenes, it is conceivable that when considered on a minute by minute basis, it was even less than that. Why these relatively few scenes were sufficient to deem that movie, as a whole, appealed to prurient interests is unclear.

The case represents the difficulty with legally determining which works are obscene and which are not. For example, a simulated rape scene can be done for artistic as opposed to prurient reasons. Even if the scene itself might appeal to prurient interests, the test requires that the work be viewed a whole.

Under the loose standard applied here, such a scene could arguably pollute the movie or book, as the case might be. In the case of “Straw Dogs,” it’s a very small portion of the movie. Likewise, a critically-acclaimed book like Toni Morrison’s Beloved would be suspect. Heck, books re-telling the rape of Europa or Persephone could be excluded from school library.

The dissent helpfully points out that two of the vignettes are in Spanish. Finally a connection to Spanish class! And the dissenting judge found that the unifying theme of the movie was horror, rather than material that appealed to a prurient interest. Moreover the dissent pointed out that there was a critical factual flaw in the state’s case:

The problem with the State of Ohio’s case at trial was that the State never demonstrated what students actually saw. As noted earlier, the movie runs far longer than a class period. The chances are minimal that any students saw the last few vignettes which are among the most graphic and objectionable.

Certainly, the State did not prove that any students saw these last vignettes, especially the two students who testified at trial. In fact, the State did not prove that any student saw any offensive vignette or group of vignettes. Since several of the vignettes are harmless and are certainly not obscene, the State failed to prove its case. The State simply did not prove that any student saw a vignette which was harmful to juveniles or obscene. * * *

Based upon my own viewing of the film, I would find, at most, three vignettes to be objectionable. I am still relatively sure no student saw two of those vignettes because they are at the end of the film. The objectionable vignette toward the middle of the film may not have been seen or appreciated by Kearns given the lack of attention she was displaying when Chamberlain was in the classroom and at the times described by the students. Also the two students who testified did not seem to recall any of the three objectionable vignettes. The three objectionable vignettes would have been memorable.

Ultimately, this situation reflects Potter Stewart’s formulation of obscenity, i.e. “I know it when I see it.” No doubt the movie contains images and scenes that many people would not want to see. And there is even a stronger likelihood that nearly every parent would object to this movie being shown in school. But not every sex act is obscenity and not every dumb decision is criminal.

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  • Jeff Gamso
    30 September 2016 at 10:43 am - Reply

    And if the students didn’t see the obscene parts, then they weren’t exposed to obscenity, any more than if they visited the home of an adult relative who lawfully had obscene videos and there watched Bambi.

    The problem in this case isn’t whether the film was obscene. Obscenity is, finally, as Potter Stewart said – which means nobody is ever on notice of what can and can’t be done.

    But even if you give ’em that, Judge Tyack was right. Absent evidence that the sub actually showed the students the held-to-be-obscene parts, the evidence was simply insufficient to convict of the felony.

    This is a case about judges responding to ickiness rather than law – all too common a problem.