People v. Mature Enterprises, Inc.

• Decision Date: 01 March 1973
• Citation: 73 Misc.2d 749,343 N.Y.S.2d 911
• Parties: The PEOPLE of the State of New York v. MATURE ENTERPRISES, INC., Defendant. --A. Part AP10--A
• Court: New York City Court

Page 911

343 N.Y.S.2d 911

73 Misc.2d 749

The PEOPLE of the State of New York v. MATURE ENTERPRISES, INC., Defendant.

Criminal Court of the City of New York, New York County Part AP10--A. Part AP10--A.

March 1, 1973.

Frank S. Hogan, Dist. Atty., New York County, by William O. Purcell, New York City, of counsel, for People.

Kassner & Detsky, New York City, by Herbert S. Kassner, New York City, of counsel, for defendant.

OPINION

JOEL J. TYLER, Judge.

We are again thrust into the overexplored thicket of obscenity law. The defendant is charged with promotion, or possession with intent to promote, obscene material, knowing the contents and character thereof, all in violation of Penal Law § 235.05, Subd. 1, a class A misdemeanor. ¹ It was tried before the Court without a jury. ²

What is involved is the showing in a public theatre, at a $5.00 per admission charge, of the film 'Deep Throat.' The case had engendered some public interest here and elsewhere. However, it is not unique. Many cases dealing with depiction of the same or similar deviate sexual behavior have been reported, but few have had such a full measure of directed publicity.

The Film

The film runs 62 minutes. It is in color and in sound, and boasts a musical score. Following the first innocuous scene ('heroine' driving a car), the film runs from one act of explicit sex into another, forthrightly demonstrating heterosexual intercourse and a variety of deviate sexual acts, not 'fragmentary and fleeting' as to be De minimis as in Jacobellis v. Ohio, 378 U.S. 184, 197--198, 84 S.Ct. 1676, 12 L.E.2d 793 (1964), Goldberg, J., or 10 minutes out of a 120-minute movie as in I Am Curious Yellow (404 F.2d 196, 203, infra); but here it permeates and engulfs the film from beginning to end. The camera angle, emphasis and close-up zooms were directed, as in United States v. Kaehler, D.C., 353 F.Supp. 476, 477, 'toward a maximum exposure in detail of the genitalia' during the gymnastics, gyrations, bobbing, trundling, surging, ebb and flowing, eddying, moaning, groaning and sighing, all with ebullience and gusto.

There were so many and varied forms of sexual activity one would tend to lose count of them. However, the news reporters were more adept and counted seven separate acts of fellatio and four of cunnilingus (Newsweek, 1/15/73, p. 50; New York Times Mag. Sec. 1/31/73, p. 28). Such concentration upon the acts of fellatio and cunnilingus overlooked the numerous clear, clinical acts of sexual intercourse, anal sodomy, female masturbation, clear depiction of seminal fluid ejaculation and an orgy scene--a Sodom and Gomorrah gone wild before the fire--all of which is enlivened with the now famous 'four letter The performance of one sexual act runs almost headlong into the other. One defense witness thought 75 to 80% Of the films involved depiction of explicit sexual activity and another viewed it at over 50%. A timekeeper may have clocked a higher percentage. Nothing was faked or simulated; it was as explicit and as exquisite as life. One defense witness said he saw 'realism and genuine sexual experience.' No imagination was needed, since it was intended to appeal to the imbecile as well.

words' and finally with bells ringing and rockets bursting in climactic ecstasy.

The defendant expert witnesses testified that the film possessed entertainment value and humor. The court in People ex rel. Hicks v. 'Sarong Gals', 27 Cal.App.3d 46, 51, 103 Cal.Rptr. 414, 417 (1972) appropriately answered that tedious and tenuous argument often, but conscientiously, made in obscenity cases which have nothing to redeem them:

'Presumably, the Romans of the First Century derived entertainment from witnessing Christians being devoured by lions. Given the right audience, the spectacle of a man committing an act of sodomy on another man would provide entertainment value. However, neither this spectacle nor the activities described in the instant case are invested with constitutionally protected values merely because they entertain viewers. However chaotic the law may be in this field, no court has yet adopted such an extreme result.'

In passing, it should be noted that the defense 'expert' witnesses were unpersuasive in the main. For example, a defense psychologist testified that he would use films like Deep Throat as classroom sex educational material not only in colleges but for certain high school students as well.

The alleged 'humor' of the film is sick, and designed on a level to appeal especially to those first learning that boys and girls are different. Drama critic, Vincent Canby, characterizes the jokes as 'dumb gags, (which) cannot disguise the straight porno intent.' ³ This, the defense experts here maintain, helps redeem the film as worthwhile. As to plot, there is none, unless you exclude the sexual activity, which is the sole plot. And as to character development, a desirable and necessary concomitant of meaningful film, stage or book, again there is none, unless, of course, one means that the progression (or retrogression) of multiple and varied nymphomania to a singular form (fellatio) is evidence of this attribute.

Oh, yes! There is a gossamer of a story line--the heroine's all-engrossing search for sexual gratification, and when all sexual endeavors fail to gratify, her unique problem is successfully diagnosed to exist in her throat. She them seeks to fill the doctor's prescription by repeated episodes of fellatio, which Nora Ephron, euphemistically characterizes, as 'compensatory behavior.' (Esquire, Feb., 1973)

The defense experts testified that they see the film legitimatizing woman's need and 'life right' (as one put it) for sexual gratification, equal with that of men. They also see in the film the thoughtful lesson that sex should not be unavailingly monolithic (usual face-to-face relationship), ⁴ but should take varied forms, with complete sexual gratifications as the crowning goal, or as the film seems to advertise in its plebian fashion--'different strokes for different folks'; or as others, less articulate, might say, 'there's more than one way to skin the cat.' These unusual and startling revelations are of social value, they say, not only for the bedroom, but necessary as an object lesson for a public forum.

The alleged story lines are the facade, the sheer negligee through which clearly shines the producer's and the defendant's true and only purpose, that is, the presentation of unmistakably hard-core pornography, where 'imagination has gone to work in the porno-vineyards'--a quotation by a newsman, and adopted by the defendant in its newspaper advertisements (Exhsibits 2 and 4 in evidence). One defense expert actually, but unwittingly, confirms the charade when he says that the 'plot' of the film 'provides a thread on which the various sequence of sexual acts would be hung.'

Movie critic Judith Crist characterizes the production 'idiot moviemaking' and the actors 'awful' (New York Magazine, 2/5/73, p. 64). I agree, except to add that a female, who would readily and with apparent, anxious abandon, submit to the insertion of a glass dildoe container into her vagina, have liquid poured therein and then drink it by means of a tube, as was done here to and by the 'superstar', is not a reflection merely upon her thespian ability, but a clinical example of extraordinary perversion, degeneracy and possible amentia. ⁵ Whatever talent superstar has seems confined to her magnificant appetite and sword-swallowing faculty for fellatio.

In this Court's view, the film and its genre have a significant meaning and impact, transcending this case, for all society (including

for those who have seen the movie), as noted in the Appendix, attached hereto.

The Law

Penal Law § 235.05, and particularly the definition of 'obscene' in § 235.00, subd. 1, represents the New York Legislature's attempt to codify the federal rules first enunciated in Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); reiterated in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), which also equated 'contemporary community standards' with 'national' rather than any local standards; and elaborated and summarized in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts, 383 U.S. 413, 418--419, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) (involving the famous 'Fanny Hill' book; and, hereinafter, referred to merely as 'Memoirs'); and further elaborated by Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). (See: McKinney's Cons.Laws of N.Y., Practice Commentary, Book 39, Penal Law, p. 89).

The determination of obscenity involves the 'independent' application of three separate tests, all of which must 'coalesce' and be directed to the 'average person.' According to the Roth-Memoirs test, material may be deemed obscene if: (a) the Dominant theme of the material taken as a Whole appeals to prurient interest in sex; (b) it is Patently offensive because it affronts Contemporary community standards relating to the description or representation of sexual matters, and (c) the material is Utterly without redeeming social value. ⁶

The tests were adjusted as they apply to sexual deviants by Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), and given a different dimension in 'close' cases, where 'pandering', if found, will move such a case over the brink into the pool of obscenity, Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), as would the finding of any one of the three added tests in Redrup, supra. (People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815 (1969); Shinall v. Worrell, D.C., 319 F.Supp. 485 (1970).)

Clearly, this case does not involve admission to the theatre of minors (P.L. §§ 235.20, 235.21; Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 12 L.Ed.2d 793; supra). Nor is there evidence that the film, in some manner, has been...