From Bedtelyon v. State, decided today by the Indiana Court of Appeals, in an opinion by Judge Leeanna Weissmann joined by Judges Edward Najam and Nancy Vaidik:
Statutory definitions shape our analysis. Per [the Indiana] statute [which tracks the First Amendment obscenity exception -EV], something is obscene if:
(1) The average person, applying contemporary community standards, finds that the dominant theme of the matter or performance, taken as a whole, appeals to the prurient interest in sex;
(2) The matter or performance depicts or describes, in a patently offensive way, sexual conduct; and
(3) The matter or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Sexual conduct is defined by statute to mean:
(1) Sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5);
(2) exhibition of the uncovered genitals in the context of masturbation or other sexual activity;
(3) exhibition of the uncovered genitals of a person under sixteen (16) years of age;
(4) sado-masochistic abuse; or
(5) sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) with an animal.
“‘Other sexual conduct’ means an act involving: (1) a sex organ of one … person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.” Finally, this Court has acknowledged that the word “depict” can mean “to form a likeness of by drawing or painting … to represent, portray, or delineate in other ways than in drawing or painting.” A more recent Merriam-Webster entry defines “depict” as “to represent by or as if by a picture.” It defines “describe” as “to tell someone the appearance, sound, smell, events, etc., of (something or someone): to say what something or someone is like” and “to represent or give an account of in words.” …
The videos were not admitted into evidence, and we cannot determine that the court actually viewed them. Instead, the court relied on the testimony of Bedtelyon’s therapist and probation officer who watched the videos and obliquely described the content. Their testimony reveals that the cartoons feature “provocatively dressed,” though never naked, women. The animated characters all experience incestuous attraction. Overall, the evidence suggests that these videos might have erotic themes, are erotic in tone, and describe erotic feelings. But the State did not present evidence that sexual conduct as defined by statute was depicted or described, rather than merely implied.
In the first video, My Mother and Sister Pretend to Be Expecting My Babies After I Lost My Memory, the titular mother and sister pretend to care for their shared brother and son. Bedtelyon’s probation officer testified, “At some point he impregnated them both and they were carrying his children.” Bedtelyon testified that neither woman was actually pregnant, which the video’s title corroborates. Considering only the evidence in favor of the judgment, however, we accept Bedtelyon’s probation officer’s description here. The sister “was clearly in love with him.” These details suggest that the video heavily implies incestuous sex but not that such sex was depicted or described. This is so even though two of the characters become pregnant. Without evidence that the video showed or recounted the act leading to conception, we cannot say the video depicted or described sexual conduct.
The second video, I Seduced My Cousin and Let Him Do Everything He Wanted, features an “attractive” sixteen-year-old girl telling a story about her crush on her sixteen-year-old male cousin. “After great efforts of trying to seduce [him], he ended up spending the night with her cuddling, kissing all over.” The two begin dating and wrangle with how to disclose their relationship to their family. Again, none of the actions depicted or described satisfy the statutory definition of “sexual conduct.” “Kissing all over” could describe “other sexual conduct”—namely mouth to genital contact—but it could also describe behavior squarely outside the bounds of the Sexual Conduct Statute. Where multiple witnesses testified that the characters were never nude, and there was no testimony that any character exhibited their genitals, it is too great a deductive leap to determine that this testimony describes the sexual conduct the Obscenity Statute was intended to reach.
The third video, I am the Seventh of Sextuplet Girls and I Am a Boy, stars sextuplets, the seventh of which identifies as a boy. Careful readers will notice that sextuplets are only six, not seven, siblings. The record contains no explanation for this discrepancy. By the end of the video, two of his sisters fall in love with him.
They are feeling his bulgy muscles. They are continuously all over their brother to the point where they make him feel uneasy about the situation. They end up sleeping in his room … And I think at the very end of the video, the brother wakes up and actually finds his two sisters in bed with him. And, you know … they are sitting there smiling.
This video, too, fails to depict or describe anything more than implied sexual intercourse. That the sisters were “all over” their brother and “in bed with him” alone is not “sexual conduct” as defined by statute. The content is certainly suggestive, but suggestion of sexual conduct alone cannot constitute obscenity. If sexual suggestion alone triggered the Obscenity Statute, censors could train their scopes on clearly constitutional expression, from great literature to soap operas to internet memes.
Bedtelyon’s probation officer conceded that the type of sexual conduct forbidden by statute was left to the viewer’s imagination, describing the videos as largely “thought provoking” and “intended to … provoke … deviate thinking.” Bedtelyon’s therapist testified that the videos were concerning because their content “feeds that deviate fantasy.” But matters that encourage deviate thinking are not necessarily obscene—which Bedtelyon’s probation officer also acknowledged when he testified, “I guess where I said obscene maybe doesn’t necessarily make it illegal.” Here, the probation officer is right. The United States Supreme Court has limited regulation of obscene materials to those that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” …
In defense of the revocation, the State invokes Fordyce v. State (Ind. Ct. App. 1991). In Fordyce, a bookseller was convicted of distributing obscene books that depicts or describes someone less than sixteen years old, a Class D felony at the time…. These books detailed “various sexual activities” between a mother and son, the “sexual experiences” a mother, her teenage daughter, and her daughter’s friend have with two dogs, and a teenage boy who “shows up to engage in a sexual romp.” The State argues that because the books in Fordyce were obscene, the videos Bedtelyon viewed are, too. After all, both feature incest and neither include pictures of nudity.
This argument glosses over what actually made the materials in Fordyce obscene. Per the Obscenity Statute, it was not only that the books featured incestuous attraction, but also that incestuous sexual conduct was depicted or described. Though Fordyce does not detail what acts are described in these books, the language our Court used implies sexual conduct as defined by our Sexual Conduct Statute, and the Court’s finding of obscenity required such acts. Likewise, the issue of nudity is a red herring. The only relevant inquiry on appeal is whether these videos depict or describe sexual conduct in a patently offensive manner. The State fails to meaningfully engage in this inquiry, instead broadly citing the probation officer’s testimony of the sexually suggestive topics in the videos and making the conclusory assertion that “the probation officer described sexual conduct.” We cannot infer that sexual conduct occurred from such a slim record
The State failed to prove by a preponderance of the evidence that Bedtelyon violated his probation when it produced no evidence that he had accessed or viewed obscene videos—that is, videos depicting or describing sexual conduct in a patently offensive manner. The trial court therefore abused its discretion in finding a violation and revoking four years of Bedtelyon’s suspended sentence….