LOS ANGELES — Last Spring, attorney Jeffrey Douglas informed the industry that there had apparently been dozens of "quiet" obscenity busts taking place around the San Fernando Valley, with various producers being charged with misdemeanor obscenity, copping pleas that involved no jail time (but leaving convictions on the defendants' records), and no one saying a word about it — especially to the press.
Douglas, it seems, may have been speaking from experience. His client, Max Hardcore, was charged on May 23 with misdemeanor charges of selling obscene matter, Sec. 311.2(a); advertising obscene matter, Sec. 311.5... and child pornography, Sec. 311.2 (c).
The tape in question was Max Hardcore Extreme 4, and since the cops seized all of Hardcore's age-verification documents along with about a dozen copies of the tape, it took Douglas' motion for a demurrer to find out why the city attorney thought there were any kids in the feature.
"There is nothing about this tape that distinguishes it from not only everything else in the Max catalog, but most everything that's available for sale," Douglas told AVN.com. "It is certainly not on the cruder or more offensive side of the Max spectrum. But what it does feature is a lot of — not young-looking women, but young scenarios, where he refers to their uncle or their teacher, and then one woman actually says something to the effect of, 'Fuck my' — and I don't remember what age — '14-year-old ass' or something like that. And that apparently escaped the editing room scrutiny. But the character that says that has been previously established as a supposed reporter for Max who is walking the boardwalk in Atlantic City, and is definitely the oldest-looking person in the video, with the exception of Max himself. She is overwhelmingly an adult, and there is nothing in her makeup, hair, or anything else that emphasizes her apparent immaturity. She's a woman."
Deputy City Attorney Michelle B. Anderson had a different reaction to the tape.
"The current prosecution, under Penal Code Section 311.2(c), was promoted by the video's focus, content and tone, being directed at and encouraging the sexual abuse and molestation of minors," reads part of the "Statement On [sic] Facts" filed by Anderson with the court as part of her Memorandum in Opposition to Douglas' "Notice; Demurrer And Non-Statutory Motion And Motion To Dismiss."
"The film repeatedly engages an adult male in sex acts with various females, who are acting, portraying, and dressed up as minors," the memorandum continues. "During these sexual vignettes, the male directs the female actresses to keep their sexual involvement a secret. Likewise, the females promise to keep the secret. Many references are made to induce the viewer or the audience to believe or fantasize that the female is a minor. Staterments and phrases, such as 'I'm twelve-and-a-half years old,' 'little girl,' 'teenager,' 'Lolita' and 'Teen F--k' are used throughout the video. The female actresses are attired as young girls with ponytails, school uniforms, and are filmed going to traditional places that children frequent, such as school, playgrounds and parks. Further, references are made about the female's genitalia being that of a child, and the photos on the box cover show a vagina without pubic hair. There are additional references, innuendos, and overtures regarding the sexual molestation and the incestual relationship that the actress has with her teacher and uncle."
There's only one problem: Section 311.2(c) of the California Penal Code doesn't give the government the authority to prosecute a videotape for "child pornography" simply because the adults in it may look under 18.
In fact, the federal holding in the Ninth Circuit, which includes California, is that material featuring someone who "appears to be" a minor, or where the packaging "gives the impression" that minors are involved, is perfectly legal... at the moment. In further fact, those circumstances are the very ones which will be decided during this term of the United States Supreme Court, which will hear argument on the case, Free Speech Coalition v. Ashcroft, on October 30.
Undaunted, Anderson has fashioned a unique argument.
"They are squarely arguing that the statute, when it says 'depicts a person under 18,' means 'depicts a character under 18,'" Douglas explained. "And they not only are interpreting it, but in interpreting the statute, they say the statute says 'depicts' and means 'portrays,' and the word 'portrays' does not appear in that [criminal code] chapter. Moreover — and to me, this is a slam-dunk at this point — the last section of the chapter, and I believe it's 311.14, but I'm not certain of that; it's the last code section of that chapter — it talks about 'emancipated minors' and 'married women,' and it says essentially that an emancipated minor can have sex under-age on film... If a 'person' means a character, that would mean that in this movie, a person could say, 'I'm 14 years old and I'm an emancipated minor,' and that would be lawful. It's absurd."
Douglas points out in his Answer to Anderson's Memorandum in Opposition that he's only demurring to the child pornography charge, but he expects that if he wins his motion, the other charges will be dropped.
"They apparently genuinely believed that there were underage parties in there, and when they took it and ascertained that there was no one under age, they came up with this flaky theory. And only after they had made the determination they were going to run with this forced child pornography [theory] did they then decide to add the obscenity count. So the obscenity count is pretty much a gimme, and if I, as I expect to sometime next month, have the child pornography count dismissed, then we have a very anomalous obscenity prosecution, because this prosecution violates the unwritten L.A. standard, because there is nothing about the sex in this movie that is anything other than routine. The sex is routine for everybody."
This author reviewed the tape for the May, 1999 AVN and gave it three-and-a-half A's, as follows:
"With four cute babes in pigtails, miniskirts, sporting backpacks and affecting 'little girl' voices, and stirring dialogue like 'Choke on it, you little cunt' and 'Sodomize me, mister,' you know you've entered the realm of Max Hardcore.
"Of course, nearly the first thing to hit the screen is a notice that no one under 18 appears in this tape, so it's not as if Max is holding these gals out as actually being underage — so feel free to sit back and enjoy the fantasy.
"And damn it, it is fairly enjoyable. Max likes his blowjobs and he likes his anal sex, and this tape has plenty of both. His speculum makes a brief appearance, as do several sexual positions we've never seen anyone but Max employ — sort of backwards or upside-down mish and doggie anals — and there's actually hot running dialogue between Max and his partners during the sex — a rare commodity in tapes these days, and one we'd like to see more of. There’s also plenty of ass-to-mouth action, some points where Max alternately dips his wick in the girl's ass, then her pussy, and Lolita seems almost to choke on Max's schlong a couple of times — and that's just what Hardcore’s hardcore fans want to see.
"Marketing: You know Max and you know your customer base. If they’re a mesh, stock up, because this is one of Max's better ones."
(Perhaps worth noting is that one of the actresses here is named "Lolita," which means that the city is essentially arguing that if a woman gives herself that name, she's automatically making child porn.)
But overall, Douglas believes that there's more going on here than simply an overactive vice squad.
"In my opinion," Douglas told AVN.com, "the apparent urgency to proceed on these cases was motivated by the belief that there was going to be federal interest in federal funding [of local obscenity prosecutions], which seems at the moment unlikely, so I think these are particularly important to win to give them zero incentive to proceed with this. We could have won the next five cases, but as long as the feds were interested, L.A.P.D. and the L.A. City Attorney would have continued with it. But if Adam [Glasser] wins and [Max] wins, I think they're going to refocus their energies into more productive areas."
Mark Kernes
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