LITTLE ROCK, AR – A bill that would “enhance the penalties for obscenity offenses under certain circumstances” in Arkansas has been endorsed by the House Judiciary Committee and now will advance to the full House of Representatives for consideration, according to reports from the Arkansas News Bureau (ARB).House Bill 1569, authored by Representative Shirley Walters, (R-Greenwood), would greatly increase the financial penalty the state can impose for violations of the Arkansas Law on Obscenity, which is codified in Title 5, Chapter 68.

The as-yet-untitled Act is described in the draft proposal of HB 1569 as “an act to enhance the penalties for obscenity offenses under certain circumstances; and for other purposes.”

Under the language of HB 1569 as it is currently proposed, “if a defendant has derived pecuniary gain from the commission of a felony offense under… the Arkansas Law on Obscenity… then upon conviction of the felony offense the defendant may be sentenced to pay a fine not exceeding two hundred fifty thousand dollars ($250,000).”

Currently, the maximum fine available to the State under the law is $15,000, under the provisions of Arkansas Code § 5-4-201, which states that a “defendant convicted of a felony may be sentenced to pay a fine…. Not exceeding fifteen thousand dollars ($15,000) if the conviction is of a Class A felony or Class B felony.”

Underscoring a sense of urgency on the part of the bill’s author, HB 1569 contains an “emergency clause” designed to speed implementation and enforceability of the law, should it pass.

The HB 1569 emergency clause states that it is “found and determined General Assembly of the State of Arkansas that children and other citizens of this state are being exposed to harmful material by persons who violate obscenity laws for profit; that any person including an individual or an organization or an agent of an individual or an organization that obtains pecuniary gain from a felony violation of the obscenity laws should be subject to an increased fine; and that this act is necessary because an increased fine will deter future felony violations of obscenity laws.”

The emergency clause continues that “Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

During the Judiciary Committee hearings, Sebastian County Prosecutor Gunner DeLay testified that the arrival of adult chain stores in Johnson and Sebastian counties had prompted prosecutors to stump for harsher penalties for obscenity violations, according to the ARB.

Three employees of the X-Mart Adult Supercenter in Clarksville recently were arrested on obscenity charges. X-Mart is part of a Florida-based chain that also owns a store in Fort Smith, AR.

Testifying in front of the Judiciary Committee, DeLay argued that the state needs to increase the penalties that can be directed at the companies that own the stores, in order for their obscenity fines to have any impact.

“The problem is that right now, if we go after the corporation, we can only hit them with a fine of $15,000,” said DeLay. “And folks, for a corporation that’s making millions and millions of dollars off of the sale of obscenity, that’s not much of a penalty.”

DeLay cited a number of offenses for which convictions can carry $250,000 fines, including “knowingly or recklessly releasing a hazardous substance into the environment,” making pirated copies of copyrighted films, and participating in attempted human cloning, according to the ARB.

“As I look at all of these, I think the common theme is that these are not crimes where the victim is an individual but our society and our community at large,” DeLay said. “We have the same situation when you’re talking about selling obscene material, that the victim of that crime really is the community.”

In an interview with the ARB, an attorney for the X-Mart chain correctly noted that the issue of what is or isn’t “obscene” simply is not as clear as DeLay suggested in his testimony.

“Materials are not obscene in this country until a jury says they are,” observed attorney Gary Edinger, who is based in Gainesville, FL.

Drawn from the Supreme Court’s decision in the landmark case Miller v. California, the Arkansas statutory definition for “obscenity” states that “’Obscene material’ means a material that: (A) Depicts or describes in a patently offensive manner sadomasochistic abuse, sexual conduct, or hard-core sexual conduct; (B) Taken as a whole, appeals to the prurient interest of the average person, applying contemporary statewide standards; and (C) Taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Edinger explained that what the definition means is that it is up to jurors in an obscenity case to determine what is, or is not, “obscene,” and do so according to the standards of the given community from which the jurors are drawn.

Edinger indicated that he’s not particularly worried that his clients would be found to be selling material that such a jury would find “obscene.”

“My understanding is the store stays well on the right side of the line,” Edinger said.