The New York Penal Code makes it a crime to display sexually explicit material in a store window, showcase, rack, wall, door, or in any other manner that is visible to the public. The New York Penal Code defines sexually explicit material as being depictions that feature the human body, or parts of the human body, that are designed to predominantly appeal to a prurient interest in sex.
Elements of Public Display of Offensive Sexual Material
The elements of public display of offensive sexual material include the placement of sexually explicit material in view of the public. The location in which the sexually explicit item is placed has to be open to the general public.
Example of Public Display of Offensive Sexual Material
Sam’s is a corner market that sells adult magazines. In order to promote the adult magazines, the owner of Sam’s placed poster on a wall that depicted a couple in the act of sexual intercourse. The purpose of the poster was to advertise the adult magazines the market sold.
Because of the placement of the poster in a public setting, a charge of public display of offensive sexual material could be placed against the store owner and any person who may have placed the explicit poster on the wall in the first instance.
Another example involves a person who places a sexually explicit poster on an exterior window of his or her apartment. Because the exposure is outward to the general public, the renter of the apartment, the person who placed the poster in the window, might face a charge of public display of offensive sexual material.
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(212) 300-5196Sentence for Public Display of Offensive Sexual Material
The offense of public display of offensive sexual material is a class A misdemeanor. A person convicted of this crime can face a jail sentence of up to one year. In the alternative, a person convicted of public display of offensive sexual material can be sentenced to probation for three years. A judge can also impose a fine upon a conviction for public display of offensive sexual material.
Defenses to Public Display of Offensive Sexual Material
A New York criminal defense lawyer can provide legal representation to a person charged with public display of offensive sexual material. A defense that could be mounted by an NYC criminal lawyer is that the space in which the allegedly offensive material was displayed or posted is not a public area. For example, if an adult’s only story displays sexually explicit material, a defense could be made to a charge of public display of offensive sexual material because the space is not open to the general public.
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Another potential defense would be that the material in question does not qualify as being sexual in nature. This is an objective finding, but it is a potential defense that an attorney may elect to pursue on behalf of a client charged with public display of offensive sexual material. There are some court cases that provide guidance in this regard.
You own a small boutique in Manhattan and recently placed an artistic photograph featuring partial nudity in your storefront window as part of a gallery promotion. A police officer has now informed you that you may be violating New York Penal Law 245.11 and could face criminal charges for the public display of offensive sexual material.
Can I really be charged with a crime for displaying artwork with nudity in my store window, and what are my legal options?
Under New York Penal Law 245.11, it is a misdemeanor to publicly display material that predominantly appeals to a prurient interest in sex, including depictions of the human body visible from a public space such as a storefront window or showcase. However, there is an important distinction between material that is purely artistic in nature and material that meets the legal threshold of being designed to appeal to prurient interests — a distinction rooted in First Amendment protections and the standards established in Miller v. California. An experienced attorney can argue that your display has legitimate artistic value and does not fall within the narrow definition of offensive sexual material under the statute. We would review the specific image, its context within the gallery promotion, and any community standards arguments to build the strongest possible defense or seek a dismissal of the charges.
This is general information only. Contact us for advice specific to your situation.
A person facing public display of offensive sexual material charges retains legal counsel by firth scheduling an initial consultation. At an initial consultation, an attorney provides an overview and evaluation of a case. This includes possible defenses to a charge of public display of offensive sexual material.
A prospective clients also has the opportunity to ask questions about his or her case and prosecution for public display of offensive sexual material. As a general rule, a criminal defense attorney in New York does not charge a fee for an initial consultation in a public display of offensive sexual material case.
