“Suggestion of Sexual Conduct Alone Cannot Constitute Obscenity,”

Start at Bedtelyon v. State, a decision of the Indiana Court of Appeals today in an opinion of Judge Leeanna Wissmann and Judges Edward Najam & Nancy Vaidik

We are guided by the law. Please read: [the Indiana]Act [which tracks the First Amendment obscenity exception -EV]It is considered obscene if

(1) A person of average intelligence finds that the predominant theme or performance is appealing to their sexy urges.

(2) A matter or performance that depicts or describes in an offensive manner sexual conduct.

(3) A performance or matter as a whole lacks significant literary, artistic, politically, or scientific merit.

Statutes define sexual conduct to include:

(1) Sexual intercourse, or any other sexual conduct (as described in IC35-31.5-2-221.5).

(2) Display of the exposed genitals within the context of masturbation and other sexual activities;

(3) Exhibition of the exposed genitals by a minor under 16 years old;

(4) Suicide-masochistic and other forms of abuse

(5) Sexual intercourse with or any other type of sexual conduct, as defined by IC 35-31.5-2-221.5.

“‘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.” Merriam-Webster’s most recent entry describes “depict” to be “to depict by or as though by a photograph.” This definition defines “describe” as “to inform someone about the appearance, sound and smell of (something) or of (someone). To say “what something is like”, or “to present or give an account” of it in words. …

They were not admissible into evidence and it is impossible to prove that they were seen by the court. The court instead relied upon the testimony of Bedtelyon’s therapist, probation officer and other witnesses who saw the videos and vaguely described their content. They testified that cartoons featured “provocatively dressed” women, though they were never completely naked. Animations depict animated characters experiencing incestuous attraction. The evidence indicates that the videos may have sexual themes and a tone that is erotic. The State didn’t provide evidence to support sexual conduct. As defined in statuteIt was described or depicted, not merely implied.

The first video shows the following: After my memory loss, my mother and sister pretended to be expecting my babies.In order to pretend that they care for each other’s brother and sister, the titular mother is a sibling. According to Bedtelyon, the probation officer said that Bedtelyon had conceived them and was carrying their children. {“Bedtelyon” testified that no woman was in fact pregnant. The video’s title supports this assertion. Considering only the evidence in favor of the judgment, however, we accept Bedtelyon’s probation officer’s description here.} He was clearly loved by his sister.  The video strongly suggests incestuous sex, although it is not shown or described. Even though one of the two main characters becomes pregnant, it is clear that this is the case. We don’t have evidence to show or describe sexual behavior in the video.

Video 2 I seduced my Cousin, and let him do everything he wantedThis story features a 16-year-old girl who tells her story about how she fell in love with her cousin, a male sixteen year-old. After much effort in trying to seduce, [him]He spent the evening cuddling and kissing her all night.  Both begin to date, and they argue about how to reveal their relationship to their families. None of these actions or descriptions meet the definition of sexual conduct as set forth in the statute. “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. Multiple witnesses presented evidence that characters weren’t nude and no witness testified to the fact that any character displayed their genitals. It is difficult to conclude that this testimony represents the sexual conduct that Obscenity Statute intended.

Third video I am the Seventh Sextuplet girl and I am a boyStars sextuplets are the seventh of six, with the seventh identifying as a boy. {Careful readers will note that the sextuplets have six siblings and not seven. The record contains no explanation for this discrepancy.} The video ends with two of his sisters falling for him.

They feel his bulging muscles. The sisters are constantly rubbing their brother’s back, making him uncomfortable. 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 fails to portray or describe more than implicit sexual intercourse. The fact that the sisters “all over” their brothers and were “in bed with them” isn’t “sexual conduct,” as it is defined in statute. Although the content may be suggestive, it is not obscenity. If only sexual suggestion was enough to trigger the Obscenity Statute censors would be trained to focus their attention on clear constitutional expressions from books to soap operas and 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.” According to Bedtelyon, the videos are concerning as their contents “feed deviant fantasies.”  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.” This is where the probation officer was correct. According to the United States Supreme Court, only obscene materials can be regulated if they “depict/describe patently offensive hard core’ sexual behavior specifically as defined by the state law. …

The State defends the revocation by invoking Fordyce v. State (1991d. 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 described the “various sexual interactions” between mother and son as well “sexual encounters” between mother, daughter, friend and teenage boy. According to the State, these books were insufficiently detailed because they are not legally binding. FordyceThe videos Bedtelyon saw were also obscene. Both feature incest, and both do not include images of nudity.

This argument ignores the real reason for what made these materials. Fordyce obscene. The Obscenity Statute states that not only was there incestuous attraction in the books, but that it also depicted and described incestuous sexual behavior. However, FordyceIt does not describe the acts described in the books. However, the Court’s use of the language implies that sexual conduct is as defined by our Sexual Conduct Statute. This Court’s obscenity finding required the Court to require such acts. The nudity issue is also a red herring. Appeal is limited to whether the videos describe or depict sexual conduct in a way that offends. However, the State does not engage meaningfully in this inquiry. It instead cites broadly the testimony of the probation officers about the sexually suggestive subjects in the videos and concludes that “the probation office described sexual conduct.” It is impossible to infer sexual misconduct from this 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….