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After Hours Video Store Opening has Officials Already Discussing Obscenity Prosecutions

STAUNTON, Virginia – Staunton Commonwealth’s Attorney Ray Robertson said Friday he is prepared to present obscenity cases to a city grand jury should an individual or local police present the material to him.

Speaking of the city grand jury, he said, “I’ll let seven random individuals decide.”

Robertson’s announcement comes in response to the recent opening of the After Hours adult video store in the city.

He made it clear that he would not go after anyone for selling sex toys or publications such as Playboy magazine.

“I’m talking about hard-core pornography,’’ he said.

Robertson said discussion of regulating such businesses is more than a zoning matter.

“I’ve heard a lot in the area about zoning regulations,’’ Robertson said, but there are specific state laws dealing with obscenity.

The prosecutor said it would be up to the grand jury to apply the community standards test set by the U.S. Supreme Court in the 1970s and decide whether the material was obscene and thus criminal.

Robertson said the grand jury would have to determine if the material had a prurient interest in sex as its dominant theme, and taken as a whole, lacked any “serious literary, artistic, political or scientific value.”

The prosecutor wants the public to know he will enforce the state laws against obscenity, just like any other law.

“This office is charged with the responsibility of enforcing the criminal law. We do not make the law, nor do we choose which laws to enforce. We work tirelessly to go after every type of criminal and every type of crime,’’ Robertson said.

Robertson said one of his concerns about porn shops is what happens in communities after such businesses open.

“My concern is that it [pornography] causes more crime,’’ he said.

Robertson recalls porn shops opening in a Roanoke neighborhood, and said drugs and prostitution soon followed.

“This stuff breeds more crimes,’’ he said.

Robertson will now wait to see what comes to his office.

“I will wait until the police or private individuals bring it to me,’’ he said.

A first offense conviction under Virginia obscenity laws is punishable by up to 12 months in jail and a $2,500 fine.

A second offense is a felony, punishable by up to five years in prison.

One legal expert said Robertson faces an uphill battle.

“It really is very difficult to meet the legal defnition of obscenity,’’ said Ann MacLean Massie, a professor of constitutional law at Washington and Lee University.

Massie said the community standards issue is a more relative one.

“When you bring in community standards something that is legal in Los Angeles is not in Staunton,’’ she said.

William Araiza, associate dean of the Loyola Law School in Los Angeles, said obscenity cases would not be easy to bring there.

“My sense, it would be incredibly difficult in Los Angeles, but in Virginia you might get a conviction,’’ he said.

Araiza agreed with Massie that meeting the obscenity standard set in the landmark U.S. Supreme Court case of Miller vs. California would be difficult.

But if such a standard can be met, Araiza said Robertson would be smart to say why he is bringing the case.

Robertson alluded to the problems pornography has caused in other communities.

“If you can get past the Miller test, it is politically astute to say ‘this is why I am doing it,’ ’’ Azaira said.

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