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Virginia is for Lovers; But Not When it Comes to the Rick Krial Obscenity Trial

Virginia- All over Virginia, there are women hanging around government buildings brazenly baring their breasts.

In libraries, assembly halls, even inside the DMV, the naked bosoms are downright unavoidable. The ubiquitous nudity can even be found in the schools, out in the open, in front of children as young as six years old. And there’s one woman behind it all.

She is known simply as Virtue, and while she may not be a household name, hers is clearly the Commonwealth’s most memorable mammary. She’s the triumphant woman on the state flag, her left foot atop an anonymous king’s dead body, her left hand clutching a sword, and her left breast fully exposed.

Virginia is the only state in the union to feature any kind of nudity on its flag, yet lately the Old Dominion seems to be one of the states least comfortable with showing skin anywhere else.

In courtrooms across the Commonwealth– with Virtue’s voluptuousness visible in every one of them– and in the court of public opinion, people from small-time merchants to big-time college presidents are being tried for being too frank about, too permissive of, or too explicit in depicting sex and the naked body.

As statewide attitudes toward social freedoms are supposedly becoming more liberal, and its voting patterns more blue (just ask Mark Warner, Tim Kaine, or Jim Webb), what’s got Virginia turning red?

Contrary to the popular slogan, Virginia hasn’t always been for all of its lovers. The state has a long history of attempting to regulate consensual sex. In 1778, Thomas Jefferson himself proposed that sodomy (understood then and now to mean any sexual act that could not result in procreation) “be punished, if a man, by castration, if by a woman, by cutting thro’ the cartilage of her nose a hole one half inch diameter at the least.” (This was just two years after he composed the Declaration of Independence.)

While Jefferson’s perhaps cruel and definitely unusual idea was never made law, plenty of other sex-related bills did make it onto the books and stayed there until very recently. In 1924, the General Assembly passed the “Racial Integrity Act,” prohibiting interracial marriage. It took a 9-0 Supreme Court decision in the 1967 case of Loving v. Virginia to allow the District of Columbia marriage between Caroline County’s Mildred Jeter (an African-American and Rappahannock Indian woman) and Richard Perry Loving (a white man) to be recognized as a legal union, thus striking down all anti-misegenation laws as unconstitutional.

By 2005, sodomy among consenting, unmarried adults (even an adult consenting to sex with himself) was still a crime punishable by up to five years in prison. That’s when Muguet Martin successfully sued her ex-boyfriend Kristopher Ziherl in Richmond Circuit Court for giving her herpes through unprotected sex when Ziherl knew he was infected with the virus and didn’t tell her.

Ziherl appealed the ruling on the basis that Martin could not collect damages based on their sexual relationship, because the two were not married and thus their having sex was an illegal act. When Judge Theodore Markow sided with Ziherl, Martin’s appeal went to the state Supreme Court, where a unanimous court ruled the statute unconstitutional and scrapped Virginia’s centuries-old sodomy law.

Of course, while gays and lesbians across the Commonwealth are now free to mind their own business in the bedroom, they just can’t do it without living in sin. In 2006, Virginia voters overwhelmingly approved a constitutional amendment not only defining marriage as being between a man and a woman, but also precluding the state or any locality from “creat[ing] or recogniz[ing] a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage,” without making any distinction of whether those unmarried individuals are straight or gay.

The city of Staunton voted almost identically to the rest of the state, with 56 percent of its electorate voting in favor of the amendment, compared to 57 percent statewide. And while the Shenandoah Valley town’s attitudes may have been the norm on the issue of men lying down with mankind as with womankind, its prosecutor is the vanguard of opposition to films of people lying down with anyone.

In October, an adult video store called After Hours Video opened in a largely residential, but nevertheless out-of-the-way location in Staunton. Less than a month later, Staunton Commonwealth’s Attorney Ray Robertson hit its owner, Rick Krial, with 12 counts of obscenity, eight of which were felonies, for selling 12 DVDs to undercover police officers on four different occasions. Then in January, Robertson filed 10 more obscenity counts against the store’s cashier Tinsley Embrey for being the one to actually sell the officers the porn.

On Thursday, March 6, Staunton found out this is only the beginning. Judge Thomas Wood set Krial and Embrey’s trial date for June 17, but this saga could have multiple sequels, as this first trial focuses only on the first four of the combined 22 charges currently facing the store owner and his employee, leaving open the possibility of three or more additional trials– all based on the purchase of less than two dozen DVDs. Why so many trials?

“You’re dealing with 24 hours’ worth of porn,” answers Robertson. “If you require a jury to watch all that, they could become bored or desensitized to these acts.”

In light of this prospect, Robertson proposed to Judge Wood that the prosecution choose two movies to be representative of the other 10 purchased by Staunton police.

“They decided how many movies to purchase,” says Krial attorney Paul Cambria, a Buffalo-based obscenity lawyer made famous by 30+ years of courthouse arguments on behalf of Hustler publisher Larry Flynt. “We’re the ones disadvantaged by multiple trials because of the incredible expense to my client.”

Fellow former Flynt attorney Louis Sirkin, who is defending cashier Embrey, believes that Robertson’s proposal of trying all the charges on the basis of one or two representative videos was downright unconstitutional.

“Each of these movies is presumed not to be obscene,” the Cincinnati-based Sirkin said. “We’re not willing to say if you find two obscene, the other 10 are obscene. You’re taking away that presumption, and that’s a chilling effect. If [the prosecutors] feel it’s a handicap, they chose their own handicap.”

While Judge Wood agreed that multiple trials were cumbersome, he informed the out-of-town defense attorneys, “The Commonwealth is normally entitled to a great deal of discretion, and I’m not in a position to order them otherwise.”

Robertson eventually decided to throw out the other two videos from the first purchase for now, and instead focus this initial misdemeanor trial on two titles: Sugar Britches and City Girls: Extreme Gang Bangs.

Addressing reporters afterward, Sirkin said that while he wasn’t happy with the need for multiple trials, “I hope jurors remember that Virginia was one of the original 13 colonies, and the importance of the American way, and the liberties people came here for in the first place.”

Meanwhile, prosecutor Robertson said that multiple trials were not only necessary, but more practical.

“My thoughts are that I would be totally disgusted and sickened, and upset with somebody if I were a juror having to watch all this,” he said. “This way, it’s only four hours, and they’ll definitely get an idea of it.”

Robertson admits he has watched all 24 hours of porn the police purchased, and has not been shy about offering explicit description. In December he told the Hook, “I’m going after things like double penetrating women, slamming them in both orifices, multiple strangers ejaculating on the faces of women.”

In January he said, “In just about every one of these things, you’ll see one guy inserting his penis into a woman’s vagina, and another guy inserting his penis into her anus, and then that guy puts it in her mouth, again, and again, and again.”

Asked why he speaks of the case in such graphic detail, Robertson said, “Why not? You need to know what you’re dealing with. Nobody’s attempting to gross anybody out. The jury is going to be required to look at it, and people need to know what this is.”

As for what will happen to the other 18 obscenity counts if Krial and Tinsley are acquitted in the first trial, Robertson said, “I’m not going to give up after one.”

Robertson is not the only prosecutor trying After Hours. Matthew Buzzelli is a member of the federal Obscenity Prosecution Task Force whose services are on loan to Robertson from the Justice Department. While the federal government has no jurisdiction, the Justice Department volunteered Buzzelli, he says, because of Staunton’s relative proximity to Washington.

“If this were in Alaska, I probably wouldn’t be doing this,” says Buzzelli, “but we have the resources in terms of what kinds of briefs to file, arguments, motions, instead of Mr. Robertson having to reinvent the wheel.”

Sirkin said he’s only seen a federal prosecutor involved in a state-level obscenity case “once or twice in my career” and wondered if the DOJ didn’t have better things to do.

“I find there are much more important problems,” he said, “like how people from the White House won’t testify before Congress. But here they are worried about the sale of videos to consenting adults.”

Buzzelli emphasized that he was not brought in as a ringer to even the playing field against Krial and Embrey’s nationally-renowned counselors.

“Mr. Robertson is a capable lawyer,” he said. “He’s been prosecuting for over 30 years; he can handle these guys.”

All parties are due back in court on May 27 at 8:30am for a hearing on additional pre-trial motions.

By that time, the Commonwealth could have another complex case of sex, eyes, and digital videotape to prosecute.

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