Story by Chris Graham
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The subject isn’t evolution, and the barristers aren’t William Jennings Bryan and Clarence Darrow. But the upcoming trial of a Staunton adult-video store owner on obscenity charges has some of that Scopes Monkey Trial flavor to it.
Doesn’t it?
I mean, on the one side, you have the fundamentalists who have been breathing fire about the invasion of porn into their sleepy hamlet since the day the local newspaper first broke the story back in the summer. And on the other side are the secularists who have themselves been breathing fire over the application of what they see as an outdated law by an overzealous to say the least prosecutor who is trying to enforce his morals on the population with the taxpayers footing the bill for his values crusade.
“It does make us seem a little bit more like bumpkins. And that’s unfortunate,” said Matthew Warner, a published novelist who moved to Staunton from Northern Virginia in 2005 with his wife, Deena, a graphic and website designer and administrator.
“Someone told me that this is what Staunton is going to be known for – shooting the dog and going after the porn store,” Warner said, referencing another Staunton story that made national headlines from a few years ago involving the shooting of a Downtown Staunton store owner’s dog in West Augusta.
“I was concerned about the children that live in the apartment complex that’s just a stone’s throw away. My biggest concern is that it appeared to be in a residential area and so close to where so many children live,” said Andrea Oakes, a former Staunton School Board member and Staunton City Council candidate who helped found the Citizens Task Force Against Pornography, which pressured the current city council to pass a zoning ordinance that would put restrictions on where adult-themed businesses can locate in the Queen City in the wake of the news about the opening of After Hours Video on Springhill Road.
“Our number-one goal was to get the ordinances on the books. That was our number-one focus. Our number-two focus was just to be a watchdog over the business that we had here in Staunton,” Oakes said. “Our intention was never to see this man put in jail. However, we did want to be a watchdog to make sure that whatever we could do to help the city out to make sure that no laws were being broken and especially to make sure that the secondary harmful effects do not end up hurting our children.”
Which brings us to the prosecutor who is viewed as a hero by some and an overlord by others – Ray Robertson, a 64-year-old who has been serving as Commonwealth’s attorney in Staunton since 1974.
“My job is to enforce the laws,” Robertson said in an interview in his office, before reaching to grab a legal book sitting on the right front corner of his desk.
“This is Volume 4 of the Code of Virginia – that’s the criminal code,” Robertson said. “There are ninetysome pages devoted in that code to crimes involving morals and decency. That’s what they call it. Things like the illegal types of gambling that there are in this state. Prostiution. Pimping. Obscene phone calls with the intent to harass. Indecent exposure. All those types of things. And one might argue that all those things are restrictions on the First Amendment – because they stop, they draw the line, at freedom of expression. And they are.
“Libel and slander are the same way. Can’t do them. Child pornography is the same way. Addictive drugs are the same way – all the drugs that we have laws against. You might like to express yourself in a certain way, but the General Assembly has weighed the pros and cons, and they’ve said no, it’s illegal,” Robertson said.
***
But it’s not a moral crusade – at least Ray Robertson doesn’t want to believe that he is on any kind of crusade, or maybe doesn’t want you to believe that.
“When I look out at my beautiful community, and I think of the potentials for AIDS and for venereal disease, as well as the degradation of women and the other crimes that I think can come as a result of it, and the law is right there on the books, I think we have to enforce the law. Because if I didn’t, that would be selective enforcement of the law,” Robertson said.
He brought up that term – “selective enforcement of the law” – several times in our 45-minute interview. It was obviously a sore point – the owner of After Hours Video, Rick Krial, who did not return a message seeking to set up an interview for this story, told The News Leader that he thought Robertson was engaging in selective prosecution because his store was targeted for prosecution while others in the city that were engaged in selling similar types of adult-video materials were not.
Of note here is that Robertson for all intents and purposes conceded that point in his interview with me – even, as you will see, as he tried to defend himself against the charge that he was engaging in selective enforcement.
“As far as any one individual is concerned, I would never engage in selective enforcement. I told my police when we first got wind, again, I don’t want to talk about that case,” Robertson said, invoking his own ground rules for our interview that he would not talk about the Krial case, before voluntarily breaking them, “but when we learned for the first time in history that an adult store, and that’s a euphemism for a pornography store, was coming to town, there’d never been anything like that before – and if places like Crossroads and Desires had these things in a small section, or in a back room, I didn’t know about it, because nobody had ever called it to my attention, there’d been no complaints raised – I told the police to go see what they’ve got, and you arrest anybody and everybody who’s selling it.
“When they went to Crossroads, whatever section that had been in there had been entirely taken down. As I understand it, at Desires, it was only available in a back room, and you had to know somebody to get in there. But I’ve never even seen that building, let alone had a complaint about it,” Robertson said.
“The only issue is whether the person sold it by himself or through an authorized agent, and whether it’s obscene. It’s not a case at all of freedom to choose. It’s not a freedom-of-choice issue. Because that battle is fought in the legislature, not in the courts. You can’t choose to do something that’s illegal. And if it’s obscene, selling it is illegal,” Robertson said.
Which would seem to apply, then, to all stores in Staunton that carry the kind of merchandise that got Krial his indictments – but that’s another issue for another day. The defense, headed up by famed adult-industry attorney Paul Cambria, seems to be trying to set up as much reasonable doubt about the prosecution as it can get away with – and in their view Robertson has given them more than enough rope to hang him in front of a jury, if the case gets that far.
“He hadn’t seen any of the material, and then just made the statement and has indicated that in his mind when a store opened that was dedicated only to adult material that that was the reason why he went after that store,” Cambria said, referring to the statement that Robertson made to The News Leader in August that he would not “allow dissemination of pornographic material in Staunton,” nearly two months before Krial’s store opened its doors and thus before Robertson or even a single patron could have a basic idea of what kind of product was going to be disseminated, and the degree to which said product could be considered to be obscene.
“Basically that’s what this is all about. The prosecutor here has a personal issue with this kind of material, and has a personal opinion that it shouldn’t be available in his community. And I think that that underestimates the level of sophistication in the community in these times. Especially with cable, satellite and other things where you can in your own living room or on your own computer can access this kind of material all day long, and actually material that is far more extreme in their depictions than this material, all day long,” Cambria said.
“When it comes to expressive material in a form of adult entertainment, why should a prosecutor be able to set himself up as an overall censor and project his own personal opinions into the community to the point where he pre-empts an adult making their own decision about this issue?” Cambria said.
***
But whether Ray Robertson has a personal issue with porn and is pushing the envelope with his prosecution is immaterial when it comes to this essential point – there is a law on the books prohibiting the dissemination of obscenity, and if a jury ends up agreeing with Robertson that the 12 videos that were purchased from After Hours Video between Oct. 15 and Oct. 18 are indeed obscene under the terms of the Virginia Code, then Rick Krial could go to jail.
“And that’s what bothers me the most about this – because there’s no way to make a universal standard about what is and isn’t obscene, even in Staunton,” Matthew Warner said.
“Rick Krial could get thrown in jail for selling these videotapes, but you empanel a different jury up there, another random collection of people out of our zip code, and they may have acquitted him because they didn’t find it obscene. So it’s really at the whims of people’s opinion and subjectivity – and violates due process because of that,” Warner said.
The instructions to a jury in the Krial case will likely be in line with the three-part obscenity test laid out by the United States Supreme Court in the 1973 case Miller v. California – which spells out as the questions to be answered by a jury empaneled in an obscenity case one, do applied community standards find that the material appeals to the prurient interest; two, is it patently offensive sexual conduct defined by state law; and three, does the work, taken as a whole, lack serious literal, artistic, political or scientific value?
“The second part of the test – which talks about, does it depict or deprive, describe in a patently offensive way, sexual conduct defined by law – all that means is, and the way that’s interpreted, and the way the jury is informed as to what that means, does it depict or describe sexual conduct in a way that substantially exceeds the level of acceptance in the community?” Cambria said.
“I always discuss this with jurors – and say, Well, think about your level of acceptance. We clearly draw the line at children. We wouldn’t accept that. But if you look at a discrete store that tells you what its content is, you know what’s in there, you know why you’re going in there, and it’s adult movies about adult subjects, about sexual activities that happen every day all over the world, and you make that choice, that’s acceptable. Just like it’s acceptable to have country music or the ability to hunt animals and so on. It’s not for everybody – but it’s an acceptable adult choice. It’s an acceptable area of conduct that if you’re an adult you should the ability to engage in it,” Cambria said.
The retort that we can expect from Robertson in court will focus the jurors’ attention at the outset on question one relative to “the prurient interest.”
“You’ve got to show that applying local community standards that on the whole it appeals to a prurient interest in sex – and prurient has been defined by the Supreme Court in different cases as ‘shameful,’ ‘morbid,’ ‘lewd,’ ‘lascivious,’ ‘erotic,’ ‘lustful,’ that sort of thing. The idea is that it attempts to sexually arouse. That’s what prurient is all about,” Robertson said.
“So if it does that, according to what the average Stauntonian would think, if it is presented in a patently offensive manner – that’s the second prong of the Miller test, and again, you apply local community standards to that – if they think it is presented in a patently offensive manner, and you would have to decide if some of those things that I’ve mentioned that go on in these movies are obviously offensive, either they are or they aren’t, by local community standards,” Robertson said.
The rejoinder from Cambria will jump from there to bring jurors into contact with his contention that the “idea and concept of contemporary community standards being the boundaries of your community is nonsense.”
“The entire world comes into your community through your television, through your radio, through your computer. Especially through your computer – people sit in their homes and access the world on their computer and make judgments far beyond the simple borders of their own community. I think those borders are now meaningless – because it’s your mind that counts, and your mind is boundless. It doesn’t have any boundaries at all,” Cambria said.
“So just because you live in Staunton, Virginia, or where I’m from, Fredonia, New York, you don’t think just in terms of Fredonia, New York, or Staunton, Virginia – you think in terms of, I’m an adult, what do I think is acceptable for other adults? That’s the bottom, bottom, bottom line,” Cambria said.
Robertson’s response?
“The other argument that they make is that this stuff has become so pervasive that it’s everywhere that we ought to just leave it alone. I can’t do that – first of all because I’m duty-bound to enforce all the laws, and that’s ninetysome pages of that criminal-law book. OK? I’ve got to enforce it. The General Assembly put it there to be enforced. And I’m not going to be guilty of selective enforcement by ignoring that,” Robertson said.
***
I’ve set this story up to read as a sort of preview of the courtroom drama that is on the horizon – so I think it would only be fair to frame it so that the lawyers get to present something in the way of closing arguments.
I believe that court procedure works such that the prosecutor gets the first and last word in this part of a trial, so …
Mr. Bryan, er, Mr. Robertson …
“Just like any other stop on the First Amendment, there are no minority rights when you make something illegal. And obscenity has been made illegal. That’s why I say (you, i.e. the jurors) will have to find that these movies are not obscene. (You) can’t go around repealing the obscenity law. (You) can’t say, Whoa, those movies were obscene, but we think people ought to have the right to choose. You can’t choose to disobey the law. If there are elements out there that think the law is wrong, go to Richmond, go to Congress. Repeal or amend the obscenity laws. But don’t try to do it in the court system where that’s not your duty.”
Mr. Darrow, er, Mr. Cambria …
“What’s the difference if you’re getting it off your television, or you’re getting it off your computer, or you’re getting it out of one of these stores? I have five children – they’re all girls, 4 to 18. I would rather have the material be available in an adults-only store than I would on a general-access computer – because I can control it better when it’s in a store, and they’re checking proof when somebody walks in the door. As opposed to when I’m in court, or my wife’s at the supermarket, and they can access the Internet. I wouldn’t ban it from the Internet for that reason – but it just makes it a little bit more difficult for me to police it.
“It’s like how we police tobacco, we police alcohol, we police cars – I mean, we do a lot of those things. Those are adult items, and adult entertainment is an adult item. We do what we can under the circumstances to protect our children. We don’t outlaw the product. That’s not how we do it. Otherwise the whole world would be relegated to only that which is fit for children. It would be a Disney world – and it’s not simply a Disney world. It’s a Disney world that’s also a Vivid Video world or a Hustler world.”
And now back to Mr. Robertson …
“My sense of obscenity is that it increases prostitution, it increases pimping. There is a strong, sleazy element that seems to be linked with drugs. It encourages sexually-deviant behavior. It’s very degrading to women. Most of the obscene movies that I’ve had to review are cases of male dominance over the females. They’ll slap them on their rear end. They’ll make them take it in as far as they can. They’ll ejaculate all over their faces. It’s basically submissive women who are the sex toys, the objects, of men they don’t even know who lord it over them on the screen.
“One of the things that I think the Congress and the General Assembly of Virginia are concerned about, and this has to do with the moral heritage of America, is the way they depict human sexuality. You probably grew up in a decent family. I know I did. And we’re taught just as part of our tradition and our soul, if you will, that human sexuality is more than just raw, animalistic sex, that it’s not only the way that we procreate and keep the species alive, and that if we believe in God as the creator that that makes it very, very special, but sex is good, it’s great, it’s wonderful. But true human sex is an expression of love, it’s an expression of respect for one another, it’s caring, it’s an expression of sharing, and it’s many, many wonderful things.
“But what I worry about – I worry about a couple of things. I worry about the increase in crime that can be caused if these things proliferate around my city. I worry about that. And I just worry about kids who grow up in situations where they don’t come from good families, and they don’t have a lot of moral character guiding them. They look at one of these movies, and don’t think that just because they sell these things to people that are 18 and older that they don’t – what happens when daddy gets tired of it? We had a case several weeks ago over at Shelburne junior high where a kid got a hold of one of these things, and he was showing it to all of his buddies. What happens to those kids who don’t have any moral guidance when they look at these, and that becomes their standard for what sex is all about?
“Why don’t we have an AIDS epidemic around here, but they have one in San Francisco, and another one in Las Vegas? It’s because we have a different view – but if this stuff starts to permeate our community, then you’re going to have an AIDS epidemic, you’re going to have a VD epidemic, because it tells them to have unprotected sex with strangers. Right off the bat, that’s the first message of these films.
“This is absolutely a legitimate prosecution. Any obscenity prosecution is a legitimate prosecution. OK? If I were going after Playboy magazine, that might be kind of iffy. Or if I were going after sex toys, that would be kind of iffy. I mean, I can’t even go after papers and bongs unless I can tie them to drugs – because they can be used for other purposes. You don’t go after things that are pretty easily refuted as not being illegal. You go after stuff that – I mean, the law says there’s absolutely no First Amendment protection for obscenity. They’ve said it again and again. That’s all. It’s just a question of whether the material being prosecuted is obscene or not. And I would never go after stuff that I felt wasn’t obscene.”
Chris Graham is the executive editor of The Augusta Free Press and The New Dominion.
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