Obscenity and the law: Is it possible for a jury to apply contemporary community standards in determining obscenity?

Abstract

This paper examines whether a random sample of adults can apply local contemporary community standards regarding the acceptability of explicit sexual material. Inasmuch as the legal test employed in the U,S. for determining obscenity requires a jury to apply such standards, the research examines the practicality of such an approach. The analysis indicates that the best predictor of what an individual will perceive the community standards to be is the individual's own standards concerning sexual material. The implications of these findings are examined from both a legal and social science perspective. In addition, the consequences of not providing jurors information concerning local standards are discussed.

Social analytic investigation of hostile work environments: A test of the reasonable woman standard.

“…Perhaps the study of community standards that make up obscenity law may shed some light on this problem. Scott, Eitle, and Skovron (1990) report that when citizens were asked to identify materials that patently offend the members of their community, they resorted to examining their own sensibilities in order to give meaning to the community standard. It is likely that the false consensus effect which posits that people use their own personal views to estimate the consensus of others (for reviews see Fiske & Taylor, 1991; Marks & Miller, 1987; Mullen & Hu, 1988) is also at work in sexual harassment judgments.…”

“…As is the case with obscenity (Scott et al, 1990), when people are asked to adopt the perspective of another they tend to rely on their own beliefs and attitudes. In order to make the separation between the reasonable person and reasonable woman standard more than a legal fiction, it may be necessary for expert witnesses to describe to the trier of fact, either through social framework testimony (i.e., existing empirical evidence of how women and men generally differ in their evaluations of social-sexual conduct) or through social fact testimony (i.e., newly collected empirical evidence demonstrating how reasonable women would view the offending behavior complained of in the case at bar) (Monahan & Walker, 1991), the types of unwelcome social-sexual behavior that reasonable women working in situations similar to those experienced by the plaintiff would find “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment” ( Meritor, 1986, p. 58).…”

Psychological jurisprudence and the information processing paradigm

“…The second article by Stalans and Diamond (1990) invoked Kahneman and Tversky's (1982) "simulation heuristic" to hypothesize that subjects evaluate sentencing severity by bringing to mind attributes of the typical criminal. To the extent that such subjects assign severe attributes (e.g., ransacks a burglarized place) to the steroetypical criminal, they perceive judicial sentencing as lenient.…”