Prosecutors attempting to convict a Democratic U.S. Senate candidate on rarely leveled obscenity charges would have to clear a number of constitutional hurdles to win a conviction, attorneys and legal scholars said.
Richland County prosecutors indicted Democratic U.S. Senate nominee Alvin Greene last week on two obscenity-related charges, after Greene was accused of showing a pornographic image to a University of South Carolina student last November. Greene faces up to five years in prison on a felony charge and up to three years in prison on a misdemeanor charge. Both carry a maximum fine of $10,000.
State solicitors said they charge only a handful of people with the crime each year. The victim's mother has publicly pledged to pursue prosecution, which attorneys said made it more likely prosecutors pushed to indict Greene. The 32-year-old has become a national political celebrity since his surprise primary win June 8. He has refused calls to end his candidacy in light of his legal issues.
Prosecutors will have to convince a jury Greene's actions meet a complex three-part standard defining obscenity, established in a landmark 1973 U.S. Supreme Court case, said Charleston School of Law professor John Simpkins:
The average person, applying community standards, would find the work as a whole appeals to prurient interests
The work is patently offensive
And the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Fail to prove one part of the standard, said Simpkins, a constitutional law instructor, and the entire case would fail.
"I don't think by any means this is a clear-cut case," Simpkins said. "That's not unusual in these cases."
Fifth Circuit Solicitor Barney Giese declined to comment on the pending case, as did Greene's attorney, Eleazer Carter.
"He doesn't want me [to] talk about that at this time," Carter said.
According to university police reports, Greene approached a female student in a campus computer lab and asked for her phone and room numbers. She declined. A few minutes later Greene showed her what she said was a pornographic image on his computer screen. As the female student left the lab located in a residence hall, Greene asked if he could go up to her room.
Both Simpkins and Columbia defense attorney Jan Strifling, who has handled obscenity cases, said the case hinges on whether a jury considers obscene what Greene showed the student. In an interview with Fox News Channel, the alleged victim said the image contained "woman-on-man porn ... pretty much sex."
"Those are all jury questions," Strifling said of the U.S. Supreme Court's standards.
If other students had accessed similar images in the computer lab, that could undermine an argument the image failed to meet community standards, Simpkins said, but emphasized that "community" included more than just the USC campus.
"If he's in a university computer lab and can access this material," Simpkins said, "that may say something about the acceptability of this."
State prosecutors said they do not often charge people with obscenity crimes on which Greene was indicted. The 13th Judicial Circuit, which includes Greenville and Pickens counties, has charged 12 people with the felony charge and 11 people with the misdemeanor charge in the past five years. Results of those cases were unavailable.
John Crangle, an attorney with Common Cause, thinks prosecutors might have indicted Greene to pressure him to drop out of the U.S. Senate race because he is a liability for other Democratic candidates. Strifling disagreed, noting Greene was charged months before he became a candidate.