Across Virginia, a woman hangs around government buildings brazenly baring her breast. In libraries, assembly halls, even inside the Department of Motor Vehicles, the naked bosom is downright unavoidable. The nudity can even be found in schools, out in the open, in front of children as young as 5 years old.
She’s known simply as Virtue, the triumphant female figure on Virginia’s state flag, her left foot atop a king’s dead body, her left hand clutching a sword, her left breast fully exposed.
Much of the state’s recent sex-related policy debate, in all the courtrooms and classrooms under Virtue’s watchful eye, has focused on bright-line issues: gay marriage, abortion, child pornography. They’re issues that stir up strong feelings, but there’s at least consensus on their definitions.
When it comes to mundane sex-related crimes, on the other hand — obscenity, indecency, adultery — things get a little muddy. The level of public attention and state prosecution is dependent on individual personalities, geography and arcane statutes. As a result, the way government handles such issues is uneven and sometimes perplexing.
Consider: The state seal proudly bears Virtue’s left breast, but Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show cost CBS $550,000 — the largest fine in the history of the Federal Communications Commission. There are, of course, crucial contextual differences, but the raw configuration of the images themselves are strikingly similar. Nevertheless, one’s the state banner, while the other is simply banned.
In October, an adult video store called After Hours Video opened in a largely residential, but nevertheless out-of-the-way location about 100 miles northwest of Richmond in Staunton. Displeased with its arrival, the local commonwealth’s attorney, Ray Robertson, sent in undercover police officers who purchased a total of 12 X-rated DVDs on four different visits.
Less than a month later, Robertson hit After Hours’ owner, Rick Krial, with 12 counts of obscenity, eight of which were felonies. In January, Robertson filed 10 more obscenity counts against store cashier Tinsley Embrey for being the person who actually sold porn to the officers.
On March 6 Staunton found out the bust was no joke. Circuit Court Judge Thomas Wood set Krial and Embrey’s trial date for June 17. But this saga could have multiple sequels. The trial focuses only on the first four of the combined 22 charges facing the store owner and his employee, leaving open the possibility of three or more additional trials — all based on the purchase of a dozen DVDs. Why so many trials?
“You’re dealing with 24 hours’ worth of porn,” Robertson answers. “If you require a jury to watch all that, they could become bored or desensitized to these acts.”
Paul Cambria, Krial’s attorney, calls the strategy unfair.
“They decided how many movies to purchase,” says the Buffalo, N.Y.-based obscenity lawyer made famous by 30-plus 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.”
While Judge Wood agreed that multiple trials were cumbersome, he informed the out-of-town defense attorney, “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.”
Robertson says he’s watched all 24 hours of porn the police purchased, and has not been shy about offering explicit description (sensitive readers stop here). In December he told the Charlottesville weekly The Hook, “I’m going after things like double penetrating women … multiple strangers ejaculating on the faces of women.” In January he added that in each of the movies, similar action happens “again, and again and again.”
Asked why he speaks of the case in such graphic detail, Robertson says: “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 18 other obscenity counts if Krial and Tinsley are acquitted in the first trial, Robertson says, “I’m not going to give up after one,” and he’ll have some help from the federal government.
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 small-town Staunton’s relative proximity to Washington, D.C.
“If this were in Alaska, I probably wouldn’t be doing this,” Buzzelli says, “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.”
Louis Sirkin, who is defending cashier Embrey, says he’s seen a federal prosecutor involved in a state-level obscenity case only “once or twice in my career” and wonders if the Justice Department doesn’t have better things to do.
“I find there are much more important problems,” he says, “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.”
How and when prosecutors go after obscenity and indecency or invoke the state’s arcane sex laws rests largely on personality, says David Hicks, Richmond’s former commonwealth’s attorney.
“In the end how far a prosecutor can go is always going to be governed by what a jury from that community is willing to let that prosecutor do,” he says. “That being said, sometimes the priorities of a prosecutor’s office are not always determined by any big policy discussion or big thought, but simply by the willingness of one or two prosecutors or one or two police officers to pick up the ball and begin running with it.”
Running the ball is, perhaps, an apt metaphor for the personality that connects two recent high-profile indecency cases: Michael Powell, son of former Secretary of State Colin Powell. He was the FCC chairman who handed down the fine for Jackson’s Super Bowl costume slip. After leaving the commission in 2005, Powell joined the College of William and Mary’s Board of Visitors and became rector in spring 2006. He found himself at the fore of yet another public decency scandal when the Sex Workers’ Art Show landed on campus.
When Delegate Brenda Pogge (R-Williamsburg) first heard such a show would take place in her district, she dashed off an open letter to then-William and Mary President Gene Nichol, demanding that he step in to cancel the performance. Although this was the workers’ third annual visit, criticism had been mounting.
In February of this year, the show, performed and organized by sex workers to humanize the industry’s practitioners and showcase their art, was scheduled for another stop at the Williamsburg college. The show offers up explosive stuff — a Style Weekly review at the time noted that one of the more extreme acts featured an “ignited anal sparkler follow[ing] a poignant poetry reading.”
In consultation with the Office of the Attorney General, the university added clauses to the contract stating that school administrators would determine whether the show was too obscene to return in the future and banned filming the show. Kent Willis, executive director of the Virginia chapter of the American Civil Liberties Union, says his group is “strongly considering” filing a lawsuit against the school to prevent it from blocking the show’s return.
Still, the cries of outrage grew. On Feb. 7, four potential appointees to the William and Mary board awaiting the General Assembly’s approval were chastised by an exasperated House of Delegates’ Privileges and Elections Committee while the state press corps snickered in the lobby.
Surely none of this escaped Powell, who subsequently informed Nichol that his contract would not be renewed the following year. Nichol had already clashed with the school administration several times in his short time at the school. He resigned a week later, declining to finish his term.
“It is critical to explain that this decision was not in any way based on ideology or any single public controversy,” Powell wrote in a statement.
Even so, 50 miles away in Richmond, the Sex Workers’ Art Show was performed at the Gay Community Center of Richmond the next day. (It had been performed at Virginia Commonwealth University in 2007, but a small, albeit legitimate, technicality with the application process kept it off campus in 2008.)
But Richmond is a different city, and community standards are the magic words in obscenity cases. The legal standard on the books dates to the 1973 U.S. Supreme Court case Miller v. California. In it, the justices sought to define what kind of speech was obscene — and thus unprotected by the First Amendment — and set a three-part criterion known as “the Miller test”:
“a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
“b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law, and
“c) whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.”
Still pretty squishy stuff, but it’s leagues more manageable than the previous test: “I know it when I see it,” as Supreme Court Justice Potter Stewart wishes he never said in a concurrence to the 1964 Jacobellis v. Ohio obscenity case.
Taking the “community standard” language seriously was key to a case that local defense attorney David Baugh tried in Shenandoah a few years back. Baugh serves as the state public defender for capital cases, but back then he was still taking pro bono clients, like “the hoochie-coochie girls from the state fair,” he says.
The exotic dancers had been accused of blowing past seductive and “pulling their panties to the side and flashing the audience,” Baugh says. So he and another attorney, Gerald Zirkin, drove to Shenandoah to pay a visit to the local porn-stocked video store.
The next day they went to court armed with girly magazines and videos from the store to enter into evidence. They told the judge they didn’t want to further sensationalize the matter, but if necessary, the team could subpoena the rental records from the store and show just how standard the consumption of porn was in the community.
“We never got to that part of the trial,” Baugh says. “It’s safe to be a hoochie-coochie dancer now in Shenandoah.”
Those on the other side of the argument, such as conservative state Sen. Ken Cuccinelli (R-Fairfax), say the community standard test creates a bar too high.
“We have a porn shop in the middle of Centreville and it’s very near a school and a day-care center,” says Cuccinelli, who is mounting a bid to become the Republican nominee for attorney general in 2009. Community members contacted him about it, so he worked with the deputy prosecutor, trying to put together what essentially amounted to citizen focus groups. They tried to establish that a porn shop near a school was not embraced by the community standard. But the process was too cumbersome and the prosecutor eventually moved on to more pressing matters.
A more recent crackdown on images considered too revealing for public eyes came in front of the Abercrombie & Fitch store in Virginia Beach’s Lynnhaven Mall. Like many other locations in the chain, the store featured the company’s famously seminude models in two larger-than-life window displays. One picture depicted a shirtless woman covering her breasts with her hands. The other showed three young men walking away from the camera through a field, with one of them wearing his jeans low enough to expose the top of his derrière.
The view of the model’s seat didn’t sit too well with Virginia Beach police. In February an officer cited the manager of the shop under the state obscenity statute.
“Part of Abercrombie & Fitch’s marketing plan is to cozy up as close to the obscenity line as possible,” Virginia Beach Deputy Commonwealth’s Attorney Mark Stiles says. “They force police officers in the field to decide whether that line is crossed.”
The Associated Press and United Press International spread the story across the Internet and in newspapers on multiple continents, and ridicule of the Virginia Beach police set the blogosphere ablaze. People the world over said, loudly, that no line had been crossed.
Less than 48 hours after police had issued the ticket, Stiles and his fellow Virginia Beach prosecutors decided to drop the charges. Had they felt the eyes of the world upon their body of evidence?
“We don’t make decisions based on media concerns,” Stiles says. “I didn’t think they could be fairly characterized as obscene, because I didn’t think we’d be able to prove they violated community standards.”
The randomness with which the cases appear troubles the ACLU’s Willis. “The laws get applied politically and ideologically more than in any other way,” he says.
Public displays aren’t the only thing the state regulates. Virginia 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 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, 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 in 2005. That’s when Muguet Martin successfully sued her former boyfriend, Kristopher Ziherl, in Richmond Circuit Court. She claimed he had given her herpes through unprotected sex when Ziherl knew he was infected with the virus but hadn’t told her.
Ziherl’s lawyers did not dispute the herpes. Instead, they appealed on the grounds that Martin could not collect damages because she and Ziherl had participated in illegal sodomy. Judge Theodore Markow sided with Ziherl. Martin’s appeal went to the state Supreme Court, where a unanimous court ruled the statute unconstitutional, particularly in view of the recent U.S. Supreme Court case that had made a similar ruling.
Sodomy may have been knocked off the books, but adultery remains, as former Luray Town Attorney John Bushey knows all too well. In 2003 he was convicted of adultery — “any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor,” quoth state code.
Bushey was 65 at the time of his conviction and 18 years into a marriage with Cindy Bushey, the town clerk. He pursued an affair with another woman, but when the relationship went south, she called the cops. Page County Circuit Court dropped the case after he agreed to 20 hours of community service, but the press howled that prosecuting one affair in a sea of adultery was unfair.
“I think [adultery laws] ought to stay on the books,” Cuccinelli says. “Frankly it wouldn’t hurt to enforce them more.” He equates adultery to perjury inasmuch as the occasional prosecution or two would get people thinking twice.
So what does he think of an Abercrombie & Fitch manager or an adulterer swearing in under the image of stalwart Virtue?
“It’s just a little awkward,” he says, referring to the emblem’s design. “You know, in Virginia, they’re a little sensitive about changing things once they’ve been there awhile.” S
Amy Biegelsen is a staff reporter for Style Weekly; Lindsay Barnes is a reporter and editor for The Hook in Charlottesville.
