NEWS- Lust bust: Porn case prompts statewide crackdown?

Robertson: "Wearing the jeans so low that your crack shows wouldn't get me hot and bothered."
FILE PHOTO BY JEN FARIELLO

When Staunton prosecutors levied eight felony obscenity charges against the owner of After Hours Video in November, obscenity cases were few in Virginia. Now it appears Staunton may have started a statewide trend, as police in Virginia Beach are going after a national apparel vendor for a risqué display in its window, and a state legislator made a fuss about former porn stars taking the stage in Williamsburg.

The Norfolk Virginian-Pilot reported Sunday, February 3, that Virginia Beach police confiscated two blown-up photographs from an Abercrombie & Fitch store in the Lynnhaven Mall and cited the store's manager for obscenity. One of the photographs is described as three young men with their backs to the camera, one of them sporting his dungarees just low enough to expose the top of his derriere. The other reportedly shows a shirtless woman using only her hands to cover her nipples. Police officials say the manager refused to take down the display even after being warned he might be charged. 

Already the story is getting national attention. On Monday, February 4, Internet news aggregator the Drudge Report posted a link to the Virginian-Pilot article, and the New York Daily News, United Press International, and the Associated Press published items about the citation. Perhaps Virginia Beach police felt the media heat, because by Monday, they had dropped the charges against the Abercrombie manager.

Staunton Commonwealth's Attorney Ray Robertson says that while he has no problem going after the porn purveyors in his town, the Abercrombie ads don't sound like obscenity to him. "I haven't seen the ad," he says, "but I would say that wearing the jeans so low that your crack shows wouldn't get me hot and bothered."

Obscenity charges might have been filed in Williamsburg, too, if Del. Brenda Pogge (R-York) had her way. She came out against the Sex Workers' Art Show, a touring exhibition featuring former prostitutes and adult film stars sharing their professional experiences in a cabaret-style performance, which had a planned show at the College of William & Mary Monday night. In a pre-show letter to William & Mary president Gene Nichol, Pogge wrote, "Not only has this controversy brought considerable embarrassment to our community, but in my estimation this will inflict damage to the dignity and decorum that the college enjoys."

According to the tour's website, the show "offers a wide range of perspectives on sex work, from celebration of prostitutes' rights and sex-positivity to views from the darker sides of the industry." Nichol did not agree to Pogge's request to cancel the show; however, he did ban any and all photography during the performance, including by members of the media.

But that's not enough for Pogge. She wanted Williamsburg police to stand by ready to arrest the performers if they violated the state obscenity statute, a la Jim Morrison's arrest for indecent exposure at a 1969 Doors concert in Miami. Pogge wrote to Nichols she wanted the police presence because she believes the performance "violates the standard of decency that the citizens of this area uphold and wish to maintain."

Pogge got her wish: William & Mary police officers swarmed the show Monday night. While nobody at the Commonwealth Auditorium got arrested, performers complained from the stage that they were being forced to perform a censored version of their show. Additionally, troupe leader Annie Oakley told the crowd that just before showtime, she had received a call from Attorney General Bob McDonnell. After the AG had helped to negotiate the Sex Workers' contract with William & Mary, McDonnell told Oakley that the group could not sell their merchandise on school grounds. 

Oakley displayed her displeasure by leading the crowd in the chant, "Bob McDonnell loves naked ladies."

Staunton's chief prosecutor thinks the police were justified in watching the touring act closely. "I wouldn't go after Hair, because that has artistic value," Robertson says, "but this sounds bad because prostitution is illegal, and if you've got someone saying people ought to prostitute themselves, then they ought to prosecute because that's inciting someone to commit a crime."

 Robertson is glad to see his fellow law enforcement officials keeping a close eye on potentially obscene materials. "I'm elated that they're going after this stuff," he says. "If it's patently offensive and doesn't have any literary, political, scientific, or artistic value, it's serious stuff.

"Not only," says Robertson, "is this stuff degrading to women, it leads to AIDS and STD epidemics, teenage pregnancy, and it goes hand in glove with drugs, because in both cases it's people looking for a high, and they need a worse and worse version to get the same high."

As for the first case in Virginia's recent rash of prosecutions, Staunton's After Hours bust, Robertson says he's preparing for a March 6 hearing on pretrial motions. Those proceedings will feature a few new players who've come on board since After Hours Video owner Rick Krial was in Staunton Circuit Court on November 20. Judge Thomas Wood is taking over for Judge Humes Franklin Jr. who determined that his recently retired colleague would probably have more time to devote to the cumbersome case than Franklin, who still has a full docket.

Matthew Buzzelli, an attorney with the U.S. Department of Justice's Obscenity Prosecution Task Force, will co-prosecute the case with Robertson. While Buzzelli would not speak about the specific details of the case, he did say that it's unusual for him to become involved in a case in which there are no federal charges. However,  "[Robertson's] a nice guy, and it's close by for me being in Washington, and it looked like I could be helpful," he says.

After Hours cashier Tinsley Embrey has also been indicted on six felony counts of obscenity, and his indictment has brought another high-profile attorney to case. Three months after Larry Flynt attorney Paul Cambria signed on to represent Krial, fellow Flynt counselor Louis Sirkin has agreed to defend Embrey. 

The Cincinnati-based attorney is known not only for his successful arguments on the Hustler publisher's behalf, but also for winning one of the most famous obscenity trials of the last 20 years: the 1990 Cincinnati Contemporary Arts Center case. There, director Dennis Barrie was tried and acquitted by an Ohio jury that found an exhibition featuring sadomasochistic pictures taken by famed photographer Robert Mapplethorpe did not constitute "pandering obscenity."

So what brings Sirkin to Staunton?

"Every First Amendment case is important and significant," he says. "If I'm given the chance, I'll get involved."

Sirkin says that while it's not common for a cashier to be charged in these kinds of cases, it's not the first time he's seen it. What is surprising to Sirkin is the presence of the Justice Department.

"I've been doing this 35 years," he says, "and it's the first time I've seen them get involved in a local case like this."

This won't be the first time the legal dream team of Sirkin and Cambria have tried a case together, and in Sirkin's recollection, this double team has never lost.

"If we did, it was his fault," Sirkin laughs, "but I'm sure he'd say otherwise."

Prosecutor Robertson says he's looking forward to taking on his highly touted opponents. "Let's tee it up," says Roberson. "The bigger they come, the harder they fall."

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