Duhaime's Law Dictionary


Obscenity Definition:

Material that is morally corruptive.

Related Terms: Fuck, Corrupting Morals, Necrophilia

An elusive concept used in the context of criminal law to describe material or a publication which is illegal because it is morally corruptive, and therefore closely related to the term corrupting morals and the evolving standards of society as to what is morally wrong and what is not..

The common law has struggled with this word as society has evolved towards greater tolerance of alternative sexual behavior and the acceptance of more sexually demonstrative material.

Historically, obscenity included any lewd material which had no apparent social value, which was offensive to contemporary community standards of decency, and even material which tended to invoke impure sexual thoughts.

As an example of a modern definition, Canada has defined obscene material as any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and crime, horror, cruelty or violence.

In Canadian criminal law, obscene is defined at §159(8) of the Criminal Code:

"For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene."

In a 1987 case from British Columbia, Aldrich v. One Stop Video Ltd., Justice Davies suggested, relying on several English dictionaries, and correctly, that what is captured by the term obscenity is a moving target:

"Obscenity comes from the Latin phrase ob caenum meaning about filth... It denotes the quality of the material identified as being offensive to modesty or decency....

"By definition, then, it is a reflection of moral values; but these values are subject to great change."

In R v Close, Justice Fullagar wrote:

"There does exist in any community at all times—however the standard may vary from time to time—a general instinctive sense of what is decent and what is indecent, of what is clean and what is dirty, and when the distinction has to be drawn, I do not know that today there is any better tribunal than a jury to draw it.... I am very far from attempting to lay down a model direction, but a judge might perhaps, in the case of a novel, say something like this: It would not be true to say that any publication dealing with sexual relations is obscene. The relations of the sexes are, of course, legitimate matters for discussion everywhere. … There are certain standards of decency which prevail in the community, and you are really called upon to try this case because you are regarded as representing, and capable of justly applying, those standards. What is obscene is something which offends against those standards."

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