7.7-1 Employing a Minor in an Obscene Performance -- § 53a-196a
Revised to December 1, 2007 (modified May 10, 2012)
The defendant is charged [in count __] with employing a minor in an obscene performance. The statute defining this offenses reads in pertinent part as follows:
a person is guilty of employing a minor in an obscene performance when (he/she) <insert appropriate subsection:>
§ 53a-196a (a) (1): employs any minor, whether or not such minor receives any consideration, for the purpose of promoting any material or performance which is obscene as to minors, notwithstanding that such material or performance is intended for an adult audience.
§ 53a-196a (a) (2): permits any minor to be employed, whether or not such minor receives any consideration, in the promotion of any material or performance which is obscene as to minors, notwithstanding that such material or performance is intended for an adult audience, and (he/she) is the parent or guardian of such minor or otherwise responsible for the general supervision of such minor's welfare.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 -
Minor under 16 years of age
The first element is that at the time of the defendant's conduct the minor was under 16 years of age. This means that the child had not yet had his/her sixteenth birthday when the alleged conduct took place.1
Element 2 -
Employed in obscene performance
The second element is that the defendant (employed the minor for the purpose of promoting / permitted the minor to be employed in the promotion of ) any material or performance which is obscene as to minors.
To "employ" a minor means to use or make use of the minor. It does not mean to hire the minor for wages or a salary. In fact, the statute specifically provides that using a minor to promote material or a performance that is obscene as to minors is a crime whether or not the minor receives any consideration, that is, whether or not the minor receives anything of value in return for (his/her) services. So, in order for the defendant to be convicted of this charge, it is not necessary for the state to prove that the minor received anything of value in return for (his/her) services.
A "performance" is any play, motion picture, dance or other exhibition performed before an audience. "Material" means anything tangible which is capable of being used or adapted to arouse prurient, shameful or morbid interest, whether through the medium of reading, observation, sound or in any other manner. Undeveloped photographs, molds, printing plates, and the like, may be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it.
A performance or material is "obscene as to minors" if it depicts a prohibited sexual act and, taken as a whole, it is harmful to minors. "Harmful to minors" means that quality of any description or representation, in whatever form, of a prohibited sexual act, when (i) it predominantly appeals to the prurient, shameful or morbid interest of minors, (ii) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (iii) taken as a whole, it lacks serious literary, artistic, educational, political or scientific value for minors.
A "prohibited sexual act" means erotic fondling, nude performance, sexual excitement, sado-masochistic abuse, masturbation or sexual intercourse. "Erotic fondling" means touching a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast. "Nude performance" means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state in any play, motion picture, dance or other exhibition performed before an audience. "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal. "Sado-masochistic abuse" means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed. "Masturbation" means the real or simulated touching, rubbing or otherwise stimulating a person's own clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breast, either by manual manipulation or with an artificial instrument. "Sexual intercourse" means intercourse, real or simulated, whether genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex or between a human and an animal, or with an artificial genital.
Under this charge, as long as the performance or material meets the definition of being "obscene as to minors," it does not matter that the material or performance was intended for an adult audience.2
[<Include only if the defendant is charged under § 53a-196a (a) (2):>
Element 3 -
Parent or guardian
The third element is that the defendant is the parent or guardian of the minor or is otherwise responsible for the general supervision of the minor's welfare and permits that minor to be employed in the promotion of any material or performance which is obscene as to minors.]
In summary, the state must prove beyond a reasonable doubt that 1) <insert name of minor> was under the age of 16, [and] 2) the defendant (employed / permitted to be employed) <insert name of minor> in an obscene performance, [and 3) the defendant is the parent or guardian of <insert name of minor>.]
unanimously find that the state has proved
beyond a reasonable doubt each of the
elements of the crime of employing a minor
in an obscene performance, then you shall
find the defendant guilty. On the other
hand, if you unanimously find that the
state has failed to prove beyond a
reasonable doubt any of the elements, you
shall then find the defendant not guilty.
1 When an attempt is alleged, the trial court must instruct the jury that it must find that the defendant believed that the other person is under 16 years of age. See State v. Sorabella, 277 Conn. 155, 191, cert. denied, 549 U.S. 821, 127 S.Ct. 131, 166 L.Ed.2d 36 (2006) (defendant convicted of attempt to entice a minor when the other person was an undercover police officer, but the defendant believed he was communicating with a 13-year old).
2 The term "audience" "may consist of a single photographer of the live performance or a single person viewing photographs of the performance." State v. Ernesto P., 135 Conn. App. 215, 231 (2012).