Art or Obscenity? Unusual Case Draws Controversy

Feb. 1, 2008— -- For about the last eight years, Karen Fletcher has rarely left her run-down house outside Pittsburgh, she says. Described by her lawyers as timid and reclusive, Fletcher recently began posting short stories on the Internet that describe, in graphic detail, the sexual abuse and torture of young children – in order, she says, to cope with her own history of abuse.

But amid the ubiquitous pornography available on the Internet, those stories, read by about 29 paying subscribers, have made Fletcher one of the few people facing federal criminal charges for obscenity.

Once relatively common, federal obscenity cases in the last 15 years have become something of a rarity, law professors and former prosecutors say. Though child pornography prosecutions are increasing, adult obscenity laws are unevenly enforced across the country, taking a back seat to high-profile areas like terrorism cases and drug enforcement.

"A straight adult obscenity case is fairly far down in the pecking order" of priorities for prosecutors, said Teree Bowers, who was the U.S. Attorney in Los Angeles from 1992 to 1994.

Fletcher's case has generated even more attention because, unlike the vast majority of material thought to be obscene, Fletcher's stories have no accompanying photographs or images. In the 35 years since the Supreme Court's seminal case defining obscenity, it appears that not a single successful federal obscenity prosecution has been based solely on the written word.

"We haven't seen anything like that since the '60's," said Tim Wu, a Columbia University law professor who has written about obscenity law. He called Fletcher's case "astonishing."

Under the Supreme Court's 1973 decision in Miller v. California, pornography can be prosecuted as obscene if, taken as a whole, it lacks artistic, literary or scientific merit; depicts certain sexual conduct in an offensive way; and is prurient as measured by contemporary community standards. In a separate case decided that year, the court held that written descriptions alone, without pictures, can be obscene.

Fletcher's stories, prosecutors say, go so far beyond what is acceptable even in today's permissive culture that they warrant criminal charges. She faces up to 30 years in prison if convicted on all counts.

"The U.S. Attorney's office and I felt that the stories involved here are extremely graphic, depicting the torture and rape of children, and thought they were worthy of prosecution," said Assistant U.S. Attorney Stephen Kaufman, who is prosecuting the case.

Mary Beth Buchanan, the US Attorney in Pittsburgh, who has a reputation as one of the federal prosecutors to aggressively pursue obscenity cases, was unavailable for comment. Kaufman said, "[Former] Attorney General [John] Ashcroft made obscenity prosecutions a priority and [Buchanan] took it seriously."

Now 56 and living off of disability payments, Fletcher claims in an affidavit that she ran away from home at age 14 after being physically and sexually abused as a child. The stories, and the online communication among some of her 29 paid subscribers, were therapeutic and helped her cope with her own abuse, she said.

The Web site, Red Rose, which has since been taken down, was intended to be "a safe place for cathartic writing – for people to express themselves and use their own imagery … not to have pictures to potentially excite or be suggestive to readers," Fletcher said in the affidavit. Through her lawyers, she declined to be interviewed for this story.

"If she hadn't been writing these stories, she probably wouldn't be alive today," said Jerome Mooney, one of Fletcher's attorneys. Mooney and Fletcher's affidavit say she is a recluse who is afraid of other people and rarely leaves the house. She has avoided going to court for hearings.

"I don't think she's even in posture where she can imagine what it would be like" to go to prison, Mooney said. "She has difficulty leaving her own home. I can't imagine what would happen if she ended up in prison. I suspect it would be devastating. I don't think she'd survive it."

Her case began when the FBI received a complaint of suspicious activity from PayPal, according to a search warrant. Fletcher admitted to the FBI that she had about 29 subscribers, who paid $10 a month for access to the site.

In court papers, the government argued that the fact that Fletcher charged for access to the site made it illegal. Mooney said Fletcher charged subscribers to pay for the cost of running the site and to keep children from accessing it. This week, a judge refused to suppress Fletcher's statements to the FBI. She is expected to go to trial later this year.

Much pornography may meet the technical definition of obscenity. But many prosecutors, faced with the immensity of potentially obscene material on the Internet, tend to focus on child pornography and abuse, said Bowers and Joseph DeMarco, a former federal prosecutor in New York. Those cases are more likely to lead to other charges; pornography that features torture or rape is often made in the third world and may involve sexual slavery, DeMarco said.

In 2006, there were about 2,500 federal child pornography prosecutions, according to the Bureau of Justice Statistics. Though both former attorneys general John Ashcroft and Alberto Gonzales said they planned to make obscenity a priority, there have been comparatively few obscenity cases brought separately from allegations of child pornography or sexual abuse.

"The idea that you can arrest someone for looking at dirty pictures seems antiquated today," Wu said. "It's close to being a dead law."

Cases attacking words alone have not fared well in the appellate courts. State obscenity charges against the rap group 2 Live Crew for their explicit lyrics were thrown out. An Ohio man pleaded guilty to state obscenity charges in 2005 for diary entries that described fantasies of sexually abusing children but was granted a new trial after a court ruled that his lawyers were ineffective because they advised him not to pursue a first amendment defense.

Though Fletcher's lawyers argue that it should never be constitutional to prosecute text-only cases, her trial will probably focus on whether her stories have literary or scientific merit. Her lawyers cite episodes of the television show South Park and Norman Mailer's novel The Castle and the Forest, which describes sex between a teenage boy and an older man, as examples of socially acceptable explicit content.