{ "id": 5306175, "name": "The People of the State of Illinois, Plaintiff-Appellant, v. Nicole Taylor, Defendant-Appellee", "name_abbreviation": "People v. Taylor", "decision_date": "1976-01-14", "docket_number": "No. 61664", "first_page": "418", "last_page": "423", "citations": [ { "type": "official", "cite": "35 Ill. App. 3d 418" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "413 U.S. 49", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338826 ], "weight": 2, "pin_cites": [ { "page": "57-58" }, { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/us/413/0049-01" ] }, { "cite": "268 N.E.2d 192", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "131 Ill.App.2d 551", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2908239 ], "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/0551-01" ] }, { "cite": "304 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "629" } ], "opinion_index": 0 }, { "cite": "55 Ill.2d 565", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2940450 ], "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0565-01" ] }, { "cite": "312 N.E.2d 263", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "57 Ill.2d 285", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5407650 ], "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0285-01" ] }, { "cite": "312 N.E.2d 596", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "599" } ], "opinion_index": 0 }, { "cite": "57 Ill.2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5408379 ], "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0353-01" ] }, { "cite": "287 N.E.2d 220", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "224-25" } ], "opinion_index": 0 }, { "cite": "7 Ill.App.3d 191", "category": "reporters:state", "reporter": "Ill. 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Ed. 2d", "opinion_index": 0 }, { "cite": "413 U.S. 912", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "282 N.E.2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "695" }, { "page": "695" } ], "opinion_index": 0 }, { "cite": "51 Ill.2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392659 ], "weight": 2, "pin_cites": [ { "page": "417" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0410-01" ] }, { "cite": "422 U.S. 205", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9566 ], "weight": 3, "pin_cites": [ { "page": "213" }, { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/us/422/0205-01" ] }, { "cite": "418 U.S. 153", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172107 ], "weight": 3, "pin_cites": [ { "page": "161" }, { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/us/418/0153-01" ] }, { "cite": "413 U.S. 115", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339152 ], "weight": 3, "pin_cites": [ { "page": "119" }, { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/us/413/0115-01" ] }, { "cite": "331 N.E.2d 869", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "872" } ], "opinion_index": 0 }, { "cite": "30 Ill.App.3d 399", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2620762 ], "weight": 2, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0399-01" ] }, { "cite": "324 N.E.2d 412", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill.2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414942 ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0159-01" ] } ], "analysis": { "cardinality": 667, "char_count": 12247, "ocr_confidence": 0.724, "pagerank": { "raw": 1.5992844487294837e-07, "percentile": 0.6835788495777166 }, "sha256": "8360f559a77422bf105cef38f831ebad4e96e278ca4ecc79aac1aa573cd07134", "simhash": "1:38600f851246c8fd", "word_count": 2044 }, "last_updated": "2023-07-14T15:45:45.042916+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellant, v. Nicole Taylor, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE BURMAN\ndelivered the opinion of the court:\nThe defendant, Nicole Taylor, was charged by complaint with performing an obscene act for gain in violation of section 11 \u2014 20(a) (4) of the Criminal Code. (Ill. Rev. Stat. 1973, ch. 38, par. 11 \u2014 20(a) (4).) The defendant\u2019s pretrial motion to dismiss the charge for failure to state an offense was sustained by the trial court. On appeal, the State Contends that the fondling for gain of another adult\u2019s genital organs does violate the above mentioned obscenity provision of the Criminal Code.\nA review of the record reveals that on August 7, 1974, a complaint was filed against the defendant in the municipal division of the circuit court. This complaint alleged that the defendant committed the offense of obscenity in violation of section 11 \u2014 20(a) (4) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 11 \u2014 20(a)(4) in that she, while naked and with knowledge of her subsequent conduct, fondled the penis of a Chicago policeman for ten dollars on the premises of a place of business known as \u201cJust Filmz.\u201d It was also asserted that prior to the defendant\u2019s obscene act, which was undertaken solely in the presence of the complainant, she unbuckled and pulled down his trousers.\nOn October 31, 1974, the trial of this cause commenced but was continued for argument with respect to the law. The trial reconvened on December 13, 1974, at which time an amended complaint was filed. The defendant moved to dismiss this complaint on the basis that \u201cthe act performed in the sole presence of two people without force is not a crime of obscenity under the law.\u201d The State refuted such contention by arguing that in light of community standards, the defendant\u2019s act was obscene and, since it was perfonmed for gain, she violated section 11 \u2014 20 (a)(4) of the Criminal Code. (Ill. Rev. Stat. 1973, ch. 38, par. 11 \u2014 20 (a)(4).) After reviewing the pertinent existing ordinances and statutes in the city of Chicago and the State of Illinois concerning the prohibition of sexual acts, as well as subsequently commenting that resolution of the instant case was not for the police court but for an \u201cappellate level tribunal,\u201d the trial court sustained the motion to dismiss on the basis that the defendant\u2019s act did not violate any legislative enactment.\nSection 11 \u2014 20(a)(4) of the Criminal Code provides that:\n\u201cA person commits obscenity when, with knowledge of the nature or content thereof, or recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof, he:\n(4) Performs an obscene act or otherwise presents an obscene exhibition of his body for gain\u201d (Ill. Rev. Stat. 1973, ch. 38, par. 11 \u2014 20(2)(4).) (Emphasis added.)\nInasmuch as the essential element of \u201cfor gain\u201d was alleged in the complaint against the defendant and was not contraverted by either party, disposition of this cause of action evolves around whether the fondling of an adult male\u2019s penis by a naked adult female in a private room of a place of business with no one else present constitutes an \u201cobscene act\u201d within the ambits of section 11 \u2014 20(a) (4) of the Criminal Code.\nAccording to section 11 \u2014 20(b) of the Criminal Code, the defendant\u2019s conduct can be considered obscene if (1) considered as a whole, its predominant appeal is to prurient interest, equated to a shameful or morbid interest in nudity, sex, or excretion and (2) if it goes substantially beyond customary limits of candor in description or representation of such matters. (Ill. Rev. Stat. 1973, ch. 38, par. 11 \u2014 20(b).) Although the legislature promulgated this bifurcated test for delineating whether certain subject matter is obscene, the defendant posits that in light of another subsection of this obscenity statute (Ill. Rev. Stat. 1973, ch. 38, par. 11 \u2014 20(c)), the trial court\u2019s ruling should be affirmed because the conduct in controversy does not fall within the prohibition of the obscenity statute without the allegation that the act was intended for an audience. Despite such contention, we believe that the trial court erred in ruling that the act performed by the defendant in a place of business was not, as a matter of law, an \u201cobsence act for gain\u201d within the purview of this obscenity statute.\nWhile we initially agree with the defendant that in the majority of adjudications construing section 11 \u2014 20 of the Criminal Code, the subject of the obscenity prosecution was either a book, magazine or motion picture (e.g., People v. Gould, 60 Ill.2d 159, 324 N.E.2d 412 (magazines); People v. Mabie, 30 Ill.App.3d 399, 331 N.E.2d 869 (book and motion picture)), it must be remembered that not only can obscenity manifest itself in the pictorial representations or written descriptions of conduct, but the conduct itself also may be held to be obscene. (Kaplan v. California, 413 U.S. 115, 119, 37 L.Ed.2d 492, 497, 93 S.Ct. 2680.) Moreover, even though nudity alone is not enough to make certain conduct or material legally obscene (Jenkins v. Georgia, 418 U.S. 153, 161, 41 L.Ed.2d 642, 650, 94 S.Ct. 2750; see Erznoznik v. City of Jacksonville, 422 U.S. 205, 213, 45 L.Ed.2d 125, 133, 95 S.Ct. 2268), both the Illinois Supreme Court and appellate courts have consistently held that pictorial or written portrayals of nudity are obscene if there are accompanying indications of imminent and impending explicit sexual activity. See, e.g., People v. Ridens, 51 Ill.2d 410, 417, 282 N.E.2d 691, 695, vacated and remanded, 413 U.S. 912, 37 L.Ed.2d 1030, 93 S.Ct. 3046, aff\u2019d, 59 Ill.2d 362, 321 N.E.2d 264; City of Chicago v. Geraci, 46 Ill.2d 576, 580-81, 264 N.E.2d 153, 155-56; People v. Melander, 10 Ill.App.3d 879, 881, 295 N.E.2d 20, 22; People v. Penney, 7 Ill.App.3d 191, 196-98, 287 N.E.2d 220, 224-25.\nApplying the above judicial precepts to the case at bar, we believe that the defendant\u2019s conduct, when considered as a whole, did appeal to a prurient interest in nudity and sex and did go substantiaHy beyond the customary Hmits of candor in the representation of such matters. The instant case did not involve mere nudity; rather, the defendant\u2019s conduct entaHed the explicit sexual activity of pulling down the complainant\u2019s trousers and fondhng his penis whHe she was naked. We agree with the State that if pictorial or written accounts of simulated or imminent masturbatory acts have been held to be obscene (e.g., People v. Ridens, 51 Ill.2d 410, 417, 282 N.E.2d 691, 695; People v. Melander), then it logically follows that the actual manipulation of another\u2019s genitals constitutes an \"obscene act\u201d within the purview of the obscenity statute.\nWe further believe the defendant\u2019s assertion that the conduct at bar cannot be found to be an \u201cobscene act\u201d without the presence of an audience is unwarranted. WMle the defendant particularly relies on the usage, in four separate instances, of the word \u201caudience\u201d in section 11 \u2014 20(c) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 11\u2014 20(c)), which is entitled \u201cInterpretation of Evidence,\u201d in support of his contention, it is important to note that when a statute, be it criminal or civil, is judiciaUy construed, the primary emphasis of such construction is to give effect to the intent of the legislature. (E.g., People v. Scott, 57 Ill.2d 353, 358, 312 N.E.2d 596, 599; People v. Wallace, 57 Ill.2d 285, 289, 312 N.E.2d 263, 266.) In ascertaining this legislative intent, consideration must not only focus on the language used in the statute but the ev\u00fc to be remedied as weH as the objective to be attained. E.g., People v. Dednam, 55 Ill.2d 565, 568, 304 N.E.2d 627, 629; People v. Spencer, 131 Ill.App.2d 551, 553, 268 N.E.2d 192, 193.\nIn light of such judicial tenets, it is evident that resolution of the matter in controversy is not dependent upon whether the defendant\u2019s conduct was intended for an audience. As previously mentioned, the integral elements of section 11 \u2014 20(a) (4) of the Criminal Code are that an individual (1) performs an obscene act and (2) such conduct is for gain. (Ill. Rev. Stat. 1973, ch. 38, par. 11 \u2014 20(a)(4).) There is not any language contained in this statutory directive requiring that such conduct be intended for an audience. Moreover, the fact that the defendant\u2019s conduct took place in the privacy of a business establishment unequivocally verifies that the legislature intended to proscribe the defendant\u2019s conduct without the necessity of an audience since the' evil to be remedied as well as the objective of this obscenity statute is to control the commercial dissemination of obscenity (Ill. Ann. Stat. ch. 38, \u00a711 \u2014 20, Committee Comments, at 488 (1972)), and it has been held that a State does have an interest in regulating commercial obscenity regardless of the manner in which it is displayed. (People v. Mabie, 30 Ill.App.3d 399, 402, 331 N.E.2d 869, 872; see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57-58, 37 L.Ed.2d 446, 457, 93 S.Ct. \u2022 2628.) Finally, the defendant\u2019s reference to the fourfold mention of the word \u201caudience\u201d in section 11 \u2014 20(c) of the Criminal Code as evincing the intent of the legislature to control the dissemination of obscene material to \u201caudiences,\u201d which she defines in her brief as \u201cboth a live audience in a theatre or cabaret and a single person audience reading a book or magazine,\u201d is also without merit. Section 11 \u2014 20(c) of the Criminal Code provides:\n\u201cObscenity shall be judged with reference to ordinary adults, except that it shall be judged with reference to children or other specially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience.\nWhere circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that material is being commercially exploited for the sake of its prurient appeal, such evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter is utterly without redeeming social importance.\nIn any prosecution for an offense under this Section evidence shall be admissible to show:\n(1) The character of the audience for which the material was '\ndesigned or to which it was directed;\n(2) What the predominant appeal of the material would be for ordinary adults or a special audience, and what effect if any, it would probably have on the behavior of such people;\n(3) The artistic, literary, scientific, educational or other merits of the material, or absence thereof;\n(4) The degree, if any, of public acceptance of the material in this State;\n(5) Appeal to prurient interest, or absence thereof, in advertising or other promotion of the material;\n(6) Purpose of the author, creator, publisher or disseminator.\u201d (Ill. Rev. Stat. 1973, ch. 38, par. 11 \u2014 20(c).) (Emphasis added.)\nThe Committee Comments concerning this section clearly indicate that the purpose of this legislative provision is not to require that certain subject matter be intended for an audience before an individual may be deemed to have committed the offense of obscenity; rather, the provisions contained in this section \u201care only listed to serve as a guide and to deter a trial court from holding any one of the types [of evidence fisted herein] to be inadmissible in a proper case\u201d. (Ill. Ann. Stat. ch. 38, \u00a7 11 \u2014 20, Committee Comments, at 488 (1972).) (Emphasis added.) Therefore, we conclude that the defendant\u2019s fondling of the complainant\u2019s genitals did constitute an \u201cobscene act\u201d and since it was performed for gain, such conduct did come within the purview of section 11 \u2014 20(a) (4) of the Criminal Code. Ill. Rev. Stat. 1973, ch. 38, par. 11 \u2014 20(a)(4).\nFor the reasons given, the dismissal of the complaint is reversed and the cause is remanded to the circuit court for further proceedings.\nReversed.\nADESKO and DIERINGER, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE BURMAN" } ], "attorneys": [ "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Eugene J. Rudnik, Jr., Assistant State\u2019s Attorneys, of counsel), for the People.", "Patrick A. Tuite, of Chicago, for appellee." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellant, v. Nicole Taylor, Defendant-Appellee.\nFirst District (4th Division)\nNo. 61664\nOpinion filed January 14, 1976.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Eugene J. Rudnik, Jr., Assistant State\u2019s Attorneys, of counsel), for the People.\nPatrick A. Tuite, of Chicago, for appellee." }, "file_name": "0418-01", "first_page_order": 444, "last_page_order": 449 }