Appeal from the Circuit Court of St. Clair County. Nos. 97-OV-3705 & 97-OV-3706 Honorable Ellen A. Dauber, Judge, presiding.
Justices: Honorable Richard P. Goldenhersh, J.
Honorable Charles W. Chapman, P.J., and
Honorable Philip J. Rarick, J.,
The opinion of the court was delivered by: Justice Goldenhersh
After a jury trial in the circuit court of St. Clair County, Family Video Movie Club, Inc., doing business as Family Video (defendant) was found guilty of two violations of the obscene literature ordinance of the plaintiff, The City of Belleville (City), after a Belleville police officer rented two adult videos from defendant. The jury assessed a fine of $1,000 on each count, and the trial court entered judgment on the verdict. On appeal, defendant contends that (1) the trial court erred in finding that the police did not seize the videotapes in issue and in denying defendant's motion to suppress the videotapes, (2) the trial court abused its discretion in refusing to admit defendant's proffered evidence of a community standard, (3) the trial court erred in refusing defendant's instruction No. 3, (4) the fine imposed against defendant was improper, (5) remarks by the City prosecutor during closing argument were improper and substantially prejudiced defendant, (6) the two videotapes in issue are not obscene, and (7) the City's obscenity ordinance is unconstitutional. We reverse and remand.
On November 11, 1997, Detective William Lautz of the Belleville Police Department opened a membership account with defendant and rented two adult videotapes from defendant's store located in Belleville. Detective Lautz took the videos, Where the Boys Aren't, No. 7, and The Ultimate Pool Party No. II, back to the station and viewed portions of both. He then returned to defendant's store and issued two citations for alleged violations of the City's obscene literature ordinance to Jeffrey Moore, the clerk who rented the videos to him. Prior to the trial, the ordinance violations were consolidated, and defendant was substituted as the defendant for Jeffrey Moore. Defendant filed a motion to suppress evidence and return the seized property on the basis that a search warrant was neither sought nor issued for the videotapes. The parties entered into a written stipulation in which it was agreed that Detective Lautz "turned said videotapes over to the Belleville Police Department and, further, that on or about November 20, 1997, he advised employees of Family Video that the said movies had been confiscated by the Belleville Police Department." The trial court denied defendant's motion to suppress, finding that the detective's actions did not constitute a seizure within the meaning of the fourth amendment.
Defendant also filed a motion to dismiss, arguing that the City's obscenity ordinance is unconstitutional. The trial court denied defendant's motion to dismiss, relying on City of Belleville v. Morgan, 60 Ill. App. 3d 434, 376 N.E.2d 704 (1978), which found the City's obscenity ordinance constitutional. The case proceeded to jury trial.
At the trial, Detective Lautz testified that he rented the two X-rated adult videos from defendant at a cost of $4. Lautz acknowledged that the store from which he rented the videos has a separate adult section in the back of the store that is partitioned off as its own room with doors. Detective Lautz explained to the jury that he "briefly observed the contents on both these tapes" at the police station and then went back to the store, where he issued two citations to the clerk who rented him the movies. The jury then viewed both films rented by Detective Lautz. The City offered no further witnesses.
Defendant's first witness was Dr. Judith Huffman Seifer, a certified sex therapist with a Ph.D. in sex research. Dr. Seifer studied with Masters and Johnson at the Reproductive Biology Research Foundation in St. Louis, Missouri, and the Institute for Advanced Study of Human Sexuality in San Francisco, California. Dr. Seifer was one of the developers and hosts of the Better Sex video series, which she claimed is America's best-selling adult sex education video series. She has been involved in numerous research studies, including, inter alia, incest, zoophilia, which is sexual behavior between humans and animals, and a study commissioned by Weight Watchers to study the impact of weight and sexual function. She participated in a study of sex and the married woman published in 1982 by Playgirl magazine, in which she studied 75 women in southern Illinois. She has also conducted sexual research in Ohio, Kentucky, West Virginia, and California.
Dr. Seifer opined, "[There are] differences in people's tolerance levels and comfort levels with sexually explicit material, but it's more dependent on their age and their educational level than it is their geographic location where they live in the United States." She testified that women are not as intrigued by adult videos as men but are "tolerant" of the videos and that "a majority of adult videos of the x-rated genre videos are now rented by women from video rental stores." Dr. Seifer viewed the videos four times in preparing for her testimony. She opined that both films have scientific value.
With regard to The Ultimate Pool Party No. II, Dr. Seifer testified that the movie has educational value for both men and women because it depicts group sex and oral sex, which are topics on which there is little information available. With respect to Where the Boys Aren't, No. 7, Dr. Seifer opined that the movie would help educate women who were curious about same-sex encounters and lesbian relationships. In her opinion, the movie also had scientific value because of the number of women in it who had breast implants. She believes that every woman considering breast implants should watch 15 minutes of this film in order to find out what the results would look like.
Dr. Seifer believes that both films could be valuable to certain couples in sex therapy or marriage counseling. Sometimes she has assigned clients involved in sex therapy the task of watching an adult video and then discussing what they have witnessed. She testified that she "would much rather have people vicariously experience something like that with the person they'd perhaps like to [sexually] experiment with" rather than be traumatized by physically participating in something they really did not want to do. Dr. Seifer opined that neither film appealed to the prurient interest in sex and that the average individual would probably become bored with the movies after approximately 15 minutes. Dr. Seifer believed that some people might be uncomfortable watching the behavior depicted in the film, but she did not think the average individual would find either movie patently offensive.
Dr. Seifer expected to be paid a minimum of $5,000 for her testimony. She has testified in other obscenity cases, but she said, "[There are] more films that I view that I refuse to testify about or testify for the defendant than there are videos that I agree to testify on." She will not testify on behalf of films that are violent, deal with sex between children and adults or even create the illusion thereof, or involve bestiality.
Roy Williams, regional manager for defendant, testified that defendant is the seventh largest national chain of video stores in the United States and the largest family-owned chain. There are 133 stores in the United States, and they are all essentially laid out in the same manner and carry the same types of videos, which are new releases, general titles, children's, sports and fitness, education, and adult. Williams testified that defendant has always carried adult videos. The adult videos are separated from the other videos and are located in an entirely different room. Defendant does not allow anyone under 18 years of age to become a member, nor does defendant allow children under the age of 18 who are signed up under their parents' account to rent any X-rated or adult video.
Williams testified that defendant's Illinois stores make anywhere from 4% to 15% of their total revenue from adult video rentals, depending on the store. With regard to the store in question, in June 1998 there were net receipts of $32,613, of which $2,856 was generated from the rental of adult videos. William testified that this equaled approximately 11% of the rental revenues. On cross-examination, the prosecuting attorney pointed out that the percentages from adult rentals appeared to be incorrect based upon the total dollar amounts described. Williams could not explain the apparent discrepancies and concluded that he would need to check with the programmers to find out exactly what the percentages represented.
Outside the presence of the jury, defendant made an offer of proof concerning a series of petitions circulated at the Belleville store, which the trial court ruled were inadmissible. During the offer of proof, Mr. Williams explained that after the Belleville store was issued citations, numerous customers commented favorably upon defendant's offering of adult videos. In response, the store drafted two petitions for customers to sign to voice ...