The 2023 Florida Statutes (including Special Session C)

Title XLVI
CRIMES

Chapter 847
OBSCENITY

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F.S. 847.001

847.001 Definitions.—As used in this chapter, the term:

(1) “Adult” means a person 18 years of age or older.

(2) “Adult entertainment establishment” means the following terms as defined:

(a) “Adult bookstore” means any corporation, partnership, or business of any kind which restricts or purports to restrict admission only to adults, which has as part of its stock books, magazines, other periodicals, videos, discs, or other graphic media and which offers, sells, provides, or rents for a fee any sexually oriented material.

(b) “Adult theater” means an enclosed building or an enclosed space within a building used for presenting either films, live plays, dances, or other performances that are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specific sexual activities for observation by patrons, and which restricts or purports to restrict admission only to adults, or any business that features a person who engages in specific sexual activities for observation by a patron, and which restricts or purports to restrict admission to only adults.

(c) “Special Cabaret” means any business that features persons who engage in specific sexual activities for observation by patrons, and which restricts or purports to restrict admission only to adults.

(d) “Unlicensed massage establishment” means any business or enterprise that offers, sells, or provides, or that holds itself out as offering, selling, or providing, massages that include bathing, physical massage, rubbing, kneading, anointing, stroking, manipulating, or other tactile stimulation of the human body by either male or female employees or attendants, by hand or by any electrical or mechanical device, on or off the premises. The term “unlicensed massage establishment” does not include an establishment licensed under s. 480.043 which routinely provides medical services by state-licensed health care practitioners and massage therapists licensed under s. 480.041.

(3) “Child pornography” means:

(a) Any image depicting a minor engaged in sexual conduct; or

(b) Any image that has been created, altered, adapted, or modified by electronic, mechanical, or other means, to portray an identifiable minor engaged in sexual conduct.

(4) “Computer” means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions and includes any data storage facility or communications facility directly related to or operating in conjunction with such device. The term also includes: any online service, Internet service, or local bulletin board; any electronic storage device, including a floppy disk or other magnetic storage device; or any compact disc that has read-only memory and the capacity to store audio, video, or written materials.

(5) “Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

(6) “Female genitals” includes the labia minora, labia majora, clitoris, vulva, hymen, and vagina.

(7) “Harmful to minors” means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:

(a) Predominantly appeals to a prurient, shameful, or morbid interest;

(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for minors; and

A mother’s breastfeeding of her baby is not under any circumstance “harmful to minors.”

(8) “Identifiable minor” means a person:

(a) Who was a minor at the time the image was created, altered, adapted, or modified, or whose image as a minor was used in the creating, altering, adapting, or modifying of the image; and

(b) Who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark, or other recognizable feature.

The term may not be construed to require proof of the actual identity of the identifiable minor.

(9) “Masochism” means sexual gratification achieved by a person through, or the association of sexual activity with, submission or subjection to physical pain, suffering, humiliation, torture, or death.

(10) “Minor” or “child” means any person, whose identity is known or unknown, younger than 18 years of age.

(11) “Nudity” 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. A mother’s breastfeeding of her baby does not under any circumstance constitute “nudity,” irrespective of whether or not the nipple is covered during or incidental to feeding.

(12) “Obscene” means the status of material which:

(a) The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

(b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and

A mother’s breastfeeding of her baby is not under any circumstance “obscene.”

(13) “Person” includes individuals, children, firms, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.

(14) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, transmute, publish, distribute, circulate, disseminate, present, exhibit, send, post, share, or advertise or to offer or agree to do the same.

(15) “Sadism” means sexual gratification achieved through, or the association of sexual activity with, the infliction of physical pain, suffering, humiliation, torture, or death upon another person or an animal.

(16) “Sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.

(17) “Sexual battery” means oral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female genital penetration of another by any other object; however, “sexual battery” does not include an act done for a bona fide medical purpose.

(18) “Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or female genitals of the other.

(19) “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual or simulated lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

(20) “Sexual excitement” means the condition of the human male or female genitals when in a state of sexual stimulation or arousal.

(21) “Sexually oriented material” means any book, article, magazine, publication, or written matter of any kind or any drawing, etching, painting, photograph, motion picture film, or sound recording that depicts sexual activity, actual or simulated, involving human beings or human beings and animals, that exhibits uncovered human genitals or the pubic region in a lewd or lascivious manner, or that exhibits human male genitals in a discernibly turgid state, even if completely and opaquely covered.

(22) “Simulated” means the explicit depiction of conduct described in ¹subsection (19) which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.

(23) “Specific sexual activities” includes the following sexual activities and the exhibition of the following anatomical areas:

(a) Human genitals in the state of sexual stimulation or arousal.

(b) Acts of human masturbation, sexual intercourse, sodomy, cunnilingus, fellatio, or any excretory function, or representation thereof.

(d) Less than completely and opaquely covered:

1. Human genitals or the pubic region.

2. Buttocks.

3. Female breasts below the top of the areola.

4. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

History.—s. 1, ch. 86-238; s. 4, ch. 88-283; s. 6, ch. 93-4; s. 70, ch. 96-388; s. 2, ch. 2001-54; s. 1, ch. 2001-177; s. 154, ch. 2007-5; s. 1, ch. 2008-120; s. 11, ch. 2019-152; s. 10, ch. 2022-165; s. 7, ch. 2022-212.

¹Note.—The cross-reference was revised by the editors, incident to compiling the 2022 Florida Statutes, as a result of meshing amendments by s. 10, ch. 2022-165, and s. 7, ch. 2022-212.

F.S. 847.001 on Google Scholar

F.S. 847.001 on Casetext

Amendments to 847.001

Arrestable Offenses / Crimes under Fla. Stat. 847.001

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 847.001.

Annotations, Discussions, Cases:

Cases from cite.case.law:

IN RE STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT, 257 So. 3d 370 (Fla. 2018)

. . . . § 827.071( f g ) and § 847.001(15) ,Fla. Stat. . . . . § 847.001(15) 827.071(g),Fla. Stat. . . . . § 847.001(15), Fla. Stat. . . . . § 847.001(15), Fla. Stat. . . . Give as applicable. § 847.001(6), Fla. Stat. . . .

IN RE STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT, 238 So. 3d 192 (Fla. 2018)

. . . . § 847.001(9), Fla. Stat. . . . "nudity," irrespective of whether or not the nipple is covered during or incidental to feeding.] § 847.001 . . . If necessary, insert additional definitions from § 847.001, Fla. Stat. . . .

IN RE STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT, 228 So. 3d 87 (Fla. 2017)

. . . See § 847.001, Fla. Stat. . . . See § 847.001, Fla. Stat. . . .

SMITH, v. STATE, 204 So.3d 18 (Fla. 2016)

. . . the County of Palm Beach and State of Florida, did transmit child pornography, as defined in section 847.001 . . . or reasonably should have known that he or she was transmitting child pornography, as defined in s. 847.001 . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT NO., 195 So. 3d 356 (Fla. 2016)

. . . See § 847.001, Fla. . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT NO., 176 So. 3d 938 (Fla. 2015)

. . . . § 847.001(13), Fla. Stat. . . . . § 847.001(15), Fla. Stat. . . . as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself. § 847.001 . . .

STATE v. LOSADA,, 175 So. 3d 911 (Fla. Dist. Ct. App. 2015)

. . . Under section 847.001(3), ‘“[c]hild pornography’ means any image depicting a minor engaged in sexual . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT NO., 163 So. 3d 478 (Fla. 2015)

. . . . § 827.071(d) and §—847.001(13), Fla. Stat. . . . . § 827.071(f) and § —847.001(15), Fla. Stat. . . . “An object” includes a finger. § 847.001(13), Fla. Stat. . . . over or through any medium, including the internet, by use of any electronic equipment or device. § 847.001 . . . Give as applicable. § 847.001(6), Fla. Stat. . . .

SMITH, v. STATE, 190 So. 3d 94 (Fla. Dist. Ct. App. 2015)

. . . the County of Palm Beach and State of Florida, did transmit child pornography, as defined in section 847.001 . . . or reasonably should háve known that he or she was transmitting child pornography, as defined in s. 847.001 . . .

STATE v. C. M. a, 154 So. 3d 1177 (Fla. Dist. Ct. App. 2015)

. . . distribute to another minor any photograph or video of any person which depicts nudity, as defined in s. 847.001 . . . (9), and is harmful to minors, as defined in s. 847.001(6). § 847.0141(l)(a), Fla. . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT NO., 131 So. 3d 720 (Fla. 2013)

. . . . § 847.001(18), Fla. Stat. . . .

ENDERS, v. FLORIDA,, 535 F. App'x 799 (11th Cir. 2013)

. . . asserted that numerous statutes contained in Chapter 847 of the Florida Statutes were unconstitutional: §§ 847.001 . . .

ALLEN, v. STATE, 82 So. 3d 118 (Fla. Dist. Ct. App. 2012)

. . . or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001 . . . The definition of “harmful to minors,” contained in section 847.001(6), derives from the constitutional . . .

J. AUSTIN, v. STATE, 67 So. 3d 403 (Fla. Dist. Ct. App. 2011)

. . . Section 847.0133, Florida Statutes, incorporates the definition of "obscene” found in section 847.001 . . . There the appellant asserted that section 847.001(7), Florida Statutes (1987), defining "obscene,” was . . . (Section 847.001(7) was renumbered to section 847.001(10), without substantive change, effective July . . .

KING, v. STATE, 59 So. 3d 272 (Fla. Dist. Ct. App. 2011)

STATE v. C. SHOLL,, 18 So. 3d 1158 (Fla. Dist. Ct. App. 2009)

. . . “any person under the age of 18 years” (see § 847.001(8), Fla. . . . See §§ 847.001(6), 847.0138 Fla. Stat. (2008). . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT NO., 6 So. 3d 574 (Fla. 2009)

. . . Finally, we added the statutory definitions for “deviant sexual intercourse,” section 847.001(5), Florida . . . Statutes (2008), and “sexual bestiality,” section 847.001(15), to instructions 11.17(a), 11.17(b), 11.17 . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT NO., 998 So. 2d 1138 (Fla. 2008)

. . . . § 847.001(13), Fla. . . .

KASISCHKE, v. STATE, 991 So. 2d 803 (Fla. 2008)

. . . Florida Statutes (2007), is possible through selective reference to the definitions contained in section 847.001 . . . See § 847.001, Fla. . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES NO., 969 So. 2d 245 (Fla. 2007)

. . . . § 827.071(0 and § 847.001(15), Fla. Stat. . . .

SIMMONS, v. STATE, 944 So. 2d 317 (Fla. 2006)

SIMMONS, v. STATE, 886 So. 2d 399 (Fla. Dist. Ct. App. 2004)

. . . or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001 . . . or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001 . . . Relevant definitions, provided in section 847.001, are: (1) “Adult” means a person 18 years of age or . . . See § 847.001(6)(c) (defining harmful materials to include "taken as whole, is without serious literary . . . minority of a minor member of such chat room to make any future messages subject to the sweep of § 847.001 . . . of California law as a “red herring” because of the definition of “harmful to minors” contained in § 847.001 . . . overlooks, that the California statute considered in Hayne contains almost the identical language as § 847.001 . . . our society, and it should not be restricted except in clearly defined areas not accomplished by § 847.001 . . .

BEBER, v. STATE, 853 So. 2d 576 (Fla. Dist. Ct. App. 2003)

. . . For purposes of section 847.0133(1), “obscene” is defined in section 847.001(10) as: (10) ‘Obscene’ means . . .

WILLIAMS, v. STATE, 846 So. 2d 1244 (Fla. Dist. Ct. App. 2003)

. . . was insufficient to make a prima facie showing that the evidence was obscene as defined by section 847.001 . . .

N. FOBURG, v. STATE, 807 So. 2d 774 (Fla. Dist. Ct. App. 2002)

. . . presented that tended to show that the material was obscene, as that term has been defined by section 847.001 . . .

L. KITTS, v. STATE, 766 So. 2d 1067 (Fla. Dist. Ct. App. 2000)

. . . lascivious acts); § 800.04 (“Lewd, lascivious, or indecent assault or act upon or in presence of child”); § 847.001 . . .

STATE v. MITCHELL,, 624 So. 2d 859 (Fla. Dist. Ct. App. 1993)

. . . .) § 847.001, Fla.Stat. (1991). . . .

STANDARD JURY INSTRUCTIONS- CRIMINAL CASES NO., 603 So. 2d 1175 (Fla. 1992)

. . . Note to Judge Give applicable definitions from F.S. 847.001 when F.S. 800.04(2) is charged. . . .

STALL, STATE LONG, v. STATE, 570 So. 2d 257 (Fla. 1990)

. . . Subsection 847.001(7), Florida Statutes (Supp.1986), incorporates these standards: (7) “Obscene” means . . . Subsection 847.001(11) defines sexual conduct: (11) “Sexual conduct” means actual or simulated sexual . . . .” § 847.001(7)(a), Fla.Stat. (Supp.1986) (emphasis added). . . .

HELLER, v. CITY OF OCALA,, 564 So. 2d 630 (Fla. Dist. Ct. App. 1990)

. . . Heller under sections 847.011(4) and 847.001(11), Florida Statutes (1987). . . .

SKYYWALKER RECORDS, INC. v. NAVARRO,, 739 F. Supp. 578 (S.D. Fla. 1990)

. . . Section 847.001(7), Florida Statutes, tracks the language of the controlling case of Miller v. . . . The initial provision is section 847.001(11), Florida Statutes, which defines “sexual conduct” to include . . . Section 847.001(2), Florida Statutes, defines deviate sexual intercourse as sexual conduct between unmarried . . . ANN. §§ 847.001(2), .001(8) (Supp.1990). . . . See FLA.STAT.ANN. § 847.001(7) (Supp.1990). . . .

STATE v. LONG, E. CMH d b a, 544 So. 2d 219 (Fla. Dist. Ct. App. 1989)

. . . .; § 847.001, Fla.Stat. (Supp.1986). . . . See § 847.011(11), Fla.Stat. (1985); § 847.001(7), Fla.Stat. (Supp.1986). . . . obscene material contained in the 1985 version of section 847.011(11) and the 1986 version of section 847.001 . . . event the case went to trial, the state would be required to present evidence in regard to section 847.001 . . .

P. HAGGERTY, v. STATE, 531 So. 2d 364 (Fla. Dist. Ct. App. 1988)

. . . Section 847.001(7) constitutes the codification in Florida of the definition of the term “obscene.” . . . Relying on the argument that section 847.001(7) fails to conform to the requirements of Miller and Pope . . . SMITH, C.J., and WENTWORTH, J., concur. . 847.001(7), Florida Statutes provides: (7) "Obscene” means . . .