Good News, Bad News: Cincy Appellate Court Overturns Misdemeanor Convinction, But Remands Case for a New Trial; Sirkin Vows to go to Ohio Supreme Court
He was acquitted on obscenity charges two weeks ago, and an appellate court has overturned Peter Tomaino's 1998 conviction in a similar case. But, in handing down its decision, the 12th District Court also remanded the case back to the Butler County Common Pleas Court.
Tomaino's attorney, H. Louis Sirkin, said Tuesday the 12th District Court of Appeals ruling this week falls short of their expectations.
"We feel the court should have reversed and dismissed the case and discharged Mr. Tomaino," Sirkin said. "I don't think there was sufficient evidence to support the conviction. We will probably appeal the decision to the Ohio Supreme Court."
The appellate court ruling overturns the August 1998 conviction of Tomaino, owner of VIP Video in Millville, on a misdemeanor charge for selling a sexually explicit video to an underage boy.
In the written opinion, appellate judges agreed on Tomaino's motion for acquittal, but the judges said the common pleas court erred in its instructions to the jury.
The 1998 charges against Tomaino stemmed from the Oct. 14, 1998, sale of four adult videos by store clerk Billy Doan to Mark Fry Barger, then 17. Barger bought the video as part of an undercover operation directed by Sgt. Gary Blankenship of the Butler County Sheriff's Department.
Jurors deliberated six hours to find Tomaino guilty of disseminating material harmful to a juvenile, a misdemeanor - but not guilty of disseminating obscene material to a juvenile, a felony.
Butler County Common Pleas Judge H.J. Bressler sentenced Tomaino to six months in jail and fined him $1,000 plus costs. But Bressler suspended the sentence and put Tomaino on three years' probation.
Gloria Leonard and Jeffrey Douglas Appear on Geraldo Live
Free Speech Coalition president Gloria Leonard and attorney/executive director of the FSC, Jeffrey Douglas, appeared on the Geraldo Live show Tuesday night to debate video "peeping" issues. The national story from the New York Times that prompted the debate concerns a number of male college students who have been videotaped in locker rooms with hidden cameras with the tapes being sold on the Internet, primarily on the site, jockmeat.com
According to moderator David Gregory, subbing for Geraldo, a Chicago attorney has filed a lawsuit in Illinois state court seeking a permanent injunction against those who produce the tapes and the websites that show them. "About 200, outraged, exposed athletes have reportedly contacted the lawyer and said those numbers of tapes may be closer to 1000," Gregory reported. "The case brings up a number of legal questions. We all agree that the privacy of these young people has been grossly violated and many of us wonder why more restrictions on video peeping haven't been enacted. In fact, a couple of states have recently proposed stricter regulations. But the even bigger question, is, should there be a law to prevent this kind of material from making its way on to the Internet, and, once it's there, is it protected by the First Amendment?"
Leonard and Douglas' opponents in the debate/discussion were former Gary Hart lap toy, Donna Rice Hughes, who is vice president of Enough is Enough, a group dedicated to making the web safe for kids and families Rice is also author of Kids Online, a tome about protecting children in cyberspace. The fourth member of the debate team was Bob Flores, senior counsel for the National Law Center for Children and Families. Flores has prosecuted many high-profile child abuse cases.
Flores opened by saying he agrees that there should be new laws to address specific situations but noted that there are already federal laws in place that address a majority of the issues in the case, most notably, the federal obscenity statutes. "These particular movies are being pandered to the homosexual community," Flores said. "They're being sold as porn tapes; they're not being sold for any storyline, in fact there is none, I'm told. And they would clearly be prosecuted. When I was at the Justice Department, we prosecuted these types of materials successfully. These types of materials don't have to be only those types which include hardcore sexual activity. They can include this kind of material. And they're being sold and advertised in a very depraved way....it's objectionable, it's wrong, and federal law does apply to some of these tapes."
Leonard called the "wild, wild, web," the theme of the discussion, "a humongous party line - the providers more often than not do not know what the content will be of the websites, and there really is no way to regulate this. I may surprise you by coming down on the side that it is an invasion of privacy," Leonard said. "I'm foursquare for the idea of consenting adults having their naked photographs taken, however, I'm somewhat ambivalent on this issue because, even though it's anonymous and we don't see the peoples' faces, I know had I would feel."
Rice Hughes was asked who the culprit was in this scenario. "I think the folks who put up the people to actually install these cameras and who are running these kinds of websites on the Internet are clearly the ones making the money," Rice Hughes said. "They clearly know what they are doing. They are setting up a world wide web of peeping toms and are exploiting in the most gross fashion people who have not given consent and are completely unaware that they are being filmed in these kinds of situations."
Douglas said absolutely not to the question whether those who run these type of web sites should be immune from responsibility. "I absolutely agree that those people who violated the privacy of the individuals have civil liability. I don't think it's appropriate for there to be criminal liability."
"Why not?" Gregory asked. "You got people on the federal level, you can't tape somebody on the telephone without consent. Here you got guys washing up after practicing, and here you got it being videotaped and peddled on the Internet. You don't think there should be a law, criminally, that prevents that? "It's unneccessary because civil remedies are sufficient to prevent this," Douglas replied. "The question I don't believe is whether there should be criminal prosecutions of those who recorded the images because, of course, the primary difficulty is identifying those individuals. I would have substantially less problem with those that actually invaded the privacy than I would in criminally prosecuting an ISP for posting it. As for Mr. Flores' statement that it's prosecutable under the obscenity laws, that's just indefensible and absurd."
Flores begged to differ. "It may not be something that he [Douglas] doesn't want to hear, but it something that can be done; it has been done in the past. The Justice Department has a long history of winning these kinds of cases. So that's not that question. The issue here is what can be done, and right now federal prosecutors really ought to step up to the plate. They can do an investigation. This is silly. We have FBI agents, we have postal inspectors, we have people out there. They know how to do these investigations, and they can do them."
Gregory observed that those who did the actual videotaping are not around. "The people who are around are those who posted the images."
"Right now I'm not aware that an investigation is or has taken place," said Flores. "We don't know a lot of things when we are first told about a crime taking place or an objectionable act happening. What we as prosecutors or investigators do is start out with what we know. Then we go further. Clearly in this case I expect Mr. Goldstein who's the attorney for the plaintiffs in this case, I'm sure he's a solid plaintiffs' attorney and is going to conduct an investigation...I think we can find them. I'll bet you these guys are not completely quiet. I bet you they told their friends and had a hoot and a laugh. It's sick and perverted. From my experience, these people will talk." Flores said there are probably credit card and phone records that can trace the perpetrators.
Rice Hughes was asked if the tapes being shown are not Exhibit A in a case against the websites and distributors to be held criminally liable. Rice Hughes said existing pornography statutes could be applied in this case. "And then there are the issues of invasion of privacy," she added. "I can't imagine that someone could take a picture of someone through their window, taking a shower, and selling it to Hustler magazine and getting away with it. One of the problems that we have right now on the Internet is an incredible lack of prosecution of existing laws." Rice conceded that child porn is being prosecuted, "but pictures of bestiality and women being tortured and mutilated, those laws are not being prosecuted," she said. "This is a slippery slope of anything goes, and we're so we're seeing all these new ways of pornographers just exploiting technology, exploiting people and, in this case, exploiting unsuspecting athletes taking showers.
Leonard said neither her nor Douglas were on the show to "whitewash the porn industry".
"There are certain factions and certain elements that are a little less than respectable," she added. "However, the lion's share of the material is not child pornography, it is not bestiality, as a matter of fact, the Free Speech Coalition has a standing offer of a reward of $10,000 for information leading to the arrest and conviction of anybody who gets involved in child pornography. We're very concerned about that."
Gregory asked Leonard how does she defend the notion that these websites shouldn't be criminally prosecuted for peddling what is potentially illegal material being surreptitiously taped and disseminated via the websites. Leonard said she agreed with Douglas about the civil liabilities. "There is a certain diameter that every human is supposed to have of privacy around them," Leonard said. "Be that as it may, people should be held responsible for this sort of activity, however I think our criminal courts are certainly clogged up with far greater fish to fry and higher priorities. I think there are civil remedies and I say we should do whatever it takes to get them exercised, we should go for it."
Rice Hughes said she was "very happy" that the athletes brought a civil action. "I think we need precedent-setting cases to rein in what is happening out there on the Internet."
[Gene sez: "Read Flores' following comment to understand why lawyers get paid the big bucks to muddle the issues."]
Flores said it's great when people can pursue civil liability. "But not everyone can do that," he said. "Not everyone has the resources....these types of movies can be prosecuted on the state level and federally. I believe that even with the Communications Decency Act's safe harbor provisions, which is a little section in there that gives some protection to Internet Service Providers, who take action to limit some of these kinds of materials, that that prohibition against liability does not necessarily extend to all forms of civil lawsuits, and it certainly has no affect whatsoever on criminal prosecutions. That's specifically in that section."
Douglas: "What we're saying is this. The person that records the material is subject to criminal prosecution if the criminal code exists. In the state of California where I am, it is unquestionably a crime to record the material that you've shown. There is no question in my mind that a website that is profiting from that could also be prosecuted. My concern is an ISP - a portal through which millions of images are put through where they cannot control every item. They cannot be a censor that reviews every frame that can potentially be subject to criminal prosecution as they would if you grossly expand the laws, or, even more absurdly, redefine this to include.."
While We're On the Subject, Bill banning video-peeping passes California Legislature
Inspired by three Orange County cases, the state Assembly on a 64-0 vote Monday granted final passage to legislation outlawing the surreptitious taping.
The bill now goes to Gov. Gray Davis, who has not taken a position on the bill.The measure was sponsored by Assemblyman Dick Ackerman, R-Fullerton. It takes aim at a practice that has become increasingly common as advances in technology have made cameras smaller and potential audiences larger.
Police in Orange County last year caught men at Disneyland, at the beach and at Garden Grove's Strawberry Festival taping women as they stood in lines, stepped off rides or walked toward bathrooms.
None of the men was arrested because no law banned their acts.
"This is good news," said Anaheim police Sgt. Bob Conklin. "Hopefully this law will discourage this kind of thing."
The law was narrowly drafted to try to avoid criminalizing legitimate activity. It bans only taping done through another, identifiable person's clothing without their knowledge and with the intent to produce sexual gratification. It makes such an offense a misdemeanor punishable by up to a year in jail, a $1,000 fine or both.
"If this becomes law, a lot of things that should be private will stay private," Ackerman said.
Gene sez: "This is why we need attorneys like Bob Flores to tell us how it's possible to tape through a person's clothing without their knowledge, unless you've got some kind of x-ray lense."
Jim Gunn writes: "Gene: Thanks for the update on your site about the SOS13 review. I'll never know if the 'copy-editing' mistake was on the level, but I'll take it anyway. ;-) At least I feel I've been taken seriously and that's some consolation.Take care, Jim Gunn jimgunn.com , contentforsale.com
Mad Jack comments to Jim Gunn: "Hey Jim: Let me ask you a few questions. Do you like your job? Are you having fun? Making money. Do you hang with pretty girls??? THEN GET A FUCKIN' CLUE BRO!!! Why bitch about a single review. Just do your thing, sell your movies and kick back.
"As you well know, different strokes (no pun intended) for different folks. You can't please all of the people, all of the time, etc...We are the few that many envy my friend. I don't know of anyone outside of this business that are able to hang out with naked strippers on a daily basis (aside from bouncers and bartenders) and get paid pretty well to do it. Rather than bitch, I'd count my blessings. Considering you're up against 8,000 + titles a year, I'd say if you're asked to shoot another one you're doing great. If it doesn't kill you, it makes you stronger (man, am I full of clichés today or what!)."
Gene sez: "A stitch in time definitely saved nine on that one."
Brandy Alexandre comments: "I saw that Jim Gunn got what he wanted out of his Luke Ford rant. Unfortunately, when he spoke to you, he made it sound as if Ford took advantage of him at a weak moment to get him to say something 'on the record.' I was in the chat room where this all took place and Jim practically begged Ford to let him call and get something up on his site that was anti-AVN as quickly as possible.
When I confronted Jim with this in tonight, his response was, '(JimGunn) Brandy, I aired my grievance and got results.' I guess that's all that counts..."
Randy Kaplan writes: "What a bunch of foolish whiners at Sable Entertainment! Listen pals, your "backup art" could have been a photo of the Declaration of Independence, or a photo of George W. Bush, and as long as the damn title has the word "Porn" in it, you ain't gettin' a billboard. And no matter how much you whine, your bosses should hold you responsible for wasting their money."
Mike South mike-south.com writes: "HyGene, word I hear from his female companion Tawni Lyons is that Kid Vegas didn't take the train back, she threw his ass outta her life and he took a Greyhound. Course in Vegas' imagination he makes good porn so maybe a greyhound could be a train. Jeez, now if only one would run over him...."
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Producer/director Jim Gunn is the latest of the porn clan who has taken his case to the Internet Court of Last Resort. Gunn aired out his gripes concerning a AA review of Strap on Sally 13, starring Marylin Star, to Luke Ford and had this to say in a follow-up interview with Judge Gene.
What might make Gunn's comments particularly moot was an investigation discovering an error in copy editing which will be corrected in the October issue. Strap on Sally 13 gets a AAA rating. Nonetheless, this is what Gunn had to say in the passion of the moment.
Gunn: "I was venting, and he [Luke Ford] seized on the moment. From reading AVN for years and years, to me a two-star review means it's kind of weak; three is kind of average, three-and-a-half is good; four is great. That's how I see it falling. I thought that movie was one of the better movies I've done. It certainly was no worse than many of the other Strap-on-Sallys that I've done which got three, three-and-a-half. The various elements that went into it from the attractiveness of the girls, the heat of the scenes, the locations, how it was shot, the editing - I actually thought I improved this year since I moved down here [Florida] with the crews I use and the new talent. I can't imagine that it was that bad. Even if you're indifferent to all-girl movies and thought it was mediocre, two-stars is a real put-down. If you go through this month's AVN, there is some really low-budget, pretty bad movies, but those got two-and-a-half and threes. I thought it was really unfair. I don't know what was so bad about it or what you were comparing it against. I thought it was a flippant, low review, and I don't know why. I thought it was actually [the feature] pretty good."
Judge Gene renders a verdict: "It was by no means a flippant review, and Gunn is hereby sentenced to spend time in Ft. Lauderdale doing community service with indigent strippers."
Sable Entertainment Gets the Billboard Heave-Ho
They say everything happens in threes. Ron Jeremy just had a billboard campaign featuring him, ixnayed. Now gay company Sable Entertainment finds themselves in a similar position. Sable was set to go with a November campaign touting one of its features, Late Night Porn starring Grant Wood and Logan Reed, when they got the word from the billboard company, that the billboard wouldn't be going up the corner of Santa Monica Blvd. and Las Palmas.
Donald VonWiedenman of Sable had this to say: "We went to a company that represents two billboard companies. That company is called Outdoor Services. They represent Outdoor Systems as well as a company called Eller. The billboard that we reserved is the east-facing billboard above the Santa Palm carwash. That is owned by Outdoor Systems.
"We submitted some art which we knew was a little risque. We had back-up art which was not risque. The art we finally thought they would have no problem with was basically no more lascivious or suggestive than a billboard behind that which is a dating service billboard that shows two guys in a towel with their arms around each other.
"Our billboard shows two guys naked from the waist up. It says 'Late Night Porn - Now Available at Video Stores Everywhere.' It was supposed to go up Nov. 9. When they [Outdoor Systems] saw the artwork, they balked at it. When I talked to Outdoor Services, they said it was not their policy, it was Outdoor Systems' policy. We talked to them through an attorney and their policy is no pornography. Meanwhile, we're not sure if they're the company that advertised Idol in the Sky and the Ken Ryker video, Ryker's Revenge. We're not sure if it's them or Eller. Either way, it's not a good thing. If they advertise those and won't advertise us, it's discrimination directly at us because there's two guys featured in the ad. If they are not the company that advertised the other two videos, then they have a policy that is against community standards in this area. We're not talking about advertising this in Beverly Hills. We're talking about the strip on Santa Monica between San Vincente and La Cienega, which I can't imagine why they'd object to this.
"This is a progressive pro-gay city, and it's refusing to allow this kind of ad to run? I think they're making a big mistake. I can't imagine why they're doing this. If you saw the artwork, you wouldn't understand what they're objecting to.
"I don't think they're allowed to discriminate within a certain genre. We were prepared to spend a lot of marketing dollars in getting this billboard up in a specific place. We had a sign-space contract with the company. There was never a suggestion that the content had to be approved by anybody. When we sent the initial artwork which shows one of the men sort of draped on top of the other man in a horizontal position, we thought there might be a problem with that artwork, so we sent separate artwork which has the two guys standing side-by-side, and only naked from the waist up."
VonWiedenman concedes that there might be a problem with the use of the word "porn' in the ad. "I think they wouldn't have understood the ad if it just said Late Night Talk Show," VonWiedenman said. "If they're saying Ryker's Revenge doesn't have the word porn in it, but, at the same time, it is pornography, and probably one of the biggest pornography movies of the year, I don't see how they can get away with not letting us advertise."
Gloria Leonard writes: "Last night, I attended the premiere of "The Muse" at the Academy of Motion Picture Arts and Sciences, which was to say the least, a star-studded event. Stepped on Matthew Perry's toes, exchanged smiles and/or glances with Martin Landau, Roseanne Arquette, Lorenzo Lamas, Michael Douglas and Catherine Zeta-Jones, Gina Gershon, Bud Freeman (Improv), Michael Chiklis (The Commish) and others too numerous to mention.
"The producer is a childhood friend of mine, who is more like family, which happens when you know someone for over 40 years. The film is laugh-out-loud funny and Sharon Stone (also in attendance) is a terrific comedic actress! The event benefitted one of the many charities she is involved with - this one, Planet Hope, which helps homeless and displaced kids and families. The after-party was held at Spago in Beverly Hills in a specially constructed tent although we had the run of the entire restaurant. Spago and Wolfgang Puck are significant plot points so it was the natural place to hold the party. I had dinner at the producer's table and spent most of the evening schmoozing and sneaking smokes outside with Gary Busey, another old friend.
"And yes, we did discuss his participation in Promise Keepers! Sharon auctioned off a brand new Mercedes Benz for $50,000 along with some other pricey stuff, all to benefit Planet Hope. Gift bags of goodies were given to all attendees which included the CD soundtrack, penned by Elton John (his first for a motion picture), cosmetics from Devita and best of all, a small blue bag from Tiffany & Co., another pivotal plot point in the film. All in all, one of the most fabulous parties I have ever attended. Hooray for Hollywood!!"
Leonard said it was her first-ever Hollywood premier. "It was very exciting," she said.
Gloria Leonard and Jeffrey Douglas on Geraldo
Free Speech Coalition's Gloria Leonard and attorney Jeffrey Douglas will be on the Geraldo Rivera CNBC show Tuesday evening to debate Donna Rice and Bruce Taylor on Internet porn. Leonard and Douglas will be doing a remote from NBC's Burbank Studio.
In our never-ending search for truth, justice and a comment from Montana Gunn about the David Aaron Clark/automobile transaction, it seems that Gunn surfaced long enough to call Nightmoves in Florida and confirmed that she would be at their awards show Sept. 20. Other than that, all we know for certain is that Gunn is apparently on the road with Sindee Coxx.
History Channel Feature Series on History of Sex
To appreciate how thinly-written such tomes as Luke Ford's A History of Sex truly are, one only had to gravitate to the History Channel Monday night to catch the first installment of their new series on The History of Sex, narrated by Peter Coyote. Even Ford might have saved himself some valuable research time in the long run, because this insightful and comprehensive five-part series seems to have it all, including portraits of many key sexual/historical figures that Ford eliminates entirely of mention in his book - particularly, Margaret Sanger and Anthony Comstock; Sanger being THE advocate of women's sexual freedom at the turn of the century, Comstock, the ultimate anti-porn crusader.
"From the moment that stuffy Victorian morals were tossed aside at the turn of the century, America has been on a roller coaster ride of repression, and sin; of restraint and excess. Sexuality continues to evolve at a dizzying pace, thanks in large part to 20th century innovations such as the motion picture, the autombile, the pill and the Internet," says Coyote in setting up the series premise.
Accordingly, interviews with such figures as Hugh Hefner, Prof. Estelle Freedman, co-author of Intimate Matters - A History of Sexuality in America; James R. Peterson, author of The Century of Sex; Prof. George Chauncey, University of Chicago; Helen Gurley Brown and Dr. Dommena C. Renshaw of Loyola University, Chicago are offered in Part One.
"Sex is out in the open. The Pandora's Box is open - you can't put the genii back in the bottle," Hefner said.
Believe it or not, one of the more innocuous inventions plaguing the American consciousness about the morality of woman was the bicycle. "It was said that this [the bicycle] would destroy marriages because once women got that 'feel' they wouldn't want their husbands anymore," Dr. Renshaw said.
Two other inventions contributed to the sexual awakening as well - the motion picture, being one, along with the automobile, once nicknamed "the struggle buggy".
"For many Americans, the movies functioned as sex education; motion pictures brought sex and romance into the open." Coyote said. An unexpurgated clip from a 1915 stag film called "A Free Ride" was shown to illustrate the point.
One of the earliest anti-porn activists, according to the series, was Anthony Comstock, leader of the New York Society for the Suppression of Vice. Comstock had been a one-man inquisition since the early 1870's. Comstock's claim to fame was that he persuaded Congress to pass the Comstock Act, making it illegal to send or receive obscene materials through the US mails - in effect, anything which had to do about sex. Resultantly, Comstock and his crew were responsible for arresting over 3600 people and destroying over 800,000 obscene pictures, not to mention 8,000 articles for the immoral use of rubber.
According to the first installment, by the time of World War I, "VD was more dangerous than a Kaiser's bullet." Despite a rigorous campaign by the US government against sex, seven million man-days were lost in that War due to social diseases with more soldiers being hospitalized from VD than war wounds. The upshot of it all was that G.I.'s discovered a new found carnal knowledge from European women.
The Great Depression, on the other hand, did more to kill the national sex drive than the combined efforts of all anti-porn activists combined. Along with prohibition, Hollywood wouldn't show scenes of cows being milked, toilets in bathrooms, and striptease quotas, if you can believe, were handed down by president Franklin D. Roosevelt.
One amusing anecdote rendered in passing - sex manuals of the day suggested that horny men should submerge their testacles in a bowl of ice water.
