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Art or obscenity?

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A federal judge will hear arguments August 30 about whether to dismiss obscenity charges against a Donora woman who provided fictional child rape stories to 29 paying customers on her Web site.

Karen Fletcher operated the Web site www.redrosestories.com until her home was raided by FBI agents in September 2005. In April her attorneys filed the motion to dismiss claiming that a completely fictionalized work should not be cited for obscenity. Fletcher's prosecution is akin, her attorney Lawrence Walters has claimed, to a thought crime.

"... All that exists is the pen, the hand and the mind of creator of imaginative, textual works," Walters wrote. [Previous coverage of Walters' motion can be found in the May 10 City Paper, Dirty Words.]

U.S. Attorney Mary Beth Buchanan did not comment for the May 10 CP story, however, her office filed a response to the motion June 27. Buchanan has called the stories -- all depict violence against children and one even descries the rape of an infant -- vile.

"Despite Defendant's contention, the government does not seek 'to police the thoughts and imagination of Ms. Fletcher,'" Buchanan writes. "This prosecution is based solely upon Fletcher's commercial sale, via her web site, of obscene material."

However, Walters retorts in a written reply that Buchanan's brief takes too many liberties, including the presumption that the information sold on redrosestories.com was obscene.

[I]t is not just the defendant's right to be presumed innocent; expressive materials even though implicated in a criminal obscenity prosecution are presumed non-obscene, and thus cloaked in full constitutional protections unless and until the moment the appropriate fact finder rules otherwise," Walters writes. "[The defendant] ... calls ... for a pretrial finding of fact by the Court as to whether the materials meet the threshold test for obscenity; i.e. whether or not the Government case should even be put before the jury."

In her brief Buchanan even cites her own recent victory to have the indictment against a California pornography company reinstated after it was dismissed by a district court judge, who ruled the obscenity law was unconstitutional. She says the true judge of whether the stories rise to the level of criminal obscenity should be left up to a jury.

"The government is confident that after the jury considers all of the evidence in the case it will conclude that all six charged Red Rose stories are obscene because they appeal to the prurient interest, are patently offensive, and lack serious literary, artistic, political and scientific value," Buchanan concludes.

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