State v. Reece

757 P.2d 947, 110 Wash. 2d 766

• Court: Washington Supreme Court
• Decided: June 23, 1988
• Docket: 52665-6, 53565-5
• Status: Published

Opinions

Goodloe, J.

These two cases concern the constitutionality of Washington's criminal obscenity statute, RCW 9.68.140, and the definition of "lewd matter" it incorporates from RCW 7.48A.010. In both cases defendants were charged with promoting pornography in violation of RCW 9.68.140. Defendants in State v. Reece were convicted in Pierce County, whereas defendants in State v. J-R Distributors had their charges dismissed in King County. This court then granted direct review to the defendants in Reece and to the State in J-R Distributors. We affirm the defendants' convictions in Reece. We reverse the trial court's ruling in J-R Distributors and remand for proceedings in accordance with this opinion.

Facts

State v. Reece

Defendant J-R Distributors, Inc., owned and operated a retail adult book store in Tacoma. Defendant Byron Reece was employed as a manager at the store and defendant Terry Styers was employed as a clerk. Reece was paid an annual salary and Styers was paid by the hour.

On July 16, 1985, Pierce County Deputy Sheriff John Solheim purchased a copy of a magazine entitled Chains and Whips. The next day, a superior court judge signed a search warrant authorizing the seizure of any additional copies of the magazine, as well as any other literature explicitly depicting violent or destructive sexual acts, such as rape or torture. The officers promptly executed the warrant seizing two copies of Chains and Whips and more than 200 other magazines and books. The officers arrested Styers who was working on the premises and Reece who arrived during the search. Reece, Styers, and J-R Distributors were charged with the crime of promoting pornography for the sale, exhibition or display of "lewd matter", namely, two copies of Chains and Whips. See RCW 9.68.140; 7.48A.010.

The trial court denied defendants' motions to dismiss and the case proceeded to trial. To prove that Chains and Whips constituted "lewd matter" within the meaning of the statute, the State relied solely on the magazine. The magazine contains four articles with accompanying pictures. The articles are entitled: "London's Mercenary Masochists", "Foot Fetishism", "How to be a Bastard!", and "The Practice of Bondage". Most of the pictures mainly depict naked or scantily clad women being whipped, strangled, bound in a painful position, or threatened with a knife or other deadly object. In a few of the pictures, the women appear to have welts and blood smears. The magazine contains no depictions of masturbation, excretory functions, closely exposed genitals, or ultimate sex acts.

The trial court instructed the jury that in order to convict the defendants of promoting pornography, it must find that Chains and Whips was "lewd matter", that the defendants sold, exhibited or displayed that matter for profit-making purposes, and that they did so with knowledge. The jury found all three defendants guilty as charged.

State v. J-R Distributors, Inc.

Defendants J-R Distributors, Inc., and others were charged with 38 counts of promoting pornography and 55 counts of attempting to promote pornography. See RCW 9.68.140; 9A.28.020. These charges resulted from a search and seizure of defendants' Seattle retail outlet and warehouse on October 9, 1986. As described in the prosecutor's certification for determination of probable cause, the magazines seized depict sexually exposed women, and sometimes men, bound and/or gagged in various positions. Clamps, pins, and other items are used in various parts of the body. Whips and rods are often shown, and in some cases women are pictured with welts or marks on their bodies. The texts accompanying the photographs express the view that causing pain and requiring submission will result in heightened sexual pleasure.

Prior to trial, the defendants moved to dismiss on the ground that RCW 9.68.140 violated the free speech clause, article 1, section 5 of the Washington State Constitution. The presiding judge granted the motion and dismissed all charges. The dismissal order, entered February 4, 1987, states that the charges are dismissed on "independent state grounds". The State then sought direct review.

I

Federal Obscenity Doctrine Overview

As a preliminary matter, we address defendants' contentions that RCW 9.68.140 and 7.48A.010 violate the first and fourteenth amendments to the United States Constitution. In beginning our analysis with federal law, we do not retreat from our general position that in resolving a constitutional law question we should turn first to the provisions of our own state constitution. State v. Coe, 101 Wn.2d 364, 373, 679 P.2d 353 (1984); see also State v. Gunwall, 106 Wn.2d 54, 67, 720 P.2d 808 (1986). Nevertheless, we commence here with First Amendment analysis under the belief that an overview of the United States Supreme Court's position on obscenity will provide helpful background for the state constitutional analysis which follows.

In Roth v. United States, 354 U.S. 476, 484-85, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957), the United States Supreme Court held that "obscenity" is not protected under the First Amendment. This holding was based on a historical analysis suggesting that the First Amendment was never intended to protect all expression, but only expression containing some slight social importance. Under the Roth definition, as elaborated upon, a work was considered to be obscene when:

(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.

A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General, 383 U.S. 413, 418, 16 L. Ed. 2d 1, 86 S. Ct. 975 (1966).

The Supreme Court has further modified the Roth definition in several respects. First, in Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), the Court abandoned the "utterly without redeeming social value" part of the test and held that the State must instead show that the work, "taken as a whole, lacks serious literary, artistic, political, or scientific value." The Miller Court also held that, in determining whether a work appeals to the prurient interest, the trier of fact must apply "contemporary community standards" and further, that state law must specifically define the type of sexual conduct which, if depicted or described in a patently offensive manner, will be obscene. Miller, at 24. Later, in Smith v. United States, 431 U.S. 291, 301, 52 L. Ed. 2d 324, 97 S. Ct. 1756 (1977), the Court clarified the Miller test so as to require application of "contemporary community standards" to the determinations of both prurient interest and patent offensiveness. Finally, in a decision issued earlier this year the Court held that "contemporary community standards" may not be applied to the third prong of the test; rather, the question of literary, artistic, political or scientific value must be determined solely on the basis of what a reasonable person would conclude. See Pope v. Illinois, _U.S. _, 95 L. Ed. 2d 439, 444-45, 107 S. Ct. 1918 (1987).

Although Miller required state law to specify the type of sexual acts which may be obscene, state courts are allowed to construe state statutes so as to cure any facial deficiencies. See Ward v. Illinois, 431 U.S. 767, 771, 52 L. Ed. 2d 738, 97 S. Ct. 2085 (1977). This court has twice construed a former obscenity statute, RCW 9.68.010, so as to conform to the federal obscenity test. See State v. Regan, 97 Wn.2d 47, 54, 640 P.2d 725 (1982); State v. J-R Distribs., Inc., 82 Wn.2d 584, 512 P.2d 1049 (1973), cert. denied, 418 U.S. 949 (1974). The present statute, RCW 9.68.140, may also be so construed.

RCW 9.68.140 provides that a person is guilty of promoting pornography if he or she "for profit-making purposes and with knowledge, sells, exhibits, displays, or produces any lewd matter as defined in RCW 7.48A.010". RCW 7.48A.010 provides, in pertinent part:

(2) "Lewd matter" is synonymous with "obscene matter" and means any matter:

(a) Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and

(b) Which explicitly depicts or describes patently offensive representations or descriptions of:

(i) Ultimate sexual acts, normal or perverted, actual or simulated; or

(ii) Masturbation, fellatio, cunnilingus, bestiality, excretory functions, or lewd exhibition of the genitals or genital area; or

(iii) Violent or destructive sexual acts, including but not limited to human or animal mutilation, dismemberment, rape or torture; and

(c) Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value.

Since the magazines at issue here are of the "bondage and discipline" type, depicting sexual violence, coercion, and torture, these cases are exclusively governed by subsection (2)(b)(iii).

As can be seen,JRCW 7.48A.010 generally conforms to the obscenity definition found in Miller and Smith. Defendants claim error in the fact that the statute does not refer to "contemporary community standards" in the subsection on "patent offensiveness". However, the jury instructions in Reece supplied this missing element and thereby cured any facial deficiency in the statute. See Ward, at 771; Regan, at 51, 54. Defendants also claim error in the fact that subsection (2)(c) of the statute contains language, not found in Miller, that the suspect matter be considered "in the context in which it is used". However, context considerations are permissible in obscenity cases. See Splawn v. California, 431 U.S. 595, 598-99, 52 L. Ed. 2d 606, 97 S. Ct. 1987 (1977); J-R Distribs., at 599. Defendants further argue that the statute is defective in light of Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985). Brockett held that the definition of "prurient interest" contained in RCW 7.48A.010 was overly broad to the extent it could be construed to include a normal and healthy interest in sex and not merely an interest that was morbid or shameful. However, the Court declined to strike down the statute in its entirety, reasoning that a limiting construction was possible. Brockett, at 504. Here, jury instructions given in Reece properly limited the statute.

Defendants also argue that the listing of " [vjiolent or destructive sexual acts" in RCW 7.48A.010(2)(b)(iii) is improper because it goes beyond the types of acts expressly contemplated in Miller. Miller gave "a few plain examples" of what a state could define for regulation. See Miller, at 25. However, Miller made clear these examples were not all encompassing and that the states were free to regulate, within constitutional guidelines, any form of "hard core" sexual conduct. Miller, at 27; see also Ward, at 773. Nor is there any merit to defendants' argument that sadomasochistic materials must be combined with depictions of ultimate sex acts in order to qualify as obscene. It is sufficient that the material, taken as a whole, obscenely suggests intimate sexual activity. See Mishkin v. New York, 383 U.S. 502, 505-10, 16 L. Ed. 2d 56, 86 S. Ct. 958 (1966); see also State v. Randall Book Corp., 53 Md. App. 30, 452 A.2d 187 (1982), cert. denied, 464 U.S. 919 (1983). The types of sadomasochistic materials proscribed by RCW 7.48A.010-(2)(b)(iii) are encompassed by the federal definition of obscenity. We conclude that RCW 9.68.140 and 7.48A.010 withstand scrutiny under the First and Fourteenth Amendments.

Defendants' main contention, however, is that even if these provisions can withstand scrutiny under the federal constitution, they are invalid under our state constitution. Defendants argue that Washington's free speech clause is broader than the First Amendment and must be independently construed. See Const, art. 1, § 5. In Fine Arts Guild, Inc. v. Seattle, 74 Wn.2d 503, 512, 445 P.2d 602 (1968), this court rejected this argument, reasoning that Const, art. 1, § 5 and the First Amendment were "in pari materia and inferentially interchangeable". However, in more recent years the court has in several instances given effect to textual differences between the two provisions. See, e.g., Bering v. Share, 106 Wn.2d 212, 233-34, 242-46, 721 P.2d 918 (1986), cert. dismissed, 93 L. Ed. 2d 990 (1987); State v. Coe, 101 Wn.2d 364, 375, 679 P.2d 353 (1984); Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 635 P.2d 108 (1981); Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51, 615 P.2d 440 (1980). In light of these decisions, the validity of Washington's criminal obscenity statute under Const, art. 1, § 5 is truly a matter of first impression.

II

Obscenity Under the State's Free Speech Guaranty

The United States Supreme Court has consistently held that state courts may interpret their own constitutions to be more protective of individual rights than the federal constitution. See, e.g., Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980); Oregon v. Hass, 420 U.S. 714, 719 & n.4, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975). This court has frequently accepted that responsibility. See, e.g., State v. Chrisman, 100 Wn.2d 814, 817, 676 P.2d 419 (1984) (search and seizure); State v. Fain, 94 Wn.2d 387, 392, 617 P.2d 720 (1980) (cruel punishment); Alderwood Assocs. v. Washington Envtl. Coun., supra (free speech); see generally Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491 (1984).

The State argues that the criteria enunciated by this court in State v. Gunwall, 106 Wn.2d 54, 58-59, 720 P.2d 808 (1986) forecloses the application of independent state constitutional analysis to matters of obscenity. The State reasons that Washington has never developed an independent tradition of protecting obscene speech: "obscene or indecent" literature was criminalized both immediately prior to and after the ratification of the state constitution. See Laws of 1885, p. 122-23; Laws of 1891, ch. 69, § 24. The State further argues that reliance on federal obscenity doctrine is appropriate because this court has never held that Const, art. 1, § 5 extends broader protection to obscenity than does the First Amendment. For example, Coe rejected the idea that the state constitution's absolute prohibition of prior restraints should extend to traditionally unprotected speech. See Coe, at 374-75 (citing Fine Arts Guild, Inc. v. Seattle, supra). We agree that Const, art. 1, § 5 should not be interpreted to afford greater protection to obscenity than that afforded by the federal courts under First Amendment analysis.

We hold that if a publication meets the federal test as an obscenity, it may be banned under both the state and federal constitutions. The magazine in Reece clearly is "obscene" under that test. The trial court in Reece correctly instructed the jury that to convict defendants it must find Chains and Whips was "lewd matter" and defined "lewd matter" as

synonymous with obscene matter and means any matter:

(A) Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and

(B) Which the average person, applying contemporary community standards, would find explicitly depicts or describes patently offensive representations or descriptions of:

Violent or destructive sexual acts, including but not limited to human or animal mutilation, dismemberment, rape, or torture; and

(C) Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value.

Instruction 14, Supplemental Clerk's Papers, at 16.

In Reece, the jury found the defendants guilty as charged. We are required as a reviewing court to make an independent constitutional determination of the obscenity of the publication in question here. Tacoma v. Mushkin, 12 Wn. App. 56, 59, 527 P.2d 1393 (1974) (citing Jacobellis v. Ohio, 378 U.S. 184, 12 L. Ed. 2d 793, 84 S. Ct. 1676 (1964)). After a review of the publication Chains and Whips, we conclude that the jury was correct in finding that by community standards the publication appeals to the prurient interest, is offensive by community standards, and lacks serious literary, artistic, political or scientific value.

The federal definition of obscenity spelled out in the 3-part Miller test is the constitutional threshold below which the states may not go. The Washington courts have long allowed the Legislature to struggle with the attempt to regulate obscenity so long as the Roth-Miller test was met. State v. Regan, 97 Wn.2d 47, 640 P.2d 725 (1982). This task is one traditionally left to the Legislature. Prior Washington case law has consistently indicated that obscenity may be prohibited by criminal statute. State v. Regan, supra; State v. Hull, 86 Wn.2d 527, 546 P.2d 912 (1976); State v. J-R Distribs., Inc., 82 Wn.2d 584, 512 P.2d 1049 (1973); Fine Arts Guild, Inc. v. Seattle, supra; State v. Holedger, 15 Wash. 443, 46 P. 652 (1896). In State v. Coe, supra, this court stated, "[W]e have expressly rejected an absolute bar against prior restraints on speech which is not constitutionally protected. Seattle v. Bittner, [81 Wn.2d 747, 757, 505 P.2d 126 (1973)] (obscenity); Fine Arts Guild, Inc. v. Seattle, 74 Wn.2d 503, 512-13, 445 P.2d 602 (1968) (obscenity).'' Coe, 101 Wn.2d at 375.

The Washington Supreme Court has in the past and will continue in the future to accept its duty to interpret its constitution to be more protective of individual rights than the federal constitution. "We have often independently evaluated our state constitution and have concluded that it should be applied to confer greater civil liberties than its federal counterpart when the reasoning and evidence indicate such was intended and is necessary.” (Italics ours.) Alderwood, at 238. The Gunwall case has afforded guidance on when our constitution should be interpreted to extend broader rights than the federal constitution. In State v. Gunwall, supra, we set out six nonexclusive criteria to be used in determining the scope of protection provided by state constitutional provisions: (1) the language of the state constitution; (2) significant differences in language between parallel provisions of the federal and state constitutions; (3) constitutional history; (4) preexisting state law; (5) structural differences between the federal and state constitutions, and (6) whether the subject matter is of particular state or local concern. The proper inquiry under Gunwall is not to ask whether state constitutional analysis is necessary, but to ask whether on a given subject matter the Washington constitutional provision should afford greater protection than the minimum protection afforded by the federal constitution. There is no presumption of adherence to federal constitutional analysis.

The question to be asked here is not whether the concept of free speech is interpreted more broadly under the state constitution than under the federal constitution. This court has already answered this question in the affirmative. Bering v. Share, supra; State v. Coe, supra. The question at issue here is whether obscenity is to be afforded broader protection under the state constitution than under the federal constitution.

The first two criteria of Gunwall direct the court's attention to the language of the state constitution and the parallel provision of the federal constitution. The language of article 1, section 5 is different from the language of the First Amendment. Const, art. 1, § 5 provides:

Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.

The First Amendment provides, in relevant part:

Congress shall make no law . . . abridging the freedom of speech . . .

While this will always be the beginning of state constitutional analysis, it is not the end. If it were, the other criteria enunciated in Gunwall would be superfluous. As Justice Utter has pointed out, there are differences between statutory and constitutional construction. " [A] constitution is an expression of the people's will and depends for its validity on their ratification. Thus, the 'common and ordinary meaning' in which the constitution's words must be construed is the meaning they would have had to the vast majority of ordinary voters". Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 510 (1984). It is therefore relevant to note that obscenity was criminalized both immediately prior to and after the ratification of the state constitution. See Laws of 1885, p. 122-23; Laws of 1891, ch. 69, § 24, p. 126.

The third Gunwall factor directs the court to ask whether the "[s]tate constitutional and common law history" reflect an intention to confer greater protection from the state government than has been afforded by the federal constitution. Gunwall, at 61. Historical analysis is relevant though not necessarily dispositive in a question of state constitutional interpretation. The court should be free to consider current values and conditions as one factor in interpreting the state constitution. See Utter, 7 U. Puget Sound L. Rev. at 524. However, on the question of protection for obscene material, there is no clear conflict between Washington common law history and current values and conditions. Obscenity has never enjoyed constitutional protection in Washington and the court does not perceive current conditions to warrant such protection.

Gunwall also directs the court's attention to preexisting state law which "can thus help to define the scope of a constitutional right later established." Gunwall, at 62. As noted above, obscenity was criminalized prior to the ratification of article 1, section 5 of the Washington State Constitution. Neither statutory law nor case law in Washington have ever afforded protection for obscene speech. See, e.g., State v. Regan, supra; State v. Hull, supra; State v. J-R Distribs., Inc., supra; Fine Arts Guild, Inc. v. Seattle, supra. Early legislative construction of a provision should be given great weight, especially if it extended over a long period of time. Similarly, early constructions by the courts are relevant to the intent of various constitutional provisions. Utter, 7 U. Puget Sound L. Rev. at 521.

Other state supreme courts, in construing their state constitutional free speech guaranties which are very similar to the wording of article 1, section 5, have refused to extend state constitutional protection to obscene expression that under the federal test does not enjoy constitutional protection. Portland v. Jacobsky, 496 A.2d 646 (Me. 1985); People v. Neumayer, 405 Mich. 341, 275 N.W.2d 230 (1979). Neumayer recognized that the language of article 1, section 5 of the Michigan Constitution (virtually identical to article 1, section 5 of the Washington Constitution) in certain instances may confer broader protection upon certain types of expression than the First Amendment. However, that court rejected the notion that obscenity is protected by the state constitution.

The fifth Gunwall criteria considers the difference in the structure between the federal and state constitutions, and notes that the federal constitution is a grant of enumerated powers, while the state constitution acts as a limitation on the otherwise plenary powers of state government. Gun-wall, at 62. This distinction simply reinforces the responsibility the Washington court has to engage in independent state analysis and afford broader protection when necessary. Often state and federal constitutions have conferred the same protection. Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 238, 635 P.2d 108 (1981) (citing Young v. Konz, 91 Wn.2d 532, 588 P.2d 1360 (1979); Hillside Comm'ty Church, Inc. v. Tacoma, 76 Wn.2d 63, 455 P.2d 350 (1969)). However, there is no presumption that the minimum degree of protection established by the federal constitution is the degree of protection to be afforded under the Washington Constitution.

Gunwall also advises the court to ask whether the matter is of particular state or local interest or whether there is a need for national uniformity. Gunwall, at 67. Although there is some interest in uniformity because of interstate traffic in publications, obscenity is largely a local concern. The local nature, however, does not militate in the area of obscenity for enhanced state constitutional protection for obscene material.

Prior reliance on federal precedent and federal constitutional provisions does not preclude this court from taking a more expansive view under the Washington Constitution, especially where the United States Supreme Court determines to limit federal guaranties in a manner inconsistent with our prior pronouncements. State v. Jackson, 102 Wn. 2d 432, 439, 688 P.2d 136 (1984). However, it does not follow, especially where the federal protections have not been curtailed, that we will automatically cease to follow our own precedents merely because they have tracked the federal precedents.

Gunwall recognized that " [t]he opinions of the Supreme Court, while not controlling on state courts construing their own constitutions, are nevertheless important guides on the subjects which they squarely address." Gunwall, at 61 (quoting State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982) (Handler, J., concurring)). Obviously, this court need not construe article 1, section 5 as the federal courts have construed the First Amendment. However, this court may find federal reasoning persuasive even while construing our own constitution.

The language of article 1, section 5 is significantly different from the First Amendment and often will support a broader protection for free speech in Washington. The narrow inquiry in this case is whether "obscene" speech (see State v. Regan, 97 Wn.2d 47, 640 P.2d 725 (1982)) deserves broader protection under article 1, section 5 than it is afforded by the federal case law construing the First Amendment. After consideration of the Gunwall criteria and in light of state constitutional history and preexisting state law, we conclude that in the limited area of obscene speech, article 1, section 5 does not afford broader protection.

One final constitutional argument is raised by defendants, namely, that RCW 9.68.140 and 7.48A.010 are void ab initio because they were enacted pursuant to an invalid emergency clause in contravention of the guaranteed right to referendum under Const, art. 2, § 1. This argument was recently addressed and rejected in State v. Hayes, 108 Wn.2d 344, 738 P.2d 276 (1987).

III

Other Claims of Error

Defendants in Reece raise various claims of error in addition to their constitutional claims. First, defendants argue that even if RCW 7.48A.010 and 9.68.140 are constitutional, the publication Chains and Whips does not as a matter of law constitute obscene material because it depicts merely bondage and fetishism and not the sort of " [v]iolent or destructive sexual acts" required under the statute. We disagree. The magazine depicts nude and scantily clad persons engaged in acts of flagellation, beatings and torture. There is a strong intimation of sexual behavior. Although the pictures are clearly simulated, they nonetheless represent "[v]iolent or destructive sexual acts" within the meaning of RCW 7.48A.010(2) (b) (iii).

Defendants in Reece further argue that the prurient appeal of materials such as Chains and Whips which are aimed at a deviant subgroup must be established by some evidence in addition to the materials themselves. They contend the prosecutor's failure to provide such evidence deprived them of due process and violated RCW 9A.04.100 which requires that each element of a crime be proved "by competent evidence beyond a reasonable doubt."

In State v. J-R Distribs., Inc., 82 Wn.2d 584, 597-98, 512 P.2d 1049 (1973), cert. denied, 418 U.S. 949 (1974), this court held that no evidence other than the allegedly obscene material itself is required as a matter of federal law (citing Kaplan v. California, 413 U.S. 115, 37 L. Ed. 2d 492, 93 S. Ct. 2680 (1973)). Yet, neither J-R Distribs. nor the federal cases on which it relied dealt with materials depicting bondage, fetishism and torture, as opposed to more commonplace sexual conduct. United States v. Klaw, 350 F.2d 155, 166-67 (2d Cir. 1965) held that the prurient appeal of "bondage" booklets is beyond the knowledge of ordinary jurors and must therefore be established with extrinsic evidence. However, the United States Supreme Court has since expressly reserved judgment on whether expert testimony is necessary to explain the prurient appeal of deviant oriented materials. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 n.6, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973); see also State v. Summers, 692 S.W.2d 439, 445 (Tenn. Crim. App. 1985) (concluding that expert testimony was not required to prove prurient appeal of a film depicting various forms of sadomasochistic conduct).

We find that expert testimony is not required to establish the obscene nature of materials aimed at a deviant subgroup. The obscenity test requires jury determination of an abstract standard in light of collective experience. Such a standard is not unlike criminal negligence crimes, where expert testimony is not required, in which the jury must find that the defendant's conduct grossly deviated from that of the ordinary reasonably prudent person. See RCW 9A.08.010(l)(d).

Defendants next argue that there was insufficient evidence to show that defendants Reece and Styers were operating for "profit-making purposes" as is required under RCW 9.68.140. The statute does not specially define the meaning of the phrase "profit-making purposes". Defendants argue that because Reece was a salaried employee and Styers was paid an hourly wage, they did not act for "profit-making purposes". Defendants also contend the Legislature did not intend for RCW 9.68.140 to reach mere employees. We reject defendants' arguments. The magazines at issue here were sold above the wholesale cost, and profit was made. The fact that the defendants did not personally receive a commission and had no proprietary interest in the business does not negate the fact that their actions were done for the purpose of making a profit.

This court has often recognized that a statute must be read to avoid absurd results. See, e.g., General Tel. Co. v. Utilities & Transp. Comm'n, 104 Wn.2d 460, 471, 706 P.2d 625 (1985). Defendants' construction would lead to an exemption for nonprofit corporations. Thus, entrepreneurs could set up a nonprofit corporation, pay themselves a salary, and thereby insulate their activities from prosecution under the statute. In addition, defendants' construction would exempt corporations, even J-R Distributors, which operate at a "loss" rather than a "profit". It is absurd to suggest that the Legislature intended the result reached by defendants' construction. We conclude that all those whose actions further "profit-making purposes" come within the purview of the statute. The evidence was sufficient to show that defendants Reece and Styers, as bookstore employees, were operating for "profit-making purposes".

IV

Conclusion

We conclude that RCW 9.68.140, to the extent it proscribes obscenity as defined in RCW 7.48A.010, comports with both state and federal constitutional requirements. We affirm the convictions in Reece; we reverse and remand for trial in J-R Distributors.

Dolliver, Dore, Andersen, and Durham, JJ., concur.