Pornography prosecution may be difficult

The case of Amir Frutos, the Cayo businessman arrested and charged for production, possession and distribution of illicit material is set to go before the Magistrate?s Court on September thirteenth. And the result of the trial could either prove an embarrassment for the police or a precedent setting judgment, as this could well represent the first time that anyone will be tried under Belize?s law on pornography. The particular section of the law is Chapter ninety-eight of the Substantive Laws of Belize, Revised Edition 2000, section twenty, which prohibits a person from producing, exhibiting or trading in obscene material. But as attorney Michael Peyrefitte explains, while the law on obscenity and indecency seems clear cut, the definition of pornography is subjective and may not be easily prosecuted in court.

Michael Peyrefitte, Attorney-at-Law

?Well it would seem that pornography in and of it self is not illegal if it is used purposefully for your own private likings and purposes. If you take pornography–if you have a pornographic tape and you use it in such a way that you want to distribute it or advertise it or exhibit it, then you would be in contravention of the law. However, if you were to have that same tape and use it in the privacy of your home, which is not for the purposes of trade, or publicity or business, then it would seem that doing that would not be illegal under the law.?

Patrick Jones

?What or who defines what is pornography??

Michael Peyrefitte

?Well the court defines pornography base on what is called a reasonable man?s test. So for our purposes the court would put itself in the shoes of the average Belizean. And say that if we were to bring the average Belizean into this room and show them that particular tape, what would the average Belizean say? Because it?s based on a reasonable man?s test, which means that anybody with basic common sense and intelligence, what would be their response to that? And that?s the test that would be applied by the court.?

?If you went to the States for example–I am not aware of anywhere in Belize where you can buy it–but if you went to the States and you bought that particular tape, you put it in your suitcase, you bring it to Belize, you view it in your private home, the fact that you just possess it, does not mean that you have committed an illegal act.?

Patrick Jones

?If a person gets busted for pornography, who then bears the burden of proof??

Michael Peyrefitte

?Well it?s always the prosecution. The police or the prosecution would have to prove that this person possess these tapes with an intention to trade in these tapes or to exhibit them publicly, or for the purpose of carrying on the business. They would have to prove that. The person possession the tape, naturally I would imagine would just say I possessed them for my own private use, and the police would have to prove that indeed he possessed them for a trade like business.?

San Ignacio police arrested Frutos on Monday, after a search of his business place and home allegedly turned up over a hundred pornographic DVDs. His family has told News 5 that he never had any DVDs for sale and as for reports that he used a computer to download pornography from the internet, they claim that they don?t even have an internet connection in their house or business.