The Weston County Attorney’s Office will not pursue charges against members of the Campbell County Public Library after reviewing the relevant case law and the books alleged to violate the law.
Since July, the library has been under criticism from some residents about the presence and promotion of books dealing with LGBTQ issues and sexual activity.
At the end of September, Hugh and Susan Bennett asked the Campbell County Sheriff’s Office to investigate the library board and the library director for alleged criminal activity going on at the library.
The Bennetts believed the library board and library director were committing a crime by “offering for dissemination obscene material,” Sheriff Scott Matheny said.
Matheny’s office took a report and forwarded it to the Campbell County Attorney’s Office.
The county attorney’s office, which is required by law to provide legal counsel to the county and its departments, recognized the conflict of interest that would come from investigating one of its own departments. Advice from the Wyoming State Bar recommended the case be referred to another office, which is how Weston County became involved in the case.
In a letter dated Wednesday to Campbell County Sheriff Scott Matheny, Weston County Attorney Michael Stulken laid out his office’s reasoning for declining to pursue any charges.
Stulken highlighted Wyoming Statute 6-2-318, which says: “Anyone who has reached the age of majority and who solicits, procures or knowingly encourages anyone less than the age of fourteen (14) years, to engage in sexual intrusion as defined in W.S. 6-2-301 is guilty of a felony, and upon conviction shall be imprisoned for a term of not more than five (5) years.”
Stulken wrote that the important word in the statute is whether the materials encourage individuals younger than 14 to “engage” in sexual intrusion.
He went on to define “sexual intrusion” as “one individual would attempt to obtain or engage in sexual arousal, gratification, or abuse with another individual directly.”
Because the materials in question “are disseminated to the general public,” there is no engagement.
“Accordingly, my office’s position is that the State of Wyoming could not meet its burden based upon this statute,” Stulken wrote. “As a matter of fact, reviewing the statute as a whole, the State of Wyoming may not have even probable cause to institute criminal proceedings under this statute.”
Stulken outlined a second statute reviewed by his office, Wyoming Statute 6-4-302, which deals with promoting obscenity.
The statute, Stulken wrote, makes it criminal to promote obscenity if someone has obscene material with the intent of disseminating it or knowingly disseminates obscene material. To determine if the statute is applicable, he said one must first consider the definition of “obscene,” which is defined in statute by a three-part test, based on an “‘average person’s standard”:
- when applying contemporary community standards, taken as a whole, the material appeals to the prurient interest;
- when applying contemporary community standards, the material depicts or describes sexual conduct in a patently offensive way; and
- taken as a whole, the material lacks serious literary, artistic, political or scientific value.
“One would be hard pressed in a criminal prosecution to prove that the materials presented, when applying contemporary community standards and taking them as a whole, appeal to the prurient interest,” Stulken wrote.
“The books in question do not, when applying contemporary community standards, criminally describe sexual conduct in a patently offensive manner and they may have scientific value," he said. "Accordingly, since these materials are not ‘obscene’ as defined by Wyoming Law, the State of Wyoming could not commence criminal charges.”
He said, additionally, that the statute does not apply to a person who disseminated obscene material “in the course of bona fide public library activities or in the course of employment of such an organization.”
“Therefore, those who caused the materials to be present in the Campbell County Public Library cannot be subject to criminal prosecution under this statute,” Stulken wrote.
He said he had also searched for any other potential criminal statutes that might be applicable and found none.
“As a County and Prosecuting Attorney, I, as well as my office, am bound to certain ethical and constitutional considerations when exercising prosecutorial discretion,” Stulken wrote in conclusion. “One, I cannot ethically bring criminal charges if the facts surrounding a certain matter are not supported by probable cause. Two, the State must consider the end result — whether the State can prove any allegations beyond a reasonable doubt.
"Because of these considerations, and after review of the subject books and applicable law, our office has concluded that those who presented these books for public dissemination, viewing, and consumption should not be subject to criminal prosecution.”
The books that were provided for Stulken's review were:
- "Dating and Sex for the 21st Century Teen Boy," by Andrew P. Smiler, Ph.D.
- "Doing It!: Let’s Talk About Sex," by Hannah Witton
- "Sex is a Funny Word: A Book about Bodies, Feelings and You," by Cory Silverberg and Fiona Smyth
- "How Do You Make a Baby?," by Anna Fiske
He wrote that another book, “This Book is Gay,” was also identified but was not delivered for his review.
Campbell County Deputy Attorney Sean Brown said his office has no comment on the case.