In Kansas, another legal battle is being waged over a woman's body -- though this time it is made of glimmering bronze.
Community uproar over a bare-breasted sculpture in an Overland Park arboretum has triggered a grand jury investigation into whether the city is promoting obscenity to minors.
The artwork, titled "Accept or Reject" and donated by Chinese artist Yu Chang, depicts a headless woman with exposed pert breasts, snapping a self-portrait (see image below). Though the camera is angled at her missing head -- representing what the artist statement says is the incomplete identity expressed in one's digital self -- critics contend it promotes "sexting" to children.
A petition begun by local mother Joanne Hughes to remove the statue picked up steam when she paired with Phillip Cosby, the state director of the American Family Association, a religious-based nonprofit focused on strengthening the "moral foundations of American culture." Hughes and Cosby delivered 4,700 signatures to the county clerk on Tuesday -- enough names to summon a grand jury investigation.
Kansas is one of six states where citizens can initiate a grand jury investigation if they collect signatures from more than two percent of the county's voters. Johnson County now has 60 days to appoint a jury to investigate whether the city of Overland Park is promoting obscenity to minors; a misdemeanor crime.
"The arboretum is a place for school trips and minors, and it's advertised that way. Then boom, here's this sexting statue," Cosby told The Huffington Post. "Is sexting something you want to put in front of children and say this is okay? It's illegal."
But it's unclear that the statue actually represents sexting. While the woman holds a digital camera, she doesn't appear to have a way to share photos with anyone. Sexting is usually defined as sending sexually explicit photos via cellphone. There's no mode of transmission in the artwork.
A taxpayer-funded grand jury is now obligated to determine if the sculpture is "obscene" or not, a notoriously difficult task. Obscenity is not protected free speech under the First Amendment.
In Miller v. California, the United States Supreme Court established that for a work to be obscene, it must meet three conditions. It must lack serious literary, artistic, political or scientific value. It must depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable state law. In addition, the average person, applying "contemporary community standards" must find that the work "appeals to the prurient interest."
"The court recognized that San Francisco and the Mennonite community will have different standards," Cosby said. In his opinion, the artwork clearly violates the community standards of Overland Park, the second-most populous city in socially conservative, red-state Kansas. "The statue appeals to an unwholesome obsession with a sexual act. The aroused breasts, the headless nature," Cosby said. "There is no moral lesson being taught here. It is simply what it is."
But it will be up to the grand jury to determine if the average Kansas resident agrees with him.
Christopher Nowlin, author of "Judging Obscenity: A Critical History of Expert Evidence," said experts in art, sociology and psychology would likely be called to testify.
"Typically in these cases, you'll have people testify who basically pretend to know the pulse of the community ethos, who will gauge people's responses to art," Nowlin said. "Is this high art or is it pornography in disguise that somehow slipped through the radar?"
Nowlin, an artist as well as an obscenity expert, said he didn't think the statue met the conditions needed to qualify as obscene.
"I thought it was very beautiful and quite striking," he said. "To argue it has no artistic merit ... that would be very hard."
But in the eyes of Cosby, who calls sexting "the most under-prosecuted crime in America," the artwork is just plain dangerous.
This is not his first time bringing an obscenity case to the Kansas court system.
Cosby, who has been called an "anti-pornography crusader," has successfully led efforts to summon a number of grand juries to investigate businesses for selling sexually explicit material.
"He has tried dozens of times in Kansas to indict groups, and to define obscenity along conservative lines," said Jill Barton, a law professor at the University of Miami School of Law who has researched obscenity legislation in Kansas.
Regardless of whether the grand jury investigations eventually result in criminal charges, they have functioned as successful deterrents. Some businesses voluntarily stopped selling porn and sex toys after being targeted by Cosby.
"That's probably the bigger impact of what Cosby and the others groups are doing, they're having an effect on what's being displayed and sold in their communities," Barton said. "Whether those things qualify as obscenity is another question."
But so far -- despite the heat -- the city has no plans to remove the offending sculpture."The statue does exactly what art is supposed to do," said Overland Park spokesman Sean Reilly. "It's evoked a lot of emotion."