Seven months after her baby boy was born, Jennifer Dute went to prison.

Her crime: having sex with various partners, allowing her husband to videotape that, then selling the videos on the Internet.

The question at her trial in October was whether what she did was "obscene." Did it violate community standards?

Her case begs a broader, question. Does our system of prosecuting obscenity create obscenities of its own?

We all know that Dute's real crime wasn't anything spelled out in criminal law.

The Dutes, who live in Anderson Township, had used Hamilton County Sheriff Simon Leis' name in their Web site address, taunting him for his anti-porn stances.

Caught in a sting

That made a sheriff's office investigation almost inevitable. Deputies ran a sting operation, using "cover" addresses close to the Hamilton county border to order Dutes' videos and catch the Dutes selling in the county.

Dute and her husband, Alan, were charged with four counts of pandering - fifth-degree felonies.

For reasons no one outside the jury room is sure of, Alan Dute was acquitted, even though he'd been the cameraman. Jennifer Dute, on the other hand, was sentenced to four concurrent one-year terms for her "crime".

She was imprisoned 7 1/2 months - with real criminals - and saw her baby only twice a month, says H. Louis Sirkin, her attorney.

He sought her release on bond or house arrest, pending an appeal. But a judge treated Dute like a threat to the community, like a drug smuggler with a Swiss bank account.

Dute was released from jail Monday when an appeals court overturned her conviction.

Hamilton County Prosecutor Mike Allen says he'll take the case to the Ohio Supreme Court, even though there are only 4 1/2 months left of her prison term.

Allen says the appellate court "created new law," which would endanger future porn prosecutions. (His expected re-election bid next year would have nothing to do with that.)

An anti-porn bias

Let me stop here to explain my bias: I'm a feminist. I believe pornography exploits women and men of weakness, and sometimes children.

Much of porn is garbage. But if generating garbage is criminal, most of us would be guilty.

Unless porn involves children, animals or the mentally ill, it isn't a real crime. Even if it's disgusting.

I haven't seen the Dutes' tapes, but I bet they fell into the latter category.

I feel for the jury that had to watch six hours of the Dutes' tapes. Add to that the strain of keeping a straight face in court.

The jurors probably felt that they'd been punished - why not make someone pay?

Obscenity is an unlike most crimes. With obscenity a crime technically hasn't been committed until a judge or jury decides it has.

The Supreme Court standards require jurors to weigh three questions: Would an "average person" conclude that the porn appeals to "prurient" interests? Is it "patently offensive" to community standards? And does it lack "serious" artistic, literary, scientific or social value?

All three must yield yes answers.

But the court makes jurors instant experts on the sexual tastes of the average person and of a community.

Heck, most of us don't talk honestly about sex with our families. How would a jury know our standards?

Justice Potter Stewart once said about obscenity, "I know it when I see it."

This case looks obscene to me.

E-mail damos@enquirer.com or phone 768-8395