North Dakota obscene-performance charge guide
Producing, Directing, or Promoting an Obscene Sexual Performance by a Minor
N.D.C.C. § 12.1-27.2-03 is a class A felony with three principal act theories—producing, directing, or promoting—and “promote” itself contains twenty defined verbs. The State must prove that the accused acted while knowing the character and content of the performance, committed a charged act, and that the performance was obscene and included statutory sexual conduct by a person who was a minor at the time. Those requirements cannot be replaced by proof that a file was merely found later. In State v. Noble, 2023 ND 119, the North Dakota Supreme Court reversed four convictions because the State proved later possession, but not producing, directing, or promoting during the period charged and submitted to the jury. A defense therefore requires exact attention to the act, timestamp, age, definition, obscenity test, knowledge evidence, device or account attribution, offense-date version of the law, and any affirmative defense.
You will work directly with me.
If you hire me, I map every count to the exact act, performance, person or qualifying depiction, charged date, and device or account. I examine the original files and metadata, extraction and platform records, age evidence, obscenity proof, knowledge evidence, affirmative defenses, search warrants, statements, multiplicity, state-federal overlap, registration, and sentencing consequences without treating an accusation or thumbnail as the analysis.
Seven proof questions organize the charge
| Issue | What the law requires | What the record should identify |
|---|---|---|
| Identity, date, and venue | This accused committed the charged act in North Dakota during the period submitted to the jury. | Count language, file events, device and account attribution, platform time zone, location, and offense-date law. |
| Knowledge | Knowledge of the performance’s character and content. | What was visible, opened, created, edited, named, discussed, previewed, sent, or controlled; access by other users; automated processes. |
| Act theory | Production, direction, or one defined promotion act. | The specific verb, who performed it, when, how, recipient or audience, platform, file, and count-specific proof. |
| Performance | A play, motion picture, photograph, dance, other visual representation, or any part of one. | Original file or event, completeness, visual character, edits, source, hash, format, and whether the exhibit matches the charged item. |
| Sexual conduct | One of the chapter’s actual or simulated statutory categories. | The charged subdivision, depiction, context, purpose language where applicable, and difference between actual conduct and statutory simulation. |
| Minor at the time | The person was a minor when the performance occurred; current law also defines certain computer-generated images as a minor. | Age record, creation date, appearance evidence, 2025 amendment, whether a real person or qualifying generated depiction is alleged, and offense date. |
| Obscenity | All three incorporated obscenity prongs, considering the performance as a whole. | Whole work, intended audience, North Dakota community standard, patent offensiveness, alleged sexual conduct, and claimed serious value. |
The statute does not say that knowing possession is enough. It does not say that every sexual performance by a minor is obscene. It does not eliminate the obscenity test because the subject was under eighteen. And it does not use the phrase “knowing the person’s age” as its express culpability clause. The law instead requires knowledge of character and content, proof that the person was a minor at the relevant time, and provides a limited good-faith reasonable-belief affirmative defense when the minor was in fact at least fifteen.
Each count should identify a distinct act or legally permissible unit of prosecution. If the State alleges multiple files, uploads, transmissions, recipients, performances, or dates, a count chart should show the exact exhibit and act assigned to each count. That work is essential for notice, sufficiency, unanimity, duplicity, multiplicity, double-jeopardy, sentencing, and plea analysis.
Performance, promotion, sexual conduct, and obscenity are separate elements
Performance is broader than a live event
Chapter 12.1-27.2 defines a performance as any play, motion picture, photograph, dance, or other visual representation, or any part of a performance. A still image, video, visual file, live or recorded event, or part of a larger work may therefore fit the form of a performance. That does not by itself establish sexual conduct, obscenity, age, knowledge, or a charged act by the accused.
Promotion contains twenty distinct verbs
“Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, ship, transport, publish, distribute, circulate, disseminate, present, exhibit, or advertise. Those alternatives cover conduct far beyond a commercial sale. But breadth does not erase proof. A local cache, automatic synchronization, platform thumbnail, uncompleted draft, forwarded link, shared-device activity, server artifact, or file accessible to another account presents different attribution and act questions from a deliberate transmission or public exhibition.
Sexual conduct is a defined list
The chapter includes actual or simulated sexual intercourse; sodomy as separately defined; sexual bestiality; masturbation; sadomasochistic abuse as separately defined; lewd exhibition of the buttocks, breasts, or genitals; a defined nude or partially denuded human figure when depicted for sexual stimulation or gratification of a viewer; and physical contact with clothed or unclothed genitals, pubic area, buttocks, or breasts. The minor need not know the minor is participating in the described conduct or any aspect of it. The State should identify the subdivision and supporting facts rather than rely on a generic label.
Obscenity is an additional three-part test
Section 12.1-27.2-01 defines an obscene sexual performance through the obscenity provisions in § 12.1-27.1-01. Taken as a whole, the average person applying contemporary North Dakota standards must find that the performance predominantly appeals to a prurient interest. It must depict or describe sexual conduct in a patently offensive manner. And, taken as a whole, a reasonable person must find that it lacks serious literary, artistic, political, or scientific value. “Patently offensive” means so offensive on its face as to affront contemporary North Dakota standards of decency.
All three parts matter. The first and second use North Dakota standards; the serious-value prong uses a reasonable-person formulation. The work must be considered as a whole. A prosecutor may argue that a short standalone file is the complete work, while the defense may dispute truncation, missing context, compilation boundaries, edits, intended audience, or serious value. A finding of statutory sexual conduct does not automatically decide obscenity.
The current minor definition changed in 2025
The current chapter defines a minor as an individual under eighteen or a computer-generated image used, created, adapted, altered, or modified to appear to depict an individual under eighteen through face, likeness, or other distinguishing characteristics. House Bill 1386 added the computer-generated-image definition and expanded “minor” in 2025. This is a major offense-date issue. Conduct before the amendment must be analyzed under the law then in force; the new definition should not be retroactively assumed. A current synthetic-image allegation also requires precise proof that the item meets the enacted definition and that § 12.1-27.2-03’s remaining performance, sexual-conduct, obscenity, knowledge, and act elements are satisfied.
Which statutory act?
Identify production, direction, or the exact promotion verb and the file, person, date, platform, recipient, or audience tied to it.
When did it occur?
Separate creation, modification, acquisition, synchronization, possession, upload, transmission, and deletion timestamps, as Noble requires.
Why is it obscene?
Test the whole performance against prurient appeal, patent offensiveness, and serious-value requirements rather than assuming the conclusion.
Who used the device?
Review attribution, passwords, shared access, remote sessions, account logs, cloud behavior, malware claims, extraction limits, and corroboration.
Later possession did not prove production during the charged period
Noble is the most important published North Dakota decision for this precise charge. The State charged four § 12.1-27.2-03 counts as occurring from June 2020 through January 2021. The jury was instructed that the defendant, during that period and in Williams County, knowingly produced, directed, or promoted an obscene performance including sexual conduct by a person who was a minor at the time.
The evidence did not match that submitted timeframe. Testimony placed creation of the four videos in August 2019, when the person was seventeen and approaching eighteen. The defendant conceded that the State proved possession during the later charged period, but the State produced no evidence that he distributed or uploaded the files then. The State conceded the producing counts carried the wrong date and did not reflect when the materials were produced. The Supreme Court reversed and vacated all four convictions.
The point is not that every approximate date defeats a prosecution. Noble explained that an erroneous date is not reversible unless time is an essential element, and unchallenged instructions become the law of the case. The decisive record showed the charged and instructed production period occurred after the person was no longer a minor, while the State had only later possession proof. The lesson is exact: production, direction, promotion, and possession must not be substituted for one another, and age must be connected to the performance at the time relevant to the charged act.
A modern digital case should therefore use a chronology rather than a single “file date.” Files can have embedded creation metadata, filesystem creation and modification dates, cloud upload times, message send times, platform publication times, cache or thumbnail dates, backup timestamps, and extraction dates. Copying can reset metadata. Time zones can shift displayed dates. A hash match may show identical content across devices but not who first created or transmitted it. The State’s chosen act and time must be supported by admissible, attributable evidence.
How I analyze the evidence
1. Preserve the original data before review changes it
Opening, previewing, downloading, exporting, transcoding, or copying a file can create access dates, thumbnails, caches, duplicates, or altered metadata. I seek forensic images, extraction reports, tool versions, hash values, evidence inventories, acquisition logs, time-zone settings, original platform returns, cloud exports, and chain-of-custody records. Working copies should remain distinguishable from originals. Sensitive evidence must be handled only through lawful discovery and secure procedures; it should never be copied to ordinary personal storage or transmitted casually.
2. Attribute the act, not merely the account
An account name or device location may be relevant, but attribution can involve shared devices, saved credentials, family accounts, employer systems, remote access, multiple profiles, cloud synchronization, automated downloads, messaging applications, backups, compromised accounts, or malware. I compare login history, IP and device records, session tokens, timestamps, location evidence, communications, purchase or subscription records, file alternatives, user profiles, browser artifacts, and witness testimony. The question is whether the evidence supports the charged person performing the charged verb at the charged time.
3. Separate production, direction, and promotion
Production can involve creating the visual performance; direction can involve controlling how it is performed or recorded; promotion encompasses the twenty defined acts. The prosecution should not use the broad list as an undifferentiated cloud. If the theory is transmission, identify the sender, recipient, message, attachment, timestamp, platform, successful delivery, and file. If the theory is publication or exhibition, identify the audience, access settings, availability, and duration. If the theory is procurement or manufacture, identify the act and evidence rather than relying on later presence.
4. Prove the person’s age at the relevant time
Section 12.1-27.2-06 permits age determinations through personal inspection, inspection of the photograph or motion picture, witness testimony based on appearance, expert testimony based on appearance, or another lawful method. Birth records, school or medical records, testimony, contemporaneous communications, account data, and verified dates may also matter. The statute asks whether the person was a minor at the time of the performance, not merely when police found the file.
For current computer-generated-image allegations, the 2025 definitions change the analysis. The defense should determine whether the State alleges a real person, an altered image of a real person, or a wholly generated visual representation; how the alleged age appearance was created; what face, likeness, or distinguishing characteristics are relied on; and whether the offense occurred after the amendment. Model output alone does not answer identity, creation, knowledge, act, obscenity, or temporal questions.
5. Test knowledge of character and content
Evidence can include creation or editing activity, repeated access, descriptive filenames, previews, communications, search terms, folder structure, intentional transfers, account settings, concealment, deletion, or admissions. But some artifacts can be generated automatically, inherited from a backup, cached, embedded in another file, or inaccessible to the ordinary user. The defense should know whether the file was opened, viewable, complete, password protected, corrupted, encrypted, partially downloaded, or merely referenced in a database.
6. Litigate obscenity as an element
The prosecution must prove more than sexual conduct. The actual performance, not a paraphrase or selected frame alone, is the evidence. The defense should identify the whole work, the alleged prurient appeal, the specific patently offensive depiction, the applicable audience, and any serious literary, artistic, political, or scientific value. Expert evidence is not automatically required for every obscenity question, but when offered it must satisfy Rule 702 and address the legal issue without simply instructing jurors how to decide guilt.
7. Review searches, seizures, and statements
Digital evidence may arise from a platform report, private search, employer or school device, border inspection, consent, probation condition, emergency disclosure, warrant, or later forensic search. I reconstruct who searched, whether a private actor became a government agent, what the warrant particularly described, the probable-cause nexus to each account or device, date restrictions, search protocol, return and inventory, and whether investigators expanded beyond lawful scope. Statements require separate Miranda, custody, invocation, waiver, voluntariness, and derivation analysis.
8. Use Rule 29 and instruction practice at the right time
Rule 29 permits a judgment-of-acquittal motion when the evidence is insufficient. Noble shows why the motion should be count-specific: which act, date, age, performance, sexual-conduct subdivision, obscenity evidence, knowledge proof, and attribution evidence is missing? Proposed instructions and objections should likewise preserve the exact legal disputes. A generic objection after a multi-count trial may not identify the defect clearly enough.
The exposure extends beyond the prison maximum
| Issue | Current framework | What must be checked |
|---|---|---|
| Class A felony ceiling | Up to twenty years’ imprisonment, a $20,000 fine, or both. | Offense date, count structure, criminal history, sentencing alternatives, consecutive or merged terms, and federal overlap. |
| Presentence investigation | North Dakota requires a Department of Corrections and Rehabilitation presentence investigation before sentencing on a felony § 12.1-27.2-03 charge. | Report contents, corrections, disputed facts, evaluations, risk material, and sentencing submissions. |
| Registration | Chapter 12.1-27.2 is included in North Dakota’s sexual-offender definition, and the court must impose registration for a felonious sexual offender. | Exact conviction, offense date, residence and temporary-domicile duties, risk level, duration, updates, travel, employment, school, and federal consequences. |
| Commercial activity | Section 12.1-27.2-04.2 creates a special fine scheme when the offense occurs in qualifying commercial or for-profit activity with ownership, control, managerial responsibility, or a financial interest beyond wages. | Entity, individual role, financial interest, transaction, prior qualifying offense, and offense-date statutory text. |
| Federal exposure | Federal production and receipt, distribution, transportation, or possession laws may create separate counts and penalties. | Actual federal statute, jurisdictional facts, real versus generated depiction, age, act, knowledge, count units, and state-federal sentencing interaction. |
The statutory maximum is not the likely sentence in every case, and the number of alleged files does not automatically equal the number of lawful counts. Sentencing can depend on the offense conduct, age, production or distribution facts, coercion, commercial activity, number and nature of performances, criminal history, treatment information, acceptance of responsibility, victim impact, related counts, and whether state and federal proceedings overlap. No outcome should be predicted without the actual charging and evidentiary record.
Registration is not a side note. It can affect residence, travel, employment, education, family life, internet activity, reporting, and public information for years. The exact duties and duration depend on the conviction, risk classification, offense date, and later orders. Immigration consequences can also be severe and require advice from qualified immigration counsel based on the precise statute, record, and sentence.
The affirmative defenses are narrow, but the State still must prove every element
Section 12.1-27.2-05 provides a good-faith reasonable-belief affirmative defense concerning age only when the person appearing was actually at least fifteen. The defense requires both subjective good faith and objective reasonableness; the complete relationship, representations, records, appearance evidence, communications, and offense-date law matter. It is unavailable by its terms when the minor was under fifteen. The defense should not be confused with rewriting the State’s express knowledge element as knowledge of age.
A second affirmative defense applies when the material or performance was disseminated or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other appropriate purpose by or to specified professionals or another person with a similar interest. The actor, purpose, method, audience, necessity, access controls, scope, and handling all matter. Merely labeling a collection “research” or forwarding material outside a genuine professional purpose does not establish the defense.
Separate from affirmative defenses, the State can fail on identity, act, time, performance, sexual conduct, age, obscenity, or knowledge. Noble is a sufficiency decision, not an affirmative-defense decision. The convictions failed because the evidence did not establish producing, directing, or promoting during the charged period. A defense should preserve both kinds of issues: statutory defenses supported by evidence and the prosecution’s independent burden on every element.
What to preserve immediately
- The complaint, probable-cause statement, warrants and affidavits, inventories, forensic warrants, returns, release order, and hearing notices.
- Original devices and storage media in their present state, without opening, deleting, moving, renaming, syncing, resetting, or sharing files.
- Forensic images, extraction reports, hash lists, tool versions, time-zone settings, logs, chain of custody, and platform or provider returns.
- Complete communications, account and login history, cloud records, upload and download logs, shared-access evidence, and device-user information.
- Records bearing on the person’s age, performance date, creation date, alleged promotion act, intended audience, and any computer-generated-image issue.
- Documents supporting a statutory bona fide purpose or a good-faith reasonable belief about age, handled only through counsel and lawful procedures.
Do not open, forward, screenshot, copy, download, upload, delete, or show suspected unlawful material to another person. Do not conduct your own image search or contact a depicted person. Preserve devices safely and obtain case-specific legal advice about lawful handling.
Frequently asked questions
Is possession enough for this charge?
No. Section 12.1-27.2-03 requires producing, directing, or promoting. In State v. Noble, later possession did not prove those charged acts during the period submitted to the jury, and four convictions were reversed and vacated.
What does “promote” mean?
The chapter lists twenty acts: procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, ship, transport, publish, distribute, circulate, disseminate, present, exhibit, or advertise. The State must connect the accused and count to an actual charged act.
Does every sexual performance by a minor satisfy § 12.1-27.2-03?
No. This class A offense additionally requires an obscene performance. All three incorporated obscenity prongs must be proved. Section 12.1-27.2-04 is a distinct class B offense without that same obscenity wording.
Must the State prove the accused knew the person’s age?
The express culpability clause is knowledge of the performance’s character and content. The statute separately requires that the person was a minor and provides a limited good-faith reasonable-belief affirmative defense when the minor was actually at least fifteen. The current instruction and controlling law should not be replaced with an invented age-knowledge element.
How can age be proved?
Section 12.1-27.2-06 allows personal inspection, inspection of the performance, witness appearance testimony, expert appearance testimony, or another lawful method. Records and other admissible evidence may also matter. Age must connect to the time of the performance.
Does current North Dakota law cover computer-generated images?
The current chapter contains a 2025 definition covering certain computer-generated images made to appear to depict an individual under eighteen. Conduct before that amendment requires the earlier law. A current charge still must satisfy the remaining act, knowledge, performance, sexual-conduct, and obscenity requirements.
What is the maximum penalty?
The current offense is a class A felony with an ordinary maximum of twenty years’ imprisonment, a $20,000 fine, or both. A felony conviction also requires a presentence investigation and falls within North Dakota’s sexual-offender registration framework. Commercial activity and federal counts can add separate consequences.
Should I bring the alleged material to a consultation?
No. Bring the complaint, inventory, warrants, extraction report, platform records, and device information. Do not open, copy, forward, upload, or display suspected unlawful material. Counsel can arrange a lawful, secure review of evidence produced in the case.
A lawyer’s file review of Producing, Directing, or Promoting an Obscene Sexual Performance by a Minor
Most bad early advice comes from answering the charge label instead of reading the charging clause. I begin with the operative count and work outward: definitions, exceptions, enhancement facts, evidence, procedure, and only then possible outcomes.
Read the count as a set of propositions the State must prove
For Producing, Directing, or Promoting an Obscene Sexual Performance by a Minor, the governing text begins with N.D.C.C. §§ 12.1-27.2-03, 12.1-27.2-01, 12.1-27.1-01, 12.1-27.2-05, and State v. Noble, 2023 ND 119. That citation matters because a familiar charge name can contain several statutory routes, definitions, and sentencing rules. I read the exact count, the alleged date, and every incorporated definition before deciding which facts are material and which allegations are simply part of the narrative.
Next, I connect each material fact to evidence the prosecution can actually present. The source might be a witness, a recording, a certified record, laboratory work, device data, or an admissible inference—but it should be identifiable and testable. That approach shows whether the real dispute concerns what happened, how evidence was obtained, whether it is admissible, or whether it proves the required element at all.
The evidence I would ask for first
For Producing, Directing, or Promoting an Obscene Sexual Performance by a Minor, I would not begin with a canned list of defenses. I would begin with the source file: every recorded interview, complete message and social-media exports, device-extraction reports and underlying data, provider records, medical or forensic records, location information, witness timelines, prior statements, and the material needed to evaluate consent, age, authority, force, coercion, identification, and the scope of any search. A police summary can identify what an officer or witness says happened, but it cannot substitute for the recording, photograph, data, or document being summarized. The same is true of a complaint. It identifies the prosecution’s theory at the start of the case; it does not prove the theory.
I put those materials on one chronology. That lets me see what was known at each decision point, which account was contemporaneous, what appeared only after people spoke with one another, and where the record is silent. It also keeps an admissibility question separate from a factual one. A fact can be disputed even if the evidence was lawfully obtained. Evidence can also be accurate yet inadmissible for a particular purpose. Those are different arguments and should not be blurred together.
Read the charging document against the offense date
The alleged date matters because statutes, penalty thresholds, definitions, sentencing rules, and published decisions change. I save the version in force on that date and read the session-law history when the current online text is different. I also check whether a later amendment was merely clarifying or made a substantive change; that is a legal question, not an assumption. The same discipline applies to prior convictions and administrative events. A prior must fit the definition the charged statute actually uses, fall within any stated lookback period, and be proved by a reliable record.
I then compare the formal count with the probable-cause narrative and the discovery. If the prosecution’s theory shifts, I want the amended pleading and enough detail to prepare. If several factual alternatives are alleged, I identify whether they are separate elements, alternative means, enhancement facts, or merely evidentiary details. That distinction affects notice, motions, jury instructions, unanimity arguments, and how a verdict form should be read.
Separate an evidentiary weakness from a suppression issue
Not every troubling fact produces a motion to suppress. Suppression ordinarily requires a constitutional, statutory, or rule-based violation with a remedy that reaches the evidence at issue. A weak identification, an incomplete investigation, or a witness inconsistency may be powerful at trial without making evidence inadmissible. By contrast, a stop, search, interrogation, identification procedure, warrant, or test can raise a legal issue even when the resulting evidence appears incriminating. I analyze both tracks and do not promise dismissal simply because one problem exists.
For a search issue, I reconstruct what officers knew before each intrusion and what authority they claimed. For a statement, I examine custody, questioning, warnings, voluntariness, recording, and the complete context. For scientific or technical evidence, I request the method, underlying data, quality-control material, uncertainty information, and chain of custody. For hearsay or confrontation questions, I identify the actual statement, its purpose, the declarant, and the proposed foundation. Specificity matters; “the evidence is bad” is not a motion.
Prepare negotiation and trial at the same time
A plea decision should be compared with the case the State could present at trial, not with the complaint’s maximum penalty in isolation. I want to know the strongest admissible proof, the weakest required element, the realistic motion practice, the likely instructions, and the consequences of every proposed disposition. That includes custody, probation, treatment, restitution, driving, firearm restrictions, registration, employment or licensing, immigration consultation, family-court effects, and record consequences when they are actually triggered. I avoid telling a client that every collateral consequence applies to every conviction.
Trial preparation gives negotiation its credibility. Witness interviews, exhibit review, motions in limine, expert consultation, demonstrative evidence, jury instructions, and a clean theory of the case force both sides to confront what can be proved. Negotiation can continue while that work is underway. The two tracks are not opposites.
A case-law point worth keeping in its proper place
Appellate decisions matter, but a quotation should not be detached from the issue the court was deciding. In State v. Hartson, 2024 ND 78, ¶ 26, the North Dakota Supreme Court explained that, on a sufficiency challenge, “we do not weigh conflicting evidence, or judge the credibility of witnesses.” That is an appellate-review rule, not a reduction of the State’s burden at trial. At trial, the prosecution still must prove every element beyond a reasonable doubt. I cite the case for the point it actually decided and then return to the charged statute, the instructions, and the admissible evidence in the present file.
What I would want you to understand before choosing an outcome
You should be able to identify the exact charge, the facts that set its level, the disputed elements, the evidence that matters most, the motions that have a legal basis, the realistic trial issues, and the concrete effect of each proposed resolution. If an answer depends on a missing report, recording, expert opinion, or certified record, I will say so. An honest answer about what remains unknown is more useful than a confident guess.