Summary

This is a petition to District Attorney Michael J. Allen of the 4th Judicial District in Colorado to investigate and hold Derrick Wilburn accountable for violating Colorado obscenity law when he read explicit passages from the novel Push, by Sapphire, to elementary and middle school children, without parental consent, at the Chinook Trail Middle School student-led ASD20 board candidate forum on October 4, 2023.

 

Introduction

To the Honorable Counsel Allen,

We, a group of parents, grandparents and legal guardians, as well as other concerned members of the community (hereinafter referred to as “Community”) of Academy School District 20 (hereinafter referred to as “ASD20”) school children (hereinafter referred to as “Minors”), respectfully request your attention to a matter that is of critical importance to their well-being and protection. As concerned citizens, we are fully convinced this matter, which rises to the level of criminal behavior as established and confirmed by both U.S. and Colorado state law, requires the thorough attention and direct involvement of your office.

Understanding you are thoroughly knowledgeable in the following regulations, we, nevertheless, present them to aid in supporting our fundamental case:

 

Existing Legislation

Miller v. California, decided June 21, 1973 by U.S. Supreme Court: Also referred to as the “Miller Test”, the U.S. Supreme Court devised a three-pronged test to determine whether a work presumed obscene is legitimately subject to state regulation and not protected by the First Amendment. The three criteria, all of which the material in question must meet, are as follows:

1. Whether the average person, applying contemporary “community standards”, would find that the work, taken as a whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law; and
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

CRS 18-7-101, current through 2023 Legislative session: specific clauses applicable to this petition include:

1. The average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex
2. (I) Patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or (II) Patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, or covered male genitals in a discernibly turgid state; and
3. Taken as a whole, lacks serious literary, artistic, political, or scientific value; and
4. "Wholesale promote" means to manufacture, issue, sell, provide, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, or to offer or agree to do the same for purpose of resale.

CRS 18-7-102, current through 2023 Legislative session: Under this Colorado Revised Statute within which definitions closely mirror those provided under Miller v. California, the wholesale promotion of obscenity to a Minor is a class 6 felony (carrying 1 year to 18 months in prison and/or $1,000 to $100,000 fines).

 

The Offense

On October 4, 2023, ASD20 held a student-led school board candidate forum at Chinook Trail Middle School at 9750 Grand Lawn Circle, Colorado Springs, CO 80924 (hereinafter referred to as “CTMS”). This forum was intended as an opportunity for middle school students, typically of but not limited to Minors of age 11-14, to participate directly in our local government processes by leading a question and answer forum for the candidates for the two ASD20 school board member seats up for election.  Attendance at this forum was not limited to middle school students, and other children of all ages were visibly in attendance.  The entirety of this event has been recorded and has, at the time of writing this petition, been made publicly available on YouTube by ASD20 with the disclaimer “Some content may not be suitable for all ages.”  Here is a link to the aforementioned video: Student Led Academy District 20 - Board of Education Candidate Forum (hereinafter referred to as “The Video”).

At time 42:08 in The Video, a student read the following question from the podium directed at the four school board candidates to answer in turn:

“How does the school board ensure that banned books do not negatively impact students’ access to diverse educational literature?”

Each candidate answered in turn, and candidate Derrick Wilburn was the last to answer (time 47:11 in The Video). A portion of his answer is presented here:

 

“I do not curse. I’m going to speak some words now that have not come from my lips in 30 years, and I apologize in advance, ladies and gentlemen, for what you’re about to hear.  These are books currently available in district 20 school libraries.  Please forgive me in advance.

Title is Push. Page 32, ‘Daddy put his peepee smelling thing in my mouth, my pussy, but never hold me. I see when he first created pink dress dirty sperm stuff on it.  About three months after baby was born, I’m twelve when this happens, mama slapped me hard. Then she picked up a cast-iron skillet and she hit me so hard I fall back on the floor. Then she kicks me in the ribs, and she say, ‘Thank you Miz Claireece Precious Jones for fucking my husband you nasty little slut! Fat cunt bucket slut! Nigger pig bitch! All you tell them motherfuckers at the damn hospital? I should kill you’, she screamed at me.”

 

Mr. Wilburn continued to read explicit passages from several other books, but there is no reason to investigate further than his reading from the novel, Push, as detailed above.

Push, by Sapphire, is considered by some to be an important work of literature that explores the topics of sexual abuse, poverty, neglect and racial inequality. The Follett Destiny school library management system used by ASD20 has shown that the book was not available in the CTMS library - or in any elementary or middle school library - which is consistent with the subject matter being inappropriate for elementary and middle school children.  The novel was also adapted into the 2009 film, Precious, which won two Academy Awards, including the award for Best Adapted Screenplay.  The film was given an R rating by the Motion Picture Association of America, restricting access to ages 17 and up, which would make the film adaptation of the novel appropriate only for a subset of older high school students.  When viewed or read at an age appropriate level, both the film and the novel, when taken as a whole, do not pass the three-pronged Miller Test for obscenity.

However, it should be plainly obvious that the explicit passages that Mr. Wilburn read aloud, when taken out of context and away from the work as a whole, easily meet the definition of obscenity as per CRS 18-7-101. Furthermore, it can be easily confirmed that Mr. Wilburn read these passages aloud over an amplified public address system in a middle school to an audience of elementary and middle school children, as clearly evidenced by The Video.  We reject any possible explanation that Mr. Wilburn did not realize that young children were in attendance, as such a defense would be absurd given the fact that the event itself was, by definition, a middle school student-led candidate forum.

 

In Conclusion

We recognize, as quoted from your own and the Colorado District Attorneys’ Council website, that your office is “charged with seeking the truth and pursuing justice under the law on criminal matters that occur” in your jurisdiction; and that you work hard to “uphold our constitutionally protected rights while diligently pursuing justice on behalf of victims and our community.” We were delighted to see that your guiding principle is that “the time is always right, to do what is right”, as this falls in line with jurisdictional authority covered under C.R.S. 18-7-103.

We recognize, also, that Mr. Wilburn’s behavior was motivated by making a political statement about obscenity in school libraries. However, our reading of Part One (Obscenity - Offenses) of C.R.S. Title 18 (Criminal Code) Article 7 (Offenses Relating to Morals) affords no exception for the promotion of obscene material in making a political statement, and certainly no exception of any kind when obscene material is intentionally disseminated to a gathering of young children without parental consent.

We ask for appropriate action as required by law for the necessary, exigent protection of Minors from the wholesale promotion of obscene material by Mr. Wilburn. That Mr. Wilburn is now in an elected position of authority over the education of children in our Community adds to the urgency and importance of this matter.