MA Supremes Rule National Geographic Photos Not Kid Porn

NORFOLK, Mass.—By pretty much any definition, John D. Rex is not a good guy. He's currently in the Massachusetts Correctional Institution as a Level 3 sex offender, having been convicted of eight sex offenses, including rape and child sexual abuse, so he's not getting out anytime soon. However, thanks to a decision by Massachusetts' Supreme Judicial Court, his sentence won't be extended for possession of child porn while incarcerated. According to the opinion in Commonwealth v. Rex, authored by Justice Francis X. Spina, "On August 31, 2011, correction officers conducted a search of the defendant's cell, which he shared with another inmate. In a padlocked footlocker assigned to the defendant, the officers found an envelope containing seven photocopies of photographs that depicted naked children. The photocopies ... were black and white, and they appeared grainy. The defendant admitted that the photocopies were his, and he told the officers that they were 'from a pamphlet from a nudist colony that he had gotten many, many years ago that he had cut out and stuck in the envelope.'" In fact, the photos were copied from National Geographic magazines, a sociology textbook and a naturist ("nudist") catalog—and yes, they all depicted nude persons under 18 years of age, all of which could be found in libraries and/or newsstands throughout the state, but that didn't matter: The correctional officers conducting the search arrested Rex anyway, charging him with seven counts of possession of child pornography (and seven counts of being an "habitual offender," since it wasn't his first brush with kids). However, although the grand jury indicted Rex on those offenses, a district court judge dismissed the charges, "concluding that none of the photocopies constituted a 'lewd exhibition' of the children's body parts as described in G.L. c. 272, §29C (vii)," Justice Spina noted. The relevant statute states, "Whoever knowingly purchases or possesses a photograph or other similar visual reproduction of any child whom the person knows or reasonably should know to be under the age of [eighteen] years of age and such child is ... (vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, pubic area, buttocks or, if such person is female, a fully or partially developed breast of the child; with knowledge of the nature or content thereof shall be punished․" But though the photos Rex possessed did indeed depict mostly front and rear views of prepubescent boys, the high court focused on the question of whether such images constituted a "lewd exhibition" under decisions by the U.S. Supreme Court, most notably U.S. v. Dost, which listed six factors which the court said "provide guidance" for whether a nude photo might be considered lewd. Those factors are: "1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; "2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; "3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; "4) whether the child is fully or partially clothed, or nude; "5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [and] "6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer." Based on those factors, and other Supreme Court case law, the justices upheld the district court's dismissal of the charges. "Based on our de novo review of the photocopies, it is plainly apparent that their only notable feature is the nudity of the children," the court concluded. "In none of the photocopies is the focal point of the visual depiction a child's genitals, and the children are not shown in any unnatural poses. Rather, the children are portrayed either simply standing around or engaging in ordinary activities in unremarkable settings. The visibility of the children's genitals is merely an inherent aspect of the fact that they are naked. There is nothing remotely sexual, either explicitly or implicitly, in any of the photocopies. The demeanor, facial expressions, and body language of the children suggest nothing inappropriate. In the photocopies depicting more than one child, the children appear to be comfortable in their surroundings and enjoying each other's company in a nonsexual manner. Nothing about the photocopies indicates in any way that they were derived from the sexual exploitation of the children depicted therein, such that their possession would result in the continuing victimization of those children. As we have said, the depiction of mere nudity is insufficient to render a visual image lewd." Though this decision sets precedent for what constitutes child pornography in Massachusetts, it remains to be seen how other states would view similar material—but if they do decide that the nude photos which were (and possibly still are) common in National Geographic magazines are child porn, one hell of a lot of people are going to be in trouble.