Photos of Naked Children Found in Prisoner’s Cell were not Child Pornography

In an important ruling issued this week, the Massachusetts Supreme Judicial Court clarified the types of photographs that qualify as child pornography.  The defendant in Commonwealth v. Rex is a convicted rapist who is serving a state prison sentence.  In 2011, prison officials searched the defendant’s locker and discovered an envelope containing seven photocopies of photographs that depicted naked children.  The children were not engaged in sexual activity, although their genitals were visible in several of the pictures.  The defendant said he obtained the photos from a pamphlet from a nudist colony.  He was charged with seven counts of possession of child pornography.

Naked photographs of children qualify as child pornography only if they involve a “lewd exhibition” of unclothed genitals, pubic areas, buttocks, or the partially or fully developed breasts of a female.  Simple depictions of nudity, without more, constitute expression protected by the First Amendment.  In determining whether a photograph is “lewd,” courts consider a variety of factors, including: whether the focal point of the photo is the child’s genitals; whether the setting of the photo is sexually suggestive; whether the child is depicted in an unnatural pose or in inappropriate attire; whether the child is partially clothed; whether the photo suggests the child’s willingness to engage in sexual activity; and whether the photo is intended to elicit a sexual response in the viewer.

The Court found in this case that none of the photographs focused on the children’s genitals, and none of the children were shown in unnatural poses.  Instead, the children were either standing around or engaged in ordinary activities in unremarkable settings.  Because there was “nothing remotely sexual” about the photos, they were not lewd and accordingly did not satisfy the definition of child pornography.  Finally, the fact that the photographs were possessed by a sex offender did not transform the photographs into child pornography.

The issue of whether a photograph of a naked child is lewd often arises when parents take photos of their small children in the bathtub.  Spring & Spring has represented people who have been investigated for possessing child pornography when the photos innocently depicted their naked children.  If you learn you are the target of such an investigation, it is extremely important that you immediately contact an attorney to discuss your options.