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Critical Win for the Defense in an Obscenity Case

In recent years, Tennessee's subjective and draconian application of the sexual exploitation of a minor criminal statute has resulted in some chilling outcomes. The statute was intended to combat child pornography. But it has also been used like a heavy spiked club to incarcerate people even for photographing appropriately dressed minors engaging in age-appropriate activity. It was getting so bad that we could have to worry about being arrested for having a camera in a public park where there may be kids around. Finally, a panel of the Tennessee Court of Criminal Appeals is restoring some sanity to the application of this criminal obscenity statute.

At trial, the case of State v. Whitlock, E2010-00602-CCA-R3-CD (Tenn.Crim.App. 6-6-2011) was an example of one of these chilling outcomes. A man simply video taping a summer pool scene at his apartment complex was arrested, charged, and convicted of child pornography. Really. That actually happened.  In a Knox County jury trial in 2009.  He was sentenced to three years in prison for child pornography for video taping people simply playing in and around a pool at his apartment complex. Tennessee's sexual exploitation of a minor statute was intended to criminalize obscene images of children. Not to criminalize all images of children. But in effect, there are real examples of cases where that was exactly how it was being applied. The reasoning was that, although generally, kids appropriately dressed (the girl at issue in this case was wearing a swimsuit top and matching shorts) playing in a pool is not objectively obscene, it can become so in a given case depending on the subjective thoughts of the viewer. The problem with this reasoning of course is that it can make absolutely anything subjectively obscene. The statute then becomes about criminalizing thought rather than conduct.

In the Whitlock case, a witness testified that the Defendant was "moaning and groaning" while recording the video. The Defense characterized the sounds as humming to music that was playing at the pool. The State in this case argued that the Defendant's "moaning and groaning" suggested he was somehow aroused by the pool scene, and that transformed what would otherwise be a harmless image into child pornography. Fortunately, a panel of the Court of Criminal Appeals has rejected that view in this case and reversed the conviction, finding that the image should be analyzed objectively. Objectively, it was a girl playing, wearing appropriate attire for the circumstances, and not doing anything at all sexually suggestive.

The fact that the State would even seek criminal prosecution in such a situation remains frightening. But due to this well reasoned decision from a Tennessee Court of Criminal Appeals panel, we at least can feel a little more secure using our cameras in public.

For further information about what may or may not be considered criminal obscenity, contact Hindman & Associates.

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