Quantcast

2 say photos of girls weren't porn

Their attorneys argue children 'fully clothed'

Published: Thursday, Aug. 3 2006 12:00 a.m. MDT

A former Utah television personality and his business partner are asking a federal judge to drop child pornography charges against them, arguing a Web site they operated that contained pictures of young girls in suggestive poses does not rise to the level of pornography.

In a joint motion to dismiss indictments filed in federal court, attorneys for Matthew John Duhamel and Charles Philip Granere argue that the pictures on their site are of fully clothed children and show no nudity.

The pair were indicted last March with felony counts of transporting, receiving and possessing child pornography. Federal prosecutors claim their Web site, which has now been shut down, dealt in images of 9- and 10-year-old girls wearing scant clothing in suggestive poses. One photo reportedly shows a 9-year-old girl in "black stiletto pumps, a black lace thong, black bra, and a black jacket" sitting on a dining room table, according to court records.

In their motion, attorneys for Duhamel and Granere argue that there is no allegation of nudity nor do the locations of the photos suggest sexual locations.

Court have ruled that photos do not have to necessarily be nude in order to be considered "lascivious." The 10th Circuit Court of Appeals has defined "lascivious" as "tending to excite lust; lewd; indecent; obscene; sexual impurity; tending to deprave the morals in respect to sexual relations."

Case law has established a list of six standards by which courts can determine if a photo is in appropriate. These standards determine if the photo's focal point is of the child's pubic area; if the setting is sexually suggestive; if the child is depicted in an "unnatural pose" or in inappropriate attire; if the child is partially clothed or nude; if the picture suggests "sexual coyness or a willingness to engage in sexual activity"; and whether the picture is "designed to elicit a sexual response in the viewer."

Defense attorneys say, "Given the flexible and uninhibited nature of children, what is to say a certain pose is unnatural or sexually suggestive? One child's leisurely pose during play time could easily be mistaken for a sexually suggestive pose by someone with impure thoughts."

The defense attorneys argue that the work of some photographers, where the subject is naked children, have been considered art.

Assistant U.S. Attorney Mike Kennedy said his office plans to respond to the motion later this month. Kennedy said his office believes that under the legal standards, the Web site operated by Duhamel and Granere did deal in child pornography.

Although U.S. District Judge Tena Campbell is expected to rule on the motion sometime this fall, it is expected the case will likely go to the 10th Circuit Court of Appeals.

Duhamel was recently host of a local, late-night talk show on KPNZ Channel 24. For a short time, he also did weather forecasts for KUTV Channel 2 under the name Matt McCoy.


E-mail: gfattah@desnews.com

Get The Deseret News Everywhere

Subscribe

Mobile

RSS