Judge rejects claim by defense on porn

A Utah federal judge ruled Friday that nudity need not be present in photographs of children dressed in scant clothing in order to be considered pornographic.

U.S. District Judge Tena Campbell rejected the arguments of Charles Granere and Matthew Duhamel, who are both charged with transportation, receipt and possession of child pornography in connection with operating a Web site that peddled images of young girls in suggestive poses.

Granere and Duhamel sought to have the case against them thrown out, arguing that the models on their Web site, mainly 9- and 10-year-old girls, were not nude but clothed and therefore could not be considered pornographic under the law.

Federal prosecutors disagreed, saying the site had photos of young girls in very adult clothing and poses. According to charging documents, one photo of a 9-year-old girl shows her dressed in "black stiletto pumps, a black lace thong, black bra, and black jacket" sitting on a dining room table.

Federal agents estimated between 2,000 to 3,000 people paid $22 a month to access photos on the Web site.

In court Friday, attorney Richard Mauro argued that nudity must be a requirement in order to consider an image pornographic. Mauro pointed to the classic "Coppertone ad" showing a small dog pulling on the bottom of a girl's bathing suit. He also pointed to works of art and other advertising as examples.

"Where would Fredericks' of Hollywood be without their ads?" noted Campbell, accepting his point.

Assistant U.S. District Attorney Karin Fojtik said Congress made it clear that nudity does not have to be present to consider something pornographic. "The big difference is these are children," Fojtik said.

Campbell said the law is clear in not requiring nudity under the definition of pornography. She added the determination of whether or not the images peddled by Granere and Duhamel were pornographic should be made by a jury.

At the time the site was operating, Granere was president of his own Internet company. Duhamel is best known for briefly working as a weather forecaster for KUTV Channel 2 under the name Matt McCoy. More recently, Duhamel hosted a local, late-night talk show on KPNZ Channel 24.

Campbell said she plans to issue a written ruling, further outlining her decision.

After the hearing, Mauro said he will wait to see Campbell's written ruling before decided whether or not to appeal the decision to the 10th Circuit Court of Appeals in Denver.

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