Court ponders limits of Utah's child porn law

The Utah Supreme Court weighed a state child pornography law against the U.S. Constitution when it heard arguments in two cases Monday.

Gary Davis Peterson and Raymond Dean Morrison are appealing felony convictions of sexual exploitation of a minor under a 1999 statute recently clarified in amendments by state lawmakers.

Peterson pleaded no contest last year to one count of sexual exploitation of a minor for downloading photos of young nude girls from the Internet.

His attorney, Neil A. Kaplan, argued that the law under which Peterson was charged is unconstitutional, because it is too broad. The particular picture in question, Kaplan told the court, is "just a girl, not in an unnatural pose, standing on a beach."

But Assistant Attorney General Laura B. Dupaix responded that Peterson downloaded nine photos, not just one, and they were clearly intended for the "purpose of sexual arousal."

Justice Christine M. Durham grilled Dupaix with questions about the broadness of the prosecution's case. "Isn't there a long list of benign purposes for this (type of) material?" she said.

What if a sociology researcher had possession of similar photos in researching child pornography as a social ill, the judge asked. Or would books with pictures of nude minors for sale at local book stores be considered illegal?

Dupaix defended the state law, saying it does not penalize the possession of mere nudity, "but pictures whose purpose is sexual arousal."

Justice Leonard H. Russon also questioned the statute's broadness: "Could a person possessing this kind of material who is not aroused by seeing nude children still be prosecuted?"

No, Dupaix answered. "The statute covers content. That's what's prohibited," she said. For example, someone "turned on" by looking at children modeling underwear in a Sears catalog would not be prosecuted, Dupaix said, because the purpose of the catalog is clearly not sexual arousal.

In the second case before the court, Morrison pleaded guilty to 20 counts of sexual exploitation of a minor for downloading thousands of photographs showing young nude children engaged in sex with adults and with other children.

While the photographs in this case were clearly pornography under the law, Morrison's attorney, W. Andrew McCullough, argued that punishing him for multiple counts of what amounts to the same crime is "cruel and unusual punishment."