Commonwealth v. Rex , 469 Mass. 36 ( 2014 )

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SJC-11480
COMMONWEALTH vs. JOHN REX.
Norfolk. March 3, 2014. - July 9, 2014.
Present: Ireland, C.J., Spina, Cordy, Gants, Duffly, & Lenk,
JJ.
Obscenity, Child pornography. Habitual Offender. Practice,
Criminal, Dismissal, Grand jury proceedings. Grand Jury.
Lewdness. Probable Cause. Constitutional Law, Freedom of
speech and press. Evidence, Photograph.
Indictments found and returned in the Superior Court
Department on January 18, 2012.
A motion to dismiss was heard by Mitchell H. Kaplan, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Varsha Kukafka, Assistant District Attorney (Anne Yas,
Assistant District Attorney, with her) for the Commonwealth.
Bruce W. Carroll for the defendant.
Carlo Obligato, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae, submitted
a brief.
SPINA, J. A Norfolk County grand jury indicted the
defendant, John Rex, on seven counts of possession of child
2
pornography, G. L. c. 272, § 29C, and seven counts of being a
habitual offender, G. L. c. 279, § 25. 1 Relying on Commonwealth
v. McCarthy, 385 Mass. 160 (1982), the defendant filed a motion
to dismiss the indictments, which the Commonwealth opposed. He
claimed that the seven photocopies of photographs of naked
children (excerpted from a National Geographic magazine, a
sociology textbook, and a naturist catalogue) on which the
indictments were based did not constitute child pornography
within the meaning of G. L. c. 272, § 29C, and were protected by
his right to free speech under the First Amendment to the United
States Constitution and art. 16 of the Massachusetts Declaration
of Rights. Following a hearing, a judge in the Superior Court
allowed the motion to dismiss, concluding that none of the
photocopies constituted a "lewd exhibition" of the children's
body parts as described in G. L. c. 272, § 29C (vii). The
Commonwealth filed an appeal pursuant to G. L. c. 278, § 28E,
and Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501(1996). The case was entered in the Appeals Court, and we
1
Lieutenant Patrick Barrett of the Department of Correction
testified before the grand jury regarding the defendant's status
as a habitual offender. He stated that the defendant's criminal
record reflected the following convictions, all of which
resulted in State prison sentences: rape of a child, for which
the defendant received a sentence of from sixteen to twenty
years; dissemination of matter harmful to minors (five counts),
for which the defendant received a sentence of from four to five
years on each count; malicious explosion, for which the
defendant received a sentence of from eight to ten years; and
attempt to commit a crime, for which the defendant received a
sentence of from four to five years.
3
transferred it to this court on our own motion. At issue is
whether the judge properly dismissed the indictments on the
ground that the grand jury were not presented with any evidence
to support a finding of probable cause to arrest the defendant
for possession of child pornography. Because we conclude that
the photocopies did not depict a "lewd exhibition" as set forth
in G. L. c. 272, § 29C (vii), we affirm the order of the
Superior Court. 2
1. Statutory framework. General Laws c. 272, § 29C,
provides, in relevant part:
"Whoever knowingly purchases or possesses a . . .
photograph or other similar visual reproduction . . . of
any child whom the person knows or reasonably should know
to be under the age of [eighteen] years of age and such
child is . . . (vii) depicted or portrayed in any pose,
posture or setting involving a lewd exhibition of the
unclothed genitals, pubic area, buttocks or, if such person
is female, a fully or partially developed breast of the
child; with knowledge of the nature or content thereof
shall be punished . . ." (emphasis added). 3
The Legislature's purpose in enacting this statute was to
protect children from sexual exploitation. 4 See St. 1997,
2
We acknowledge the amicus brief filed in support of the
defendant by the Committee for Public Counsel Services.
3
General Laws c. 272, § 29C, also prohibits the knowing
purchase or possession of visual materials in which a child
under eighteen years of age is depicted in six other categories
of sexual conduct. See G. L. c. 272, § 29C (i)-(vi). The
parties agree that only § 29C (vii) is relevant to the
photocopies at issue in this case.
4
The Legislature articulated the reasons underlying the
enactment of G. L. c. 272, § 29C, when it stated: "The general
4
c. 181, § 1. The focus of G. L. c. 272, § 29C, is the knowing
purchase or possession of child pornography, not its
dissemination. Contrast G. L. c. 272, § 29B (statute
criminalizing dissemination of visual material of child in state
of nudity or sexual conduct).
2. Factual background. The facts are drawn from the
evidence presented to the grand jury. The defendant is an
inmate at the Massachusetts Correctional Institution at Norfolk.
On August 31, 2011, correction officers conducted a search of
the defendant's cell, which he shared with another inmate. In a
padlocked footlocker assigned to the defendant, the officers
found an envelope containing seven photocopies of photographs
court hereby finds: (1) that the sexual exploitation of
children constitutes a wrongful invasion of a child's right to
privacy and results in social, developmental and emotional
injury to such child and that to protect children from sexual
exploitation it is necessary to prohibit the production of
material which involves or is derived from such exploitation and
to exclude all such material from the channels of trade and
commerce; (2) that the mere possession or control of any
sexually exploitative material results in continuing
victimization of children as such material is a permanent record
of an act or acts of sexual abuse or exploitation of a child and
that each time such material is viewed the child is harmed; (3)
that such material is used to break the will and resistance of
other children so as to encourage them to participate in similar
acts; (4) that laws banning the production and distribution of
such material are insufficient to halt this abuse and
exploitation; (5) that to stop the sexual abuse and exploitation
of children, it is necessary to ban the possession of any
sexually exploitative materials; and (6) that the [C]ommonwealth
has a compelling interest in outlawing the possession of any
materials which sexually exploit children in order to protect
the privacy, health and emotional welfare of children and
society as a whole." St. 1997, c. 181, § 1.
5
that depicted naked children. 5 The photocopies, which will be
described in detail later in this opinion, were black and white,
and they appeared grainy. 6 The defendant admitted that the
photocopies were his, and he told the officers that they were
"from a pamphlet from a nudist colony that he had gotten many,
many years ago that he had cut out and stuck in the envelope." 7
5
During their search of the defendant's cell, correction
officers also found several hand-drawn pictures of children
engaged in sexual acts (two of which were in the envelope with
the photocopies), a sketch of a boy holding a baseball bat
(later determined to be an image of Adam Walsh, a six year old
boy who was abducted and murdered in 1981), and the "makings of
a small teddy bear." Because these additional items did not
serve as bases for his indictments, we do not consider them
further.
6
Department of Correction officer Michael O'Malley
testified that any pictures that depict nudity are deemed
contraband, the possession of which constitutes a disciplinary
infraction. This policy was implemented by the Department of
Correction in 2002. The existence of this policy has no bearing
on whether the photocopies at issue are "lewd," and, therefore,
whether their possession constitutes a crime under G. L. c. 272,
§ 29C (vii). See Commonwealth v. Sullivan, 82 Mass. App. Ct.
293, 302 (2012) (depiction of mere nudity insufficient to render
photograph lewd).
7
The photocopies originated from three sources: a special
issue of National Geographic magazine devoted to China (one
photocopy); an Internet edition of a textbook entitled
"Sociology" (one photocopy); and a naturist catalogue entitled
"Internaturally Inc.," which offered for sale travel packages,
books, videos, and photographs relating to nude recreation (five
photocopies). The grand jury were not presented with the
original source materials for the photocopies. Rather, the
source materials were introduced by defense counsel, without
objection from the Commonwealth, at the hearing on the
defendant's motion to dismiss the indictments. During this
hearing, the assistant district attorney stated that, at the
time of the grand jury proceedings, the Commonwealth did not
have any information regarding the origins of the photocopies.
6
Based on his years of training and experience, Sergeant David
McSweeney of the State police testified that all of the images
were of real children (not computer depictions or morphed
images) who were under the age of eighteen.
3. Standard of review. The Commonwealth contends that the
proper standard of review is whether the evidence before the
grand jury established probable cause to arrest the defendant
for possession of child pornography. We agree with the
Commonwealth, mindful of special considerations that arise when
a case involves expression that may be protected by the First
Amendment.
Ordinarily, a "court will not inquire into the competency
or sufficiency of the evidence before the grand jury."
Commonwealth v. Robinson, 373 Mass. 591, 592 (1977), quoting
Commonwealth v. Galvin, 323 Mass. 205, 211-212 (1948). See
Commonwealth v. Coonan, 428 Mass. 823, 825 (1999), citing
Commonwealth v McCarthy, 385 Mass. at 161-163. However, in
Commonwealth v. McCarthy, supra at 163, we recognized a limited
exception to this general rule, concluding that a court must
dismiss an indictment where the grand jury "fail[] to hear any
The motion judge considered this source material in allowing the
motion to dismiss. Its relevance to our analysis will be
discussed in note 13, infra.
7
evidence of criminal activity by the defendant." 8 See
Commonwealth v. Moran, 453 Mass. 880, 883-884 (2009), quoting
Commonwealth v. Coonan, supra. At the very least, the grand
jury must hear enough evidence to establish the identity of the
accused 9 and to support a finding of probable cause to arrest the
accused for the offense charged. Commonwealth v. McCarthy,
supra, citing Connor v. Commonwealth, 363 Mass. 572, 573-574
(1973), and Lataille v. District Court of E. Hampden, 366 Mass.
525, 531 (1974). See Commonwealth v. Roman, 414 Mass. 642, 643
(1993). "A grand jury finding of probable cause is necessary if
indictments are to fulfil their traditional function as an
effective protection 'against unfounded criminal prosecutions.'"
Commonwealth v. McCarthy, supra, quoting Lataille v. District
Court of E. Hampden, supra at 532.
It is well established that "[p]robable cause to arrest
'requires more than mere suspicion but something less than
evidence sufficient to warrant a conviction.'" Commonwealth v.
Roman, supra, quoting Commonwealth v. Hason, 387 Mass. 169, 174
(1982). See generally K.B. Smith, Criminal Practice and
8
We also have departed from the general rule of not
inquiring into the competency or sufficiency of evidence before
a grand jury where a defendant shows that the integrity of the
grand jury proceeding itself was impaired. See Commonwealth v.
Clemmey, 447 Mass. 121, 130 (2006); Commonwealth v. Mayfield,
398 Mass. 615, 619-622 (1986). In the present case, no such
claim has been raised.
9
Here, there has been no challenge to the identity of the
defendant.
8
Procedure § 3.51 (3d ed. 2007). "The evidence before the grand
jury must consist of reasonably trustworthy information
sufficient to warrant a reasonable or prudent person in
believing that the defendant has committed the offense."
Commonwealth v. Roman, supra. See Commonwealth v. O'Dell, 392
Mass. 445, 450 (1984), quoting Commonwealth v. Stevens, 362
Mass. 24, 26 (1972). See also Commonwealth v. McCarthy, 385
Mass. at 163. Where the Commonwealth has not produced any
evidence to support a finding of probable cause to arrest, an
indictment must be dismissed. See Commonwealth v. Levesque, 436
Mass. 443, 447 (2002). Conversely, where the Commonwealth
satisfies the probable cause standard, the determination whether
a visual depiction constitutes a "lewd" exhibition within the
meaning of G. L. c. 272, § 29C (vii), is one for a fact finder.
See Commonwealth v. Robinson, 373 Mass. at 592-594 (sufficiency
of evidence reserved for trial on merits).
We proceed to consider whether, in this case, the grand
jury were presented with any evidence to support a finding of
probable cause to arrest the defendant for possession of child
pornography under G. L. c. 272, § 29C (vii). 10 The defendant has
10
The defendant points out that the grand jury were not
instructed on the legal definition of child pornography.
Generally speaking, the Commonwealth is not required to provide
legal instructions on the elements of an offense for which it
seeks an indictment, out of a concern that such a requirement
"would add delay and complexity without serving any significant
purpose." Commonwealth v. Noble, 429 Mass. 44, 48 (1999). We
9
conceded that he possessed the photocopies, that the children
depicted in them were real children, that they were under the
age of eighteen, and that they were nude. Therefore, the
probable cause determination turns on whether the photocopies
depicted a "lewd exhibition." G. L. c. 272, § 29C (vii).
Typically, when considering an appeal from the allowance of a
motion to dismiss an indictment, we review the evidence in the
light most favorable to the Commonwealth. See Commonwealth v.
Washington W., 462 Mass. 204, 210 (2012), citing Commonwealth v.
Moran, 453 Mass. at 885. See also Commonwealth v. Levesque,
supra at 444. However, because this case involves depictions of
naked children, we must be sure that the grand jurors "have not
encroached on expression protected by the First Amendment." 11
Commonwealth v. Sullivan, 82 Mass. App. Ct. 293, 303 (2012).
have recognized only two limited exceptions to this general
rule, neither of which is applicable here. See Commonwealth v.
Walczak, 463 Mass. 808, 810 (2012); Commonwealth v. Noble,
supra. Given our disposition of this case, we do not decide
whether the general rule against the provision of instructions
to a grand jury should be expanded.
11
The depiction of nudity, in the absence of lasciviousness
or lewdness, is protected under the First Amendment to the
United States Constitution. See Osborne v. Ohio, 495 U.S. 103,
112 (1990); Erznoznik v. Jacksonville, 422 U.S. 205, 213 (1975).
See also Commonwealth v. Sullivan, 82 Mass. App. Ct. at 313
(Milkey, J., dissenting) ("a statute that sought to punish the
portrayal of mere nudity, even of children, would be
constitutionally infirm"). In contrast, child pornography, such
as described in G. L. c. 272, § 29C, is a category of material
that is outside the protection of the First Amendment. See
Osborne v. Ohio, supra at 111; New York v. Ferber, 458 U.S. 747,
763, 765 & n.18 (1982). See also Commonwealth v. Kenney, 449
Mass. 840, 848-849 (2007).
10
Accordingly, we undertake a de novo review of the challenged
pictures. See Commonwealth v. Bean, 435 Mass. 708, 714 (2002)
(Bean). See also Commonwealth v. Sullivan, supra at 303-307
(conducting de novo review of photograph of naked adolescent to
determine lewdness); Commonwealth v. Militello, 66 Mass. App.
Ct. 325, 331 (2006).
In Bean, supra at 708, following a bench trial in the
Superior Court, the defendant was convicted of posing a fifteen
year old girl for photographs with her breast exposed in
violation of G. L. c. 272, § 29A (a). The photographs were the
primary evidence of whether the defendant had acted with
"lascivious intent," which is a necessary element of the crime
of posing or exhibiting a child in a state of nudity or sexual
conduct. Id. at 708-709, 714, citing G. L. c. 272, § 29A. In
determining that de novo review of the photographs was
appropriate, we pointed out that the United States Supreme Court
had emphasized in Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 504-505 (1984), that "cases involving speech under
the First Amendment require independent appellate review of the
offending material to ensure that protected speech is not
infringed." Bean, supra at 714. See Pereira v. Commissioner of
Social Servs., 432 Mass. 251, 258 (2000), quoting O'Connor v.
Steeves, 994 F.2d 905, 912-913 (1st Cir.), cert. denied sub nom.
Nahant v. O'Connor, 510 U.S. 1024 (1993) ("appellate court has
11
an obligation to 'make an independent examination of the whole
record' in order to make sure that 'the judgment does not
constitute a forbidden intrusion on the field of free speech'");
Commonwealth v. Moniz, 338 Mass. 442, 446-447 (1959), citing
Roth v. United States, 354 U.S. 476, 497-498 (1957) (Harlan, J.,
dissenting) (appellate courts must judge pruriency of alleged
pornographic material to determine whether material is afforded
constitutional protection). See also United States v. Amirault,
173 F.3d 28, 32-33 (1st Cir. 1999), and cases cited. We noted
in Bean that "[t]he fact finder is in no better position to
evaluate the content and significance of these photographs than
an appellate court." Bean, supra at 714 n.15. Unlike testimony
from a witness, an objective analysis of tangible evidence such
as photographs requires no credibility determinations, rendering
de novo review appropriate. See Commonwealth v. Novo, 442 Mass.
262, 266 (2004). After conducting an independent review of the
photographs in Bean, this court concluded that the defendant's
conviction must be reversed because the evidence of lascivious
intent was insufficient. See Bean, supra at 709, 715-717.
We recognize that Bean involved a review of evidence
presented at trial, whereas the present case involves a review
of evidence presented to a grand jury. Nonetheless, the
underlying constitutional concern raised in each case is the
same -- whether photographs of the naked body are entitled to
12
protection under the First Amendment based on an assessment of
whether or not they are lewd. See Bean, 435 Mass. at 714-715.
See also note 11, supra. The nature of this assessment by an
appellate court does not change based on whether it occurs after
indictments are handed down or after trial. Consequently, we
deem it proper to consider whether the grand jury in this case
were presented with any evidence to support a finding of
probable cause to arrest the defendant for possession of child
pornography by reviewing de novo the seven photocopies at issue
to determine whether they are themselves lewd. 12 As the Appeals
Court cogently pointed out in Commonwealth v. Sullivan, 82 Mass.
App. Ct. at 306, "where First Amendment rights are at issue," we
must approach the lewdness determination with "circumspection."
4. Discussion. The Commonwealth asserts that the evidence
before the grand jury provided probable cause to arrest the
12
The Commonwealth contends that the original source
material for the photocopies should not be considered because it
was not presented to the grand jury, and it had no bearing on
the grand jurors' assessment of the actual photocopies possessed
by the defendant. We recognize that where the grand jury were
not presented with the source material, their assessment whether
the photocopies depicted a "lewd exhibition" under G. L. c. 272,
§ 29C (vii), could only be based on the photocopies themselves.
However, because First Amendment considerations necessitate de
novo review of the challenged evidence, we may evaluate the
pictures in the context of their source material. Had the
Commonwealth been aware of the source material at the time of
the grand jury proceedings, see note 7, supra, it would have
been incumbent on the assistant district attorney to present
such evidence to the grand jurors. In our view, the context of
the photocopies informs our analysis whether they should be
interpreted as a "lewd exhibition." G. L. c. 272, § 29C (vii).
13
defendant for possession of child pornography under G. L.
c. 272, § 29C (vii). In the Commonwealth's view, because the
seven photocopies depicted naked young children with their
genitals exposed, the photocopies were a lewd exhibition. As
such, the Commonwealth continues, the motion judge erred in
dismissing the indictments. 13 We disagree.
General Laws c. 272, § 29C, does not define a "lewd"
exhibition. It is well settled that "nudity alone is not enough
to render a photograph lewd." Commonwealth v. Sullivan, 82
Mass. App. Ct. at 302. See Osborne v. Ohio, 495 U.S. 103, 112-
114 (1990) (depictions of nudity, without more, constitute
protected expression); United States v. Amirault, 173 F.3d at
33. See also United States v. Villard, 885 F.2d 117, 125 (3d
Cir. 1989), quoting United States v. Villard, 700 F. Supp. 803,
812 (D.N.J. 1988) ("When a picture does not constitute child
pornography, even though it portrays nudity, it does not become
child pornography because it is placed in the hands of a
13
The Commonwealth also has asserted that the grand jury
could conclude that the defendant possessed child pornography
based not only on the photocopies themselves, but also on how
the defendant stored those images (in an envelope inside his
footlocker) and on what other items he possessed and kept with
the photocopies (hand-drawn pictures of children engaged in
sexual acts). Whether the photocopies depict a "lewd
exhibition," G. L. c. 272, § 29C (vii), depends on what is
visually portrayed in the pictures themselves, not on other
ancillary evidence that may be suggestive of the defendant's
state of mind. The context for the defendant's possession of
the seven photocopies is irrelevant to the objective assessment
of their lewdness.
14
pedophile"). In deciding whether a particular exhibition of a
child's naked body is lewd, courts have looked to the criteria
articulated in United States v. Dost, 636 F. Supp. 828, 832
(S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812
F.2d 1239, 1244 (9th Cir.), cert. denied, 484 U.S. 856 (1987),
which commonly are referred to as the Dost factors. 14 See
Commonwealth v. Sullivan, supra at 302-305. See also United
States v. Amirault, supra at 31-32. The Dost factors are as
follows:
"1) whether the focal point of the visual depiction
is on the child's genitalia or pubic area;
"2) whether the setting of the visual depiction is
sexually suggestive, i.e., in a place or pose generally
associated with sexual activity;
"3) whether the child is depicted in an unnatural
pose, or in inappropriate attire, considering the age of
the child;
14
The factors articulated in United States v. Dost, 636 F.
Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom. United States v.
Wiegand, 812 F.2d 1239, 1244 (9th Cir.), cert. denied, 484 U.S.
856 (1987), arose "from a line of cases in which the courts were
called on to interpret the Federal Child Protection Act of 1984
(18 U.S.C. § 2252), which defines 'sexually explicit conduct' by
reference to the phrase 'lascivious exhibition of the genitals.'
18 U.S.C. § 2256(2)(e) (2000)." Commonwealth v. Bean, 435 Mass.
708, 713 (2002). In the present case, G. L. c. 272, § 29C
(vii), expressly refers to a "lewd" exhibition, rather than a
"lascivious" exhibition. Nonetheless, for the purpose of our
analysis, we treat these terms as synonymous. See United States
v. Frabizio, 459 F.3d 80, 85 (1st Cir. 2006) (courts uniformly
have equated terms "lascivious" and "lewd"); United States v.
Wiegand, 812 F.2d 1239, 1243 (9th Cir.), cert. denied, 484 U.S.
856 (1987) ("'Lascivious' is no different in its meaning than
'lewd.'").
15
"4) whether the child is fully or partially clothed,
or nude;
"5) whether the visual depiction suggests sexual
coyness or a willingness to engage in sexual activity;
[and]
"6) whether the visual depiction is intended or
designed to elicit a sexual response in the viewer."
United States v. Dost, 636 F. Supp. at 832.
The Dost factors are neither comprehensive nor dispositive,
but they do provide guidance for a court's analysis whether a
visual depiction constitutes a "lewd" exhibition. 15 See Bean,
supra at 713-714, quoting United States v. Amirault, 173 F.3d at
32; Commonwealth v. Sullivan, 82 Mass. App. Ct. at 302-303. See
also United States v. Frabizio, 459 F.3d 80, 87 (1st Cir. 2006),
quoting United States v. Amirault, supra at 32. A determination
regarding lewdness "must be made on a case-by-case basis" and
should be founded on "the overall content of the visual
depiction." Dost, 636 F. Supp. at 832. See United States v.
15
The parties here have framed their arguments in the
context of the Dost factors. It is notable that in Dost, 636 F.
Supp. at 829-830, the defendants were charged with, among other
things, using a minor to engage in sexually explicit conduct for
the purpose of producing visual depictions of such conduct. The
sixth Dost factor is applicable in such a context because it
inquires about the producer's intent vis-à-vis the viewer. See
United States v. Amirault, 173 F.3d 28, 34-35 (1st Cir. 1999).
Where, as here, a case involves only the possession of child
pornography, the circumstances surrounding its production,
including the producer's intent, likely will be unknown.
Therefore, the sixth Dost factor may provide limited guidance
with regard to the lewdness determination in such a case. See
id. See also United States v. Rivera, 546 F.3d 245, 252 (2d
Cir. 2008), cert. denied, 555 U.S. 1204 (2009), and cases cited.
16
Frabizio, supra, quoting United States v. Amirault, supra. A
visual depiction need not involve all of the Dost factors in
order to be deemed lewd. See Dost, supra. Moreover, there may
be other factors that are equally or more important in the
lewdness analysis. See United States v. Amirault, supra.We consider the Dost factors in the context of the
Legislature's purpose in enacting G. L. c. 272, § 29C, namely to
protect children from sexual exploitation. See note 4, supra.
States have a compelling interest in protecting the physical and
psychological well-being of children, see New York v. Ferber,
458 U.S. 747, 756-757 (1982), quoting Globe Newspaper Co. v.
Superior Court, 457 U.S. 597, 607 (1982), and, consequently,
States may proscribe the possession of child pornography. See
Osborne v. Ohio, 495 U.S. at 111; Commonwealth v. Kenney, 449
Mass. 840, 848-849 (2007); Commonwealth v. Sullivan, 82 Mass.
App. Ct. at 302, quoting Commonwealth v. Kenney, 449 Mass. at
848. As the Legislature has pointed out, "the mere possession
or control of any sexually exploitative material results in
continuing victimization of children as such material is a
permanent record of an act or acts of sexual abuse or
exploitation of a child and . . . each time such material is
viewed the child is harmed." St. 1997, c. 181, § 1 (2). The
Legislature found that in order to "stop the sexual abuse and
exploitation of children, it [was] necessary to ban the
17
possession of any sexually exploitative materials." Id. at § 1
(5).
We turn now to consideration of the photocopies that were
found in the possession of the defendant. They are as follows:
Grand Jury Exhibit 7 is a picture of a man and four
prepubescent children standing on some rocks in front of a
body of water. The man is wearing a hat, and two of the
children are wearing sandals. Otherwise, they all are
nude. All are smiling. The man is holding one child in
his arms, two children are standing on his right side, and
one child is standing on his left side. The girl standing
on the man's right side is holding something in her hands.
The genitals of the man and of two of the children (boys)
are visible. The picture is approximately two inches by
two and one-half inches in size.
Grand Jury Exhibit 8 is a picture of a prepubescent
child as seen from the rear. The child is nude, except for
socks and sneakers. No genitals are visible. The picture
is approximately one inch by three inches in size.
Grand Jury Exhibit 9 is a picture of a prepubescent
boy as seen from the side. He is nude, except for sandals.
His genitals are visible, albeit not clearly. The boy's
arms are bent at the elbow and outstretched as if reaching
for or touching something in front of him. The picture is
approximately one inch by two and one-half inches in size.
Grand Jury Exhibit 10 is a picture of two prepubescent
boys, one standing in front of the other. The rear child
appears to be pouring water from a hose over the head of
the child in the front. Both are nude, and their genitals
are visible. Their lower legs and feet do not appear in
the picture. The picture is approximately one and one-half
inches by two and one-half inches in size.
Grand Jury Exhibit 11 is a picture of two prepubescent
children, a boy and a girl, standing side by side. Both
are nude, and their genitals are visible. The girl appears
to have her arm around the boy's waist, she is resting her
head on his shoulder, and she is smiling. Their lower legs
and feet do not appear in the picture. The picture is
approximately one and one-half inches by three inches in
size.
18
Grand Jury Exhibit 12 is a picture of a prepubescent
child, as seen from the rear, standing at the edge of a
body of water. The child is nude. No genitals are
visible. The picture is approximately one inch by three
and one-half inches in size.
Grand Jury Exhibit 13 is a picture of a prepubescent
boy, bending over a bicycle and appearing to adjust its
seat. He is nude, except for sandals. His genitals are
visible, albeit not clearly. The picture is approximately
two inches by three inches in size.
Based on our de novo review of the photocopies, it is
plainly apparent that their only notable feature is the nudity
of the children. In none of the photocopies is the focal point
of the visual depiction a child's genitals, and the children are
not shown in any unnatural poses. Rather, the children are
portrayed either simply standing around or engaging in ordinary
activities in unremarkable settings. The visibility of the
children's genitals is merely an inherent aspect of the fact
that they are naked. There is nothing remotely sexual, either
explicitly or implicitly, in any of the photocopies. The
demeanor, facial expressions, and body language of the children
suggest nothing inappropriate. In the photocopies depicting
more than one child, the children appear to be comfortable in
their surroundings and enjoying each other's company in a
nonsexual manner. Nothing about the photocopies indicates in
any way that they were derived from the sexual exploitation of
the children depicted therein, such that their possession would
19
result in the continuing victimization of those children. 16 As
we have said, the depiction of mere nudity is insufficient to
render a visual image lewd. See Osborne v. Ohio, 495 U.S. at
112-114; United States v. Amirault, 173 F.3d at 33; Commonwealth
v. Sullivan, 82 Mass. App. Ct. at 302.
As a matter of law, no grand jury could conclude that the
seven photocopies constituted a "lewd exhibition" under G. L.
c. 272, § 29C (vii). It follows, therefore, that the grand jury
were not presented with any evidence to support a finding of
probable cause to arrest the defendant for possession of child
pornography.
5. Conclusion. The order of the Superior Court allowing
the defendant's motion to dismiss the indictments is affirmed.
So ordered.
16
The images in the photocopies originated from photographs
accompanying written materials of an educational or recreational
nature that are readily available to the general public, albeit
perhaps to niche audiences. See note 7, supra. Generally
speaking, these types of images are not deemed "lewd." See
Commonwealth v. Sullivan, 82 Mass. App. Ct. at 306 (photographs
in medical textbook, pictorials in National Geographic, and
works in art museum typically not lewd exhibitions). Cf. United
States v. Various Articles of Merchandise, Schedule No. 287, 230
F.3d 649, 657 (3d Cir. 2000) (photographs from magazines devoted
to nudists' lifestyles not deemed lewd). Moreover, "[c]hild
pornography is not created when the [viewer] derives sexual
enjoyment from an otherwise innocent photo[graph]." United
States v. Villard, 885 F.2d 117, 125 (3d Cir. 1989), quoting
United States v. Villard, 700 F. Supp. 803, 812 (D.N.J. 1988).