Secret nude recordings weren't 'lascivious' and didn't violate child porn law, top state court says
A Tennessee man who secretly made video recordings of girls ages 12 and 14 at his home didn’t violate the state’s child pornography law because the nude images didn’t amount to “lascivious exhibition,” according to the state supreme court.
Unlike other states, Tennessee’s child pornography law does not consider whether the motive of the viewer was sexual arousal or gratification, the court said in a decision (PDF) on Monday. The Knoxville News Sentinel, the Chattanoogan and WBIR have stories.
The court decision reversed Whited’s convictions on nine counts of especially aggravated sexual exploitation of a minor. The law at issue defines child pornography as material that depicts minors in simulated or actual sexual activity, or that depicts “lascivious exhibition” of a child’s body parts.
The defendant, Thomas Whited, had made cellphone video recordings of the girls showering and changing clothes. The videos didn’t capture sexual conduct and didn’t focus on body parts.
The state had argued the voyeuristic perspective of the videos had sexualized the images. The Tennessee Supreme Court said the question “is close,” but the video depictions don’t rise to the level of “lascivious exhibition” of the minor’s private body areas. “Rather, the minors in the videos are engaging in everyday activities that are appropriate for the settings,” the court said.
The opinion left intact Whited’s conviction on charges of misdemeanor spying, attempted spying and attempted aggravated sexual exploitation. The court also said that double jeopardy does not bar a retrial of Whited on charges of attempted especially aggravated exploitation of a minor.
