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Ohio Supreme Court: Nude child photos don't have to be lewd to convict offender

by MARC KOVAC | CAPITAL BUREAU CHIEF Published: October 6, 2016 12:17 PM

Columbus -- Recordings of nude children don't have to be lewd in nature to lead to convictions, the state's high court ruled Oct. 5.

A majority of Ohio Supreme Court justices affirmed the sentence of a Dayton-area man imprisoned for secretly recording an 11-year-old girl while she undressed in a bathroom.

The facts of the case were not disputed: Terry Lee Martin was convicted for making the recording of a minor without "bona fide artistic, medical, scientific, educational, religious, judicial or other proper purpose" or the written consent of the girl's parents, according to documents.

Martin waived his right to a jury trial and was convicted on two felony counts. He appealed, however, arguing that the trial court did not apply the correct definition of nudity in his case.

The state law definition was wider in scope, compared to a separate appeals court decision that required lewd depictions or a focus on genitals, according to documents.

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Justices earlier determined that state law "does not prohibit the possession of materials that depict mere nudity, which is expression protected by the First Amendment," according to documents. "Instead, we concluded that [the statute] prohibits possession of materials that depict nudity that 'constitutes a lewd exhibition or involves a graphic focus on the genitals.'"

Martin argued that the video recording he secretly made was not lewd or focused on the genitals.

But justices determined that the case revolved around a state law that prohibits the creation of child-nudity-oriented material, "whether or not pornographic."

Writing for the majority, Justice Paul Pfeifer noted, "Even if child-nudity-oriented material is less harmful to the child depicted than child pornography, it is undeniably harmful. Even if child-nudity-oriented material is less exploitative of a child than child pornography, it is undeniably exploitative. Similarly, child-nudity-oriented material leaves a permanent record that can haunt a child into adulthood and provides an economic incentive to its purveyors and possessors."

He added later, "We are not aware of any court in the country that has concluded that a person has the right, fundamental or otherwise, to create nudity-oriented material using someone else's minor child unless it is for a proper purpose and is done with parental consent Given the state interests served by prohibiting the possession of child-nudity-oriented material, it is inconceivable that we would not conclude that the same interests justify a prohibition on creating child-nudity-oriented material."

Pfeifer was joined in the 5-2 decision by Chief Justice Maureen O'Connor and Justices Judith French, Terrence O'Donnell and Sharon Kennedy.

Justices Judith Ann Lanzinger and William O'Neill dissented.

Marc Kovac is the Dix Capital Bureau Chief. Email him at mkovac@dixcom.com or on Twitter at OhioCapitalBlog.


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