The Supreme Court of the state of Tennessee vacated the conviction of the charges of producing child pornography. The defended, a Knoxville man, named Thomas Whited secretly filmed his 12 year old daughter his daughter’s 14 year old friend. He recorded them showering, going to the bathroom, and undressing. Whited recorded the bathroom for two months for his own sexual reasons, but the the high court vacated his 22 year sentence on the grounds that what was filmed did not constitute pornography. Since the girls were not engaged in sexual acts and instead were doing “everyday activities.”, it wasn’t pornography. You can read the court’s decision here. It may not be considered porn, but in the area of child protection, the father certainly failed.
The majority of states define child pornography to varying degrees on whether the purpose of the recording is to sexually stimulate the one watching. That was the criteria used to prosecute and convict Mr. Whited. Tennessee, however, isn’t one of those states. The child pornography laws of Tennessee state that the intent of the viewer or producer of the recorded images isn’t relevant. What is relevant, is the what story the images or videos are telling.
The Tennessee law defines child pornography as showing children having sex, simulated “sexual activity,” and “lascivious exhibition” of children’s private parts. In this case, there was no sexual or simulated sexual activity being filmed. The court believed that that there was vagueness in the “lascivious” definition of the law. Otherwise filming a baby’s first bath might also be considered child pornography. The law seems to be having a hard time to balance child protection.
“The question is close, but we must hold that the videos at issue do not rise to a level at which the trier of fact could reasonably find that they include “sexual activity,” defined as the “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 and are not sexual or lascivious within the ordinary meaning of those terms. For this reason, we reverse and dismiss the defendant’s nine convictions for especially aggravated sexual exploitation of a minor.”
The court also added that the video producer’s “subjective intent or purpose of sexual arousal or gratification” isn’t relevant.
So what does this mean for child protection in our video everything age? It means that we have to be even more vigilant in how we protect our children. While it still may be illegal to record children in areas they are not expecting to be recorded, it won’t be child pornagraphy, at least in Tennessee and other states that interpret the law the same way.