ST. PAUL, Minn.—A three-judge panel of the Minnesota Court of Appeals has overturned the conviction of a man for possession of child pornography, ruling that the wording of the state statute regarding the offense requires that the conduct depicted in the images be of an act of apparent sexual stimulation or gratification.
The defendant, Gary Lee Johnson, had been convicted of possession of child pornography because of a single frontal image of an 11- or 12-year-old girl from the waist up, naked and lying down. According to the opinion, the girl in the photograph had asked a friend to take the photo with a cell phone camera. Johnson, the girl’s stepfather, did not take the image but admitted that he had sent it from the girl’s phone to his new cell phone. He was convicted by a district court of possession of a “pornographic work.”
Minnesota law stipulates that an image is considered a “pornographic work” if it “uses a minor to depict actual or simulated sexual conduct.” Sexual conduct is defined by the state as either an act of sexual intercourse, sadomasochistic abuse, masturbation, lewd exhibition of the genitals, or physical contact (clothed or unclothed) in an act of apparent sexual stimulation or gratification. It is the last designation that the government claims Johnson violated. The court found, however, that the definition is ambiguous, and that the image in question did not depict sexual conduct and was not a pornographic work.
According to industry attorney and Free Speech Coalition Board Chair Jeffrey Douglas, while the ruling is correct it has scant consequence beyond its immediate impact.
“It’s not a particularly significant case, except for Mr. Johnson, of course,” he told AVN. “There are features of the Minnesota statute that appear to be unusual. For instance, most states, like California, specifically refer to the subjective response of the viewer [of an image], which this one does not. Moreover, the image of a female nude from the waist up is not going to make a prosecution almost anywhere, and most states specifically list genitals. So, no, I don’t think the ruling has broad implications.”