Massachusetts Appeals Court Affirms Child Pornography Conviction Against Man Who Possessed Picture of Child Wearing See-Through Clothing

The Massachusetts Appeals Court today upheld a guilty finding against a man who possessed a picture of a young girl who was wearing lingerie that exposed her breast.  The name of the case is Commonwealth v. Graziano.

When the defendant’s computer was infected with a virus, he brought it to a technician for repairs.  The technician found two images of a girl who was wearing lingerie.  In at least one of the photos, the girl’s breast (including her nipple) was clearly visible through the clothing.  The trial judge remarked that the girl appeared to be “a lot closer to twelve or thirteen than eighteen.”  The technician reported the defendant to the police, which resulted in the defendant being charged with possession of child pornography.  The defendant chose to waive the jury and have a trial before just a judge (known as a bench trial).  The judge found the defendant guilty.  According to news reports, the defendant was spared jail time but required to register as a sex offender.  He appealed and the Appeals Court upheld his conviction.

The Massachusetts child pornography statute punishes anyone who possesses the image of a child “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.”  The plain language of the statute states that the depiction of an unclothed private area of a child constitutes child pornography.  The defendant argued on appeal that if the child was wearing an article of clothing over her private body part – which was clearly the case here – then the statutory language precludes a conviction for possession of child pornography.  This was the correct argument, and the Appeals Court should have reversed the defendant’s conviction.  Instead, the Court determined the clear statutory language needed to be viewed “in context” to determine its real meaning, in order to effectuate the intent of the Legislature.  The Court pointed out that the intent of the statute was to protect kids from sexual exploitation.  This protection included preventing children from having their naked private parts displayed in a lewd manner.  Therefore, if a child’s private part can be viewed through a see-through garment, the Legislature would have wanted the child pornography statute to apply.  The Court concluded, incredibly, that if a child is wearing clothing that is see-through, then a judge or jury can find that the body parts covered by the see-through clothing are actually “unclothed.”  Thus, the defendant was properly convicted of possessing child pornography.

What a terrible decision.  The Appeals Court ignores the plain language of the statute to protect a clearly erroneous conviction.  The Court should never have speculated about the intent of the Legislature in a case where the statutory language was unambiguous.  With respect to the child pornography law, the Legislature is guilty of enacting a sloppy statute.  As a result, the defendant should have avoided a conviction for conduct that is morally reprehensible.  If there is a loophole in the statute, it’s the job of the Legislature – not the Court – to fix the language.  Hopefully the Supreme Judicial Court will grant further appellate review and reverse the Appeals Court’s decision.