Ohio Supreme Court Defines ‘Nudity’ In Child Pornography Case

In a 5-2 decision regarding
State v. Martin, the Ohio Supreme Court has ruled that cases relating to
O.R.C. 2907.323(A)(1) will use the description of ‘nudity’ as provided by
O.R.C. 2907.01(H):

“”Nudity” means the showing, representation, or depiction
of human male or female genitals, pubic area, or buttocks with less than
a full, opaque covering, or of a female breast with less than a full,
opaque covering of any portion thereof below the top of the nipple, or
of covered male genitals in a discernibly turgid state.”

Terry Lee Martin was arrested after secretly filming an 11-year-old girl
undressing in a bathroom on March 18, 2012 and charged with possessing
criminal tools (O.R.C. 2923.24(A)) and creating nudity-oriented material involving a minor (O.R.C. 2907.323(A)(1)).
He was found guilty for both charges, but raised an assignment of error
during his appeal – he claimed that the incorrect definition of
‘nudity’ was used when he was convicted of violating O.R.C.
2907.323(A)(1).

The court of appeals affirmed Martin’s conviction, but certified
that there was in fact a conflict with a previous case. The Ohio Supreme
Court similarly determined the existence of the conflict, and ordered
the parties involved to brief the issue:

“With respect to R.C. 2907.323(A)(1), which proscribes the creation
or production of nudity-oriented material involving a minor, which definition
of nudity applies: the statutory definition (R.C. 2907.01(H)), or the
narrower definition set forth in
State v. Young, 37 Ohio St.3d 249, 525 N.E.2d 1363, which requires additional elements
of ‘lewd depiction’ and ‘graphic focus on the genitals?’”

It’s important to note that, while the question of which definition
of ‘nudity’ should be used in
State v. Martin, none of the other charges against Martin were under review.

During his appeal, Martin attempted to argue that because there was no
graphic focus on the genitals of the 11-year-old subject and there was
no lewd exhibition during his recording, he could not be convicted of
violating O.R.C. 2907.323(A)(1), an assertion the Ohio Supreme Court disagreed with. In
State v. Martin, Slip Opinion No. 2016-Ohio-7196, Justice Paul E. Pfeifer wrote that:

“We consider the difference between child-nudity-oriented material
and child pornography a matter of degree, not of kind… 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.”

Justice Pfeifer went on to write that Martin was never in fact charged
with possession (O.R.C. 2907.323(A)(3)), something that would bring First
Amendment interests into question; rather, he was charged with the creation
of the video depicting a nude minor. Because
State v. Young dealt with possession rather than creation, the Ohio Supreme Court focused
on the definition of nudity as it applied to O.R.C. 2907.323(A)(1), the
crime Martin was in fact charged with and determined that the definition
provided by O.R.C. 2907.01(H) applied.

Chief Justice Maureen O’Connor, Justice Sharon Kennedy, Justice Terrence
O’Donnell, and Justice Judith French concurred with Justice Pfeifer’s
opinion, while Justice Judith Lanzinger and Justice William O’Neill
dissented with separate opinion.