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Ohio Supreme Court Defines 'Nudity' In Child Pornography Case

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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.