Texas Stamp

State Prosecuting Attorney's 2017 Annual Report for Judicial Support Agencies, Boards, and Commissions

BOLLES, MARK EDWARD

PD-0791-16 10/05/2016

  1. "The Thirteenth Court of Appeals erred in concluding that the image of a toddler with her genitals exposed, without any discernable reason for the exposure other than to arouse or offend the viewer, did not amount to a 'lewd exhibition of the genitals' for purposes of the offense of Possession of Child Pornography."
  2. "Does Rosie's toddler status in 1976 when Robert Mapplethorpe photographed her revealing her genitals control the 'child younger than 18. . . when the image was made' element of possession of child pornography when, long after Rosie reached adulthood, Appellant took a 'cropped' photo of the original depicting only her genitalia?"

Using his smart phone, Bolles took a photo of a computer screen image of Robert Mapplethorpe's 1976 photograph, "Rosie," which depicts a toddler siting on a bench, looking at the camera, and wearing a dress but no underwear so that her genitals are exposed. Bolles then cropped the image of that photo to remove everything but a closeup of the child's genitals and a small portion of her dress.

Child pornography is material that visually depicts a child under 18 at the time the image was made engaging in sexual conduct, which includes "lewd exhibition of the genitals." The court of appeals held that neither the original photo nor the cropped version constituted child pornography. First, it held the full version of the photo did not depict a lewd exhibition of the genitals. It declined to hold that all images of a nude child are lewd absent a reason for the nudity. Instead, it examined six factors from United States v. Dost, 636 F.Supp. 828, 832 (S.D. Cal. 1986), which ask whether: 1) the photo's focal point is on the child's genitalia; 2) the setting or the child's pose is sexually suggestive; 3) the child is depicted in an unnatural pose or inappropriate attire, considering the child's age; 4) the child is fully or partially clothed, or nude; 5) the photo suggests sexual coyness or a willingness to engage in sexual activity; and 6) the photo is intended or designed to elicit a sexual response in the viewer. Here, it held the genitals were not the focus of the photo because they were not in the center of the frame. The setting was an outdoor bench and the pose, although it revealed her genitals, was not inherently sexual. It also found that her expression did not suggest a willingness to engage in sexual activity. It concluded that nudity alone did not amount to lewdness.

The court also held that the cropped image did not violate the statute because, although the full image was made by Mapplethorpe in 1976, when its subject was a child, the cropped image was made by Appellant in 2014, when the subject was no longer a child. Therefore, the image did not depict a person under 18 at the time it was made.

The State submits that the younger the child is, the easier it should be to prove that the depiction is lewd. It also argues that a photo of a nude child should be deemed lewd unless it depicts a situation where nudity is an ordinary and incidental part of the activity, such as a bath or if the photo depicts something "cute or quaint." Applying the Dost factors, it argues that although the genitals are not in the center of the frame, they are obviously the focus because the are the most attention-grabbing feature of the photo. It acknowledges that the setting is not suggestive, but neither is it innocent, because there is no reason for the child to be exposed. And although children are not prone to sit in conventional positions, the child's pose appears to be coached because she is looking at the photographer, "who is presumably telling her what to do." The State argues that the child's being only partially exposed places the image in a different category than classical art and suggests that it is intended to excite or offend the viewer.

With respect to the cropped version of the photograph, the State contends it was made in 1976 because it captures the image of a child, regardless of alterations made to it after the child became an adult. Interpreting the statute any other way leads to absurd results the legislature could not have intended because it would exempt images of children made years ago that have been repeatedly saved, copied, and shared through email or over the internet. The State submits that even if the "image" of the child made in 1976 was not lewd, the "visual material" Bolles made from it was lewd, and the statute criminalizes visual material that is lewd.

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