Judge says image on cell phone of half-naked girl isn't porn

Categories: Crime
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Gary Lee Johnson said all along that the picture on his cell phone of his half-naked 11-year-old step daughter, with her arms crossed and a forearm touching a breast, was not a pornographic image, at least as far as porn is defined by state law.

On Monday, the Minnesota Court of Appeals agreed with him, throwing out a lower court's conviction. The crux: Judge Harriet Lansing said the photo showed no sexual gratification, regardless of whether it may or may not have been used for that purpose.

She added, however, that the picture in question was part of a larger collection that gave her pause: "The underlying facts are deeply troubling, and may well provide a basis for other charges or, at minimum, a child-protection action."

According to court documents, Johnson, of Dilworth, lives with the girl and her mother. He denied taking the picture, but he admitted transferring it to his cell phone.

The decision offers a glimpse into the state's porn laws, the language of which would likely make a modest person blush.

"Sexual conduct" means any of the following:
(1) an act of sexual intercourse, normal or perverted, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal;
(2) sadomasochistic abuse, meaning flagellation, torture, or similar demeaning acts inflicted by or upon a person who is nude or clad in undergarments or in a revealing costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed;
(3) masturbation;
(4) lewd exhibitions of the genitals; or
(5) physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.
The girl may have been half naked in this case, Lansing said, but there's no indication in the picture that she's deriving any sexual gratification. And because Johnson's lower court conviction was "based on a determination of his own sexual stimulation as a viewer of the depiction and not based on the act depicted in the image, we reverse."

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