The state was not required to prove that a secret recording of an 11-year-old girl undressing was lewd or graphic to convict a Montgomery County man of creating nudity-oriented material involving a minor, the Ohio Supreme Court ruled today.

The Supreme Court voted 5-2 to affirm the 2012 felony conviction of Terry Lee Martin for videotaping the girl. The Court accepted the case in order to clarify whether the definition of “nudity” differs for those charged with possessing materials with nude children from those charged with creating non-pornographic materials with child nudity.

Writing for the Court majority, Justice Paul E. Pfeifer explained the Court’s interpretation of R.C. 2907.323. To convict a person for possession of images of nude minors without violating the First Amendment, the images must depict nudity that “constitutes a lewd exhibition or involves a graphic focus on the genitals.” To convict a person of creating the child nudity materials, the lewd or graphic element does not apply, the Court concluded.

In separate dissenting opinions, Justices William M. O’Neill and Judith Ann Lanzinger suggested that to prevent a violation of the First Amendment the state must prove the images are lewd or graphic. They cited the U.S. Supreme Court’s 1990 Osborne v. Ohio decision, which found the only way the state law regarding possession of nude pictures was found constitutional was for the lewd or graphic requirement to be found in the images.

Lower Courts Interpret Law Differently
Martin recorded a video of the girl while she was undressing in a bathroom. He was charged with violating R.C. 2907.323(A)(1). The law prohibits photographing “any minor who is not the person's child or ward in a state of nudity, or create, direct, produce, or transfer any material or performance that shows the minor in a state of nudity.”

The statute has an exception that allows the photographing of a nude minor if the parents or guardian give written consent and it is used for “a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, member of the clergy, prosecutor, judge, or other person having a proper interest in the material or performance.”

At the trial, the parties stipulated that the girl’s parents did not consent in writing to Martin’s recording and it did not meet any of the uses stated in the law. He was found guilty and appealed his sentence to the Second District Court of Appeals, arguing that the trial court did not apply the proper definition of “nudity” in order to convict him. The Second District affirmed his conviction, but noted its decision was in conflict with the Fourth District Court of Appeals. The Supreme Court determined a conflict existed and agreed to hear the case.

Court Considers Narrower Definition of “Nudity”
The Supreme Court considered whether the definition of nudity in state law, R.C. 2907.01(H), applies when trying to convict a person for illegal use of child nudity or if a narrower definition of nudity developed by the Ohio Supreme Court in its 1988 State v. Young decision is required. In Young, the Court was analyzing the conviction for a violation of R.C. 2907.323(A)(3), which is essentially the same as (A)(1) only that it applies to possession of child nudity materials, not the creation of them.

Justice Pfeifer explained that R.C. 2907.01(H) defines nudity as “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.” The Court, in Young, concluded the possession of materials that depict mere nudity would be protected by the First Amendment, he wrote, and for there to be a violation of the law, the material must contain nudity that “constitutes a lewd exhibition or involves a graphic focus on the genitals.”

Martin argued that the video recording was not lewd or focused on the genitals, and Justice Pfeifer wrote the Court agreed. Martin contended that because the video did not meet the definition of nudity stated in the Young decision, he cannot be convicted of the law for creating child nudity material.

State Has Authority to Regulate Obscene Material
Justice Pfeifer wrote the state has broad powers to regulate the distribution of obscene material, and to prohibit the creation and possession of child pornography. The state has not suggested that child-nudity-oriented material is the same as child pornography, but that all the state’s interest in eliminating child pornography applies to eliminating child-nudity-oriented material.

“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,” he wrote.

Justice Pfeifer cited the U.S. Supreme Court’s Osborne decision and noted that penalizing the possession of child nudity raises First Amendment issues, but the case did not address the creation of it.

“We are not aware of any court in the country that has concluded that a person has the right, fundamental or otherwise, to create nudity-oriented material using someone else’s minor child unless it is for a proper purpose and is done with parental consent,” he wrote.

The majority concluded that the narrower definition of nudity does not have to be applied and that Martin was properly convicted when the court used the definition of nudity written in the Revised Code.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French joined Justice Pfeifer’s decision.

Dissent Finds Statute Meant to Protect “Morally Innocent”
In his dissent, Justice O’Neill cited the Young decision and stated the purpose of the exceptions that allow nude photos of children was designed for possessing or viewing nude minors “where that conduct is morally innocent.” He wrote that by applying only the definition in state law, R.C. 2907.01(H), the Court is criminalizing photographing nude infants absent written parental consent, and that many Ohioans currently possess innocent photographs of children in a state of nudity.

“Uncles, aunts, grandparents, and others take these photographs of their nieces, nephews, and grandchildren. And they do it without parental permission in writing,” he wrote. “That R.C. 2907.01(H) cuts so broadly shows that it cannot withstand constitutional scrutiny.”

Justice O’Neill maintained the U.S. Supreme Court upheld the conviction of Clyde Osborne in Osborne after citing the Young decision and the Ohio Supreme Court’s requirement that a violation required the lewd or graphic element. He asserted the section of the law that applies to possession, as it did in Osborne, applies to the companion section about creation that was used to convict Martin.

“Would this court have allowed Michelangelo to be imprisoned for carving a nude teenage David from marble yet stood by while the patrons of the Galleria dell’Accademia di Firenze went unpunished?” he wrote.

Justice Lanzinger in her separate dissent noted that Martin did not present a constitutional challenge to the prohibition of creating child nudity material, but that an overly broad interpretation of the law “would raise serious constitutional concerns.”

“I believe that we must apply Young’s statutory interpretation of ‘nudity’ to R.C. 2907.323(A)(1), effectively limiting the definition found in R.C. 2907.01(H), for the reasons stated in Justice O’Neill’s dissent,” she concluded.

2014-2028. State v. Martin, Slip Opinion No. 2016-Ohio-7196.

View oral argument video of this case.

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