Massachusetts' highest court ruled Tuesday that images from National Geographic that a convicted child rapist had collected in his prison cell are not pornographic, the Boston Globe reported.
John Rex, the convicted child rapist, was found in possession of images of naked children taken from the magazine and charged with seven counts of possessing child pornography, as well as seven counts of being a habitual offender. At the time, Rex was already incarcerated as a Level 3 sex offender, having been convicted of eight charges, including the rape and abuse of a child.
In his opinion, Justice Francis Spina of the State Judicial Court agreed with a lower court judge who said that the images photocopied from National Geographic were not pornographic because they were not inherently "lewd."
"Nudity alone is not enough to render a photograph lewd," he wrote. "There is nothing remotely sexual, either explicitly or implicitly, in any of the photocopies."
"As a matter of law," Judge Spina added, "no grand jury could conclude that the seven photocopies constituted a 'lewd exhibition.' It follows therefore that the grand jury were not presented with any evidence to support a finding of probable cause to arrest the defendant for possession of child pornography."
Norfolk District Attorney Michael Morrissey was disappointed with the high court's ruling, claiming that the other courts have found that otherwise innocent photographs can be considered child pornography when the images are cropped to emphasize the nudity of the children depicted in them -- as they were, he claimed, in Rex's case.
"We see this decision as an unfortunate departure from federal case law," Morrissey said in a statement. "A Norfolk County grand jury found that the images possessed by Rex were lewd, and the case law prior to this suggested strongly that decision was appropriately made by a jury of citizens."
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