Colorado court upholds conviction of man who took suggestive photos of minor

Tuesday, December 14, 1999

The Colorado Court of Appeals recently rejected the First Amendment defense of a man convicted of sexual exploitation of a minor for taking sexually suggestive photos of a 16-year-old girl.

Wayne H. Gagnon was charged with felony sexual exploitation of a child for taking photos of the girl at a park near her home. Gagnon arranged the photo shoot with the girl over an Internet chat room.

In some of the photos, the girl's breasts were partially exposed. She did not pose topless or completely naked.

After someone in the park complained to the police, Gagnon was arrested and charged with sexual exploitation of a child. A Douglas County trial court found Gagnon guilty.

On appeal, Gagnon argued that he could not be convicted of the charges, because the photos in question were not legally obscene under the U.S. Supreme Court's standards articulated in the 1973 decision Miller v. California.

In Miller, the high court said that in order for material to be considered legally obscene, it must appeal to the prurient or lustful interest, it must depict sexual conduct in a patently offensive way, and the work as a whole must lack serious artistic, political, literary or scientific value.

The Colorado Court of Appeals rejected Gagnon's argument that his photos had to obscene in order for him to be convicted of the sexual exploitation charges. In People v. Gagnon, the appeals court ruled that “the Miller standard may be adjusted” when dealing with the type of material at issue in Gagnon's case.

The appeals court noted that the U.S. Supreme Court reached a similar conclusion in its 1982 decision in New York v. Ferber when the high court ruled that child pornography is a form of expression not entitled to First Amendment expression.

“The test for child pornography is separate from the obscenity standard in Miller, but may be compared to it for the purpose of clarity,” the high court wrote in Ferber. “The Miller formulation is adjusted in the following respects: a trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.”

The Colorado appeals court concluded in its Dec. 9 opinion: “We therefore reject defendant's contention that he could not be prosecuted for sexual exploitation of a child unless the trial court found that the photos he took were obscene under the Miller test.”

Gagnon also argued that the law under which he was charged was unconstitutionally vague. Laws are considered unconstitutionally vague if they do not give an individual fair warning as to what type of conduct is illegal.

The state law at issue prohibited knowingly causing a child to engage in “explicit sexual conduct,” which includes appearing in a state of “erotic nudity.” A separate provision of the law defined “erotic nudity” as “the display of … the human breasts, or the undeveloped or developing breast area of the human child, for the purpose of real or simulated overt sexual gratification or stimulation.”

Gagnon contended that the law was vague because it did not specify whether the statute referred to display of the entire breast or just a portion of the breast.

The appeals court also rejected this argument, noting that “the photos in question displayed a substantial portion of the girl's breasts, and the photos were clearly for the purpose of sexual gratification.” The court added that the “the poses were sexually suggestive” and “the obvious intent was to elicit a sexual response in the viewer.”

The attorneys who handled the case for Gagnon and the prosecution did not return calls.