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Depictions of Full Nudity Not Necessary to Establish That Photos Constitute "Child Pornography," Wisconsin Court of Appeals Holds

 

MADISON - This morning, the Wisconsin Court of Appeals affirmed James F. Lala's four Ozaukee County convictions for possessing child pornography.  The court rejected Lala's claim that Wisconsin's child pornography statute required proof of full nudity to establish that the photographs were "sexually explicit." 

 

Attorney General J.B. Van Hollen, whose office represented the State in the Wisconsin Court of Appeals, praised the decision.  "Partial clothing won't save a defendant from a conviction for possessing child pornography," says Van Hollen.  "Here, the court of appeals sensibly concluded that Lala's possession of the photos in question violated state law." 

 

During an unscheduled home visit, Lala's probation officer observed what appeared to be a picture of a young girl on Lala's computer screen.  Further investigation by the Wisconsin Department of Justice's Division of Criminal Investigation revealed suspected images of child pornography stored on Lala's computer.  Lala was charged, tried and convicted on four counts of possessing child pornography. 

 

On appeal, Lala claimed that full nudity was required in order to conclude that the pictures in his case constituted "child pornography" under Wisconsin law.  Because the child in the images wore nylons and some other clothing, Lala claimed his possession of the pictures did not violate the law. 

 

Adopting arguments made by the Wisconsin Department of Justice, the Wisconsin Court of Appeals flatly rejected Lala's claims.  From the court's decision: 

 

At issue in this appeal is what constitutes "lewd exhibition" and thus "sexually explicit conduct" within the meaning of 948.12(1m). 

            . . . .  

Here, the photographs in question depict a child whose pubic mound is effectively unclothed. Her skirt is riding up to the top of her legs. If she is wearing nylons at all, they certainly do not provide a full opaque covering and leave her intimate parts visible. The child's legs are positioned in such a sexually suggestive manner as to allow an unnatural and unusual emphasis on the child's genitalia, rendering the photographs both lewd and sexually explicit . . . . The statute defines possession of child pornography as an offense against children.  The harm caused to the psychological, physical, and mental health of a child who is displayed as a sex object with her skirt lifted and genitalia fully visible through nude nylons is as much an offense as if she were fully unclothed. Requiring the latter as a matter of law in order to prove that the conduct is sexually explicit, despite the see-through nature of the alleged nylons, would defy common sense and construe the statute in an unreasonable manner.

 

The Wisconsin Court of Appeals also concluded that e-mail communications between Lala and various websites requesting similar photographs proved that he knew the character and content of his photographs to be sexually explicit.   

 

James F. Lala remains incarcerated at the Green Bay Correctional Institution, Green Bay, Wisconsin. 

 

Today's decision in State of Wisconsin v. James F. Lala, No. 2008AP2893, appears on the Wisconsin Court of Appeals's website:

 

http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=38547

 

The Ozaukee County District Attorney's Office represented the State of Wisconsin in Ozaukee County Circuit Court.  Assistant Attorney General Sally Wellman represented the State in the Wisconsin Court of Appeals.