Rapist May Write Porn, Judge Says

BOSTON — In a bizarre case of First Amendment protection that could have far-reaching affects on the legal merits of literary pornography as free speech, a convicted child rapist has been cleared to sue his jailers after they punished him for writing child porn.

Joseph Schmitt, 40, was convicted of raping two children, a 10-year-old boy and a 9-year-old girl, in 1992. During the course of his eight-year prison term, Schmitt reportedly sold a number of pornographic stories featuring adults to the gay sex magazines Kinky Fetishes, Boy Next Door and Coming Out.

He also, officials said, tried to sell pornographic stories about children, some of which ended up in the hands of convicted rapists at other prisons.

That was enough to prompt officials at the maximum-security Cedar Junction prison in Walpole to take away Schmitt’s television, radio and telephone privileges for 10 weeks.

After which Schmitt turned around and promptly sued his jailers.

On Tuesday, U.S. District Court Judge Rya Zobel ruled that state prison rules are not explicit enough to have allowed Cedar Junction officials to punish Schmitt for his writing. The rules, she said, only prohibit inmates from distributing “pictorial” pornography, not literary porn.

“Without ruling on the merits of plaintiff’s allegations, plaintiff has stated a claim for denial of due process,” Zobel said in her decision.

Although Zobel denied Schmitt’s claims that his punishment had been too severe, she allowed his suit to go forward on free speech and due process grounds.

The outcome of the Schmitt case could touch at the heart of a much larger question than whether a prisoner is allowed his porn or not. Amidst the vast increase in federal obscenity prosecutions this year on the heels of Attorney General Roberto Gonzales’ infamous porn squad, several high-profile cases have been brought against purveyors of written pornography.

Most notably, as previously reported in Xbiz on Oct. 3, the FBI's anti-obscenity squad raided the Pittsburgh home of the owner of RedRoseStories.com, a text-only website devoted to erotic fiction. Charges have yet to be filed, but the high-profile case may prove an important test ground since written stories alone have never been the basis for obscenity prosecution.

Owner Red Rosie potentially faces obscenity charges for posting stories that allegedly involved bestiality, water sports, scat, bondage and domination, S&M, slavery, threesomes, orgies and sex with children.