Now legislators say they will look at closing the loophole created when they updated the state’s child pornography rules in 2002 to criminalize the use of computers to exploit children.
In the process of updating the state’s rules regarding the issue, lawmakers dropped a definition of child pornography that included any nudity “intended for sexual stimulation or gratification.” The new language requires that child pornography include an exhibition of genitals, pubic or rectal areas in a “lewd and lascivious manner.”
“It raised the bar considerably by adding an additional requirement of proof,” Dave Nelson, state’s attorney for Minnehaha County, S.D., said.
Lawmakers became aware of the loophole after a circuit court judge ruled in November that some images in a child pornography case against former Sioux Falls urban planner Donald Seten did not meet the state’s definition of illegal child pornography.
Seten’s lawyer argued that 19 of the 32 child pornography counts filed against Seten should be dropped because the images either didn’t show genitals, pubic or rectal areas or they were not shown in a lewd or lascivious manner.
Minnehaha County prosecutors were forced to dismiss several of the charges, after which Seten pleaded guilty to two counts of misusing a city computer. He will not face jail time as part of the plea agreement.
“One of the threshold questions was whether photographs are lewd or lascivious, and those terms are defined nowhere in the code,” Nelson said. “The law allows a wide range of latitude, in such that different people can examine and interpret the same evidence and come to different conclusions about them.”
Other attorneys throughout the state said they haven’t had a problem with the revised law.
Lara Roetzel, chief deputy state’s attorney for Pennington County, S.D., said she never tried a case during which a judge or jury disagreed with prosecutors’ definition of child pornography.
“These images are so disturbing that anybody who saw them would know they’re lewd and lascivious,” Roetzel said, referring to the images involved in Seten’s case.
Tom Wollman, state’s attorney for Lincoln County, S.D., said most of its child pornography cases have been clear-cut enough to avoid linguistic debates over lewd and lascivious. Wollman said when he defines the terms for jurors, he bases his explanation on a 1986 federal case, United States v. Dost, which characterizes lewd and lascivious images based on attire, setting or suggestiveness.
Digital files also are an issue that must be clarified. Senator Jason Gant, R-Sioux Falls, said a bill will be introduced next year to try to close a loophole around temporary Internet files – images or movies that are viewed but never permanently downloaded or stored on a computer’s hard drive.