People v. Henley
2017 COA 76
| Colo. Ct. App. | 2017Background
- Henley was charged with 22 counts of sexual exploitation of a child (possession of individual images) and one count for possession of more than 20 items after police found images on his computer and internet search terms like "preteen girl pics."
- The charged images depicted fully or partially nude children in non-overtly sexual contexts (e.g., walking, posing, at a nudist camp); prosecutor conceded some images looked like "nudist camp photographs."
- Prosecutor introduced additional uncharged images (provocatively dressed children and naked adults) and relied on Henley’s internet searches and viewing purpose to argue the charged images were "erotic nudity."
- Defense objected that the uncharged images were prejudicial and that the charged images were not "sexually exploitative" as a matter of law; court admitted the uncharged images to show intent.
- Jury convicted Henley on most counts; on appeal the court reviewed whether the evidence was sufficient to show the images were "erotic nudity" under § 18-6-403.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an image becomes "erotic nudity" because a viewer (not the creator/distributor) views it for sexual gratification | An image can be "erotic nudity" if the particular viewer looked at it for sexual gratification; viewer’s purpose can transform otherwise innocent images | An image’s status must be judged objectively from the image and its creation/distribution context; a viewer’s subjective purpose cannot convert an innocent image into illegal material | The viewer’s subjective purpose cannot transform an otherwise non-exploitative image into "erotic nudity"; evidence was insufficient |
Key Cases Cited
- People v. Batchelor, 800 P.2d 599 (Colo. 1990) (statute reaches only images made for sexual gratification; protects innocently created nude-child images)
- People v. Grady, 126 P.3d 218 (Colo. App. 2005) (applies an objective "reasonable viewer" test to determine if images were produced for sexual gratification)
- People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999) (evaluation of image context to determine whether photos were taken for sexual gratification)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (First Amendment protects certain depictions absent direct harm to children; viewer’s purpose irrelevant)
- Osborne v. Ohio, 495 U.S. 103 (1990) (laws criminalizing child pornography are constitutional to prevent exploitation)
- United States v. Villard, 885 F.2d 117 (3d Cir. 1989) (focus on photographer’s intent and design of image; private fantasies not enough)
- United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) (lasciviousness is measured by how the photographer "arrayed" the exhibition)
- United States v. Amirault, 173 F.3d 28 (1st Cir. 1999) (use objective criteria of photograph’s design to determine intent to elicit sexual response)