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The highest court in Tennessee is reversing the conviction of a man who surreptitiously filmed a 12-year-old and 14-year-old girl showering, undressing and using the toilet.
While the jury at the Tennessee Supreme Court believed Thomas Whited recorded his daughter and her friend for sexual reasons, they did not believe that it constituted pornography because of the activities filmed.
Whited allegedly positioned his cell phone both in his daughter’s bathroom and bedroom in order record his daughter and friend while they showered and performed after-shower activities, like trying on “bikini swimsuits.”
“The defendant can be seen at the beginning setting up the hidden cell phone camera, stepping back to ensure it was positioned the way he wanted, repositioning it if needed, and then leaving before Daughter entered the room,” the official court decision reads.
“It is unlawful for any person to knowingly possess material that includes a minor engaged in: (1) Sexual activity; or (2) Simulated activity that is patently offensive,” according to Tennessee law.
While some states define child pornography mostly based on the fact of whether or not the act is meant to sexually arouse the perpetrator, Tennessee apparently does not. What the images and recordings show is what legally matters.
“The material at issue must be evaluated based on what is depicted, without reference to the defendant’s subjective intent,” the ruling asserts.
Because the material did not include “exhibition of the female breast or the genitals, buttocks, anus or public or rectal area of any person” it does not classify as a “minor engaging in ‘sexual activity,'” the court ruling concluded.
Whited was originally convicted of nine counts of aggravated sexual exploitation of a minor and thirteen counts of observation without consent, among other lesser charges. Whited was arrested after his wife discovered the material on his mobile device.
While the nine counts of aggravated sexual exploitation of a minor were ultimately vacated, the jury’s “holding does not mean that the defendant’s conduct does not constitute a criminal offense.”
The observation without consent charges were upheld and re-sentencing was ordered to account for the adjustments.
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