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Archive for Saturday, June 2, 2001

State’s child porn law stands, justices rule

June 2, 2001

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The state's highest court rejected a legal challenge Friday to the Kansas law against child pornography from a defendant who obtained sexually explicit photographs using the Internet.

The challenge came from David Zabrinas, in the appeal of his Saline County conviction on one count of sexual exploitation of a child. He was sentenced to 21 years and four months in prison for soliciting and downloading pornography in 1996.

Zabrinas argued the state's anti-pornography law violates the rights of free expression protected by the First Amendment. He said the law is written so broadly that it makes the production, viewing and possession of any photograph of a nude child illegal.

In their unanimous ruling, the justices disagreed. They said the law bans the production or possession only of photographs of children under 16 engaged in sexually explicit conduct and that the law's reference to nudity is in that context.

Justice Edward Larson, writing for the court, said no depiction of a "harmless moment" could lead to a conviction.

"To satisfy this requirement, a picture or video must be more than an innocent display of nudity," Larson wrote. "No reasonable prosecutor could charge and no reasonable jury could find anyone guilty of satisfying sexual desires by viewing innocent pictures."

The charge in state court against Zabrinas arose from a federal investigation of a private Internet chat room where participants trafficked in child pornography.

Zabrinas also argued that the state should be required to prove that he knew the participants in the pictures were underage. The court didn't address the issue.

The justices did, however, order a new sentencing hearing for him.

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