Court Reverses Child Porn Convictions, Finding Material Was Non-Lewd Family Photos and Videos

From People v. Nichols, decided Tuesday by Justice Mark Clarke, joined by Justices John Barberis and Barry Vaughan:

[The] charges [in this case] were predicated on photographs and videos of the defendant’s minor daughters taken between 2002 and 2016 and were found on a computer and an external hard drive in the defendant’s home. The defendant’s husband, Douglas Nichols, who is not a party to this appeal [but who reportedly has filed his own appeal -EV], was also charged … with possession of the same images and videos.

Some backstory on how the images were found, from a March article in the Decator Herald & Review (Tony Reid):

Detectives with the Decatur Police Department had been looking for evidence on four counts of … earlier criminal sexual assault charges against Douglas Nichols alone plus eight counts of aggravated criminal sexual abuse involving a female teenage victim when they came across the pictures and video that led to the child sex abuse image charges.

A December 2022 story in the same newspaper by the same reporter says:

On May 20, 2021, the Decatur Police Department received a complaint from an individual alleging sexual assault that had occurred over 10 years ago by a subject known to them. The case was assigned to a detective and an investigation into the allegations immediately commenced.

Back to the wife’s appeal:

[D]efendant had two daughters, Ky.N. (born November 4, 2000) and Ki.N. (born October 1, 2002)…. Ky.N. testified [at trial] that she was voluntarily testifying, and that she had always felt safe and felt that her mother was supportive growing up. She testified that the family’s digital cameras were usually placed where anyone could access or use them, that she had used her mother’s phone to take pictures whenever she had wanted to, even daily, and that her sister had done the same. She also testified that her mother took photos of her and her sister all the time. Additionally, Ky.N. testified that her parents never asked her to take her clothes off before taking photographs or videos of her, and that they had never asked her to pose in a sexually suggestive manner….

Ky.N. testified that she didn’t recognize the photos but did recognize the home. She testified that she recognized her sister and herself, but she did not remember the photographs being taken or the events being depicted. She stated that it looked like they were having fun playing horses or unicorns with the toilet paper tails, and that she and her sister commonly played with toilet paper.

In regard to People’s Exhibit 4, she testified that she did not recognize the video, but that it was her sister Ki.N. playing with a pogo stick, and that she recognized both her and the defendant’s voice. In regard to People’s Exhibit 5, Ky.N. testified that she did not recognize the video, but that it was of Ki.N. and her cousin in the shower. She testified that her sister commonly sang in the shower and that, growing up, she recorded her sister singing in the shower by pointing the phone at the floor. On cross-examination, Ky.N. testified that she did not remember her parents ever taking nude photographs of her, and that she did not remember anyone else ever taking nude photos of her, and further reiterated she did not know who took the photographs but that it could have been anyone….

[D]efendant’s husband … testified that they left the children with babysitters on Tuesdays when both he and the defendant were at work. He testified that he took photos of his children all the time. He also testified that neither he nor the defendant had ever asked them to take their clothes off to take pictures, nor had they ever asked them to pose in suggestive ways. He testified that anyone could use any cameras at any time, but that he was the one who backed up all the photographs and videos from the family’s devices to the computer…. He testified that before he was charged, he had never seen any of the charged photographs, but that his children had been spontaneous, and that included doing the things seen in the charged exhibits….

The defendant … testified that she and Douglas would occasionally leave the children with babysitters every couple of weeks to go out together, and they left them with one every Tuesday while they both worked. She testified that the behavior seen in the photos was all in line with how Ky.N. and Ki.N. used to play. She testified that she took photos with her kids daily and that she took photos of them in both posed and spontaneous moments, but she never asked them to take their clothes off before doing so, nor did she ever pose them in sexually suggestive ways…. [She testified] that she never reviewed the old photos and stated she did not recall ever taking the charged images, but she admitted she had taken photos of her children while they were nude. She also admitted there were times she had recorded Ki.N. topless while she was engaged in physical activity….

[T]he defendant’s other daughter … testified that she was thankful for her parents and felt safe growing up. She testified that growing up, the family camera was typically kept in the kitchen and that everyone, including members of her extended family, and possibly even babysitters, had used it. She also testified that she used her mother’s phone to take pictures daily and her sister had used it frequently as well.

In regard to People’s Exhibits 7 through 12, she testified that she did not recall the photographs being taken, but believed that they had come up with the idea of making and playing with toilet paper tails, and that such activity was representative of the sort of spontaneous things they would do. In regard to People’s Exhibit 4, she testified that she was the girl on the pogo stick and that it was not uncommon for her to take off her shirt when she got hot as a kid. She also testified that she recognized defendant’s voice, as well as her sister’s voice in the video, but did not remember which one took the video.

In regard to People’s Exhibit 5, she testified that the girls in the shower were herself and her cousin, and that they were having fun showering and singing “Bop to the Top.” She also testified that she did not know who took the video. Finally, Ki.N. testified that her parents had never asked her to take her clothes off for a photo or video, nor had they ever asked her to pose in a sexually suggestive manner.

On cross-examination, she testified that she did not specifically remember if she took her top off in People’s Exhibit 4 because she was hot, nor did she remember who took People’s Exhibit 5, despite her claim on direct examination that she could see anyone who came in the bathroom due to its layout. She also testified that she didn’t believe People’s 7 through 12 were posed as she believed they were spontaneous….

The court goes through the relevant photographs in detail, and concludes that, though they showed some nudity, they “were not lewd as a matter of law” (which is what would be required to find that the photographs were constitutionally unprotected child pornography). The analysis is long, but here’s an excerpt:

People’s Exhibit 4 is a 17-second-long video of a partially nude adolescent female with partially developed breasts fully exposed. The video is filmed by a separate individual and appears to be taking place in a finished basement living room type area due to the placement of the window on the roofline of the wall and the presence of couches and a large television in the room,. As the video begins, the female’s entire body is visible in the frame, and she is only wearing underwear, socks, and slippers, with no other clothing. She is holding the pogo stick handles in her hands, with one foot on the pogo stick and one foot on the floor.

The female appears to know she is being recorded because she looks straight ahead, then at the camera, then back straight ahead. As the female begins jumping on the pogo stick, the video zooms in on her clothed pubic area, and then moves upwards, focusing on her head and unclothed torso, though much of her legs and arms remain visible as well. The female then falls off the pogo stick and out of frame. As the female steps back into frame, the video zooms out to show her whole body again, and she returns to her starting position. The video then ends.

Turning to the first factor [of the test that the Illinois Supreme Court developed to determine whether material was child pornography], the focal point of the video, we note that the video begins with the female visible “head-to-toe”; but once she begins bouncing it does zoom in on the area of her clothed genitals, then moves upward to focus on her head and unclothed torso until she quickly falls out of frame and it zooms back out to capture her whole body. The zooming appears somewhat clumsy. Taken as a whole, we find that this factor weighs in favor of finding that the video was lewd.

Turning to the second factor, the setting of the video appears to be a basement living room. There is nothing in the setting that would suggest or invite sexual activity. Therefore, we find that the video’s setting does not weigh in favor of finding it lewd.

Turning to the third factor, the adolescent female in the video is playing with a pogo stick, which is an age-appropriate activity. While she knows she is being recorded, she does not appear posed but instead appears to be actively playing in a moment of adolescent spontaneity. While the toplessness is inappropriate for the activity, we find it a minor factor here, as we note that we do not consider the nudity itself under this factor. Therefore, taken as a whole, we find that this factor does not weigh in favor of finding that the video was lewd.

Turning to the fourth factor, we note that the adolescent female in this video appears partially clothed, wearing underwear on her genitals but not wearing any top. While the nudity is partial, we do find that this factor weighs in favor of finding that the video was lewd.

Turning to the fifth factor, we note that there does not appear to be anything, including gestures, facial expressions, or the posing of the adolescent female, to suggest sexual coyness or willingness to engage in sexual activity. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.

Turning to the sixth and final factor, we note that the video does not appear to suggest an intention to elicit a sexual response in an objective viewer. Neither does the video appear to invite the viewer to perceive the images from a sexualized or deviant point of view, such as that of a voyeur, as the adolescent female appears to know she is being recorded. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.

In evaluating all of the factors together, we find that factors one and four are present while factors two, three, five, and six are not. While not all factors need to be present to support a finding that a video is lewd, we find that, taking into account the overall content of the image and the age of the minor, the video shows an adolescent engaged in nonsexual conduct that is not inappropriate for her age. While we find the video deplorable, it does not meet the standard required to deem it objectively lewd. Accordingly, we find that it does not constitute child pornography under Illinois law.