Sexual battery law is too vague, says Idaho appeals court
By The Associated Press
09.18.02
BOISE, Idaho — The state Court of Appeals yesterday overturned the sexual battery conviction of a Canyon County man, finding the state's law on the making of child pornography unconstitutionally broad.
The defendant, Gary Bonner, was caught by police outside the home of a 16-year-old girl with a video camera and a stepstool. Police determined that Bonner secretly videotaped the girl "in various states of undress" from outside the home.
Bonner was charged with sexual battery of a minor child of the age of 16 or 17 years old. His original argument for dismissal was denied by 3rd District Judge Dennis Goff, so Bonner entered a conditional plea of guilty while preserving his right to appeal.
The Idaho statute makes it a felony for an adult to make any photographic or electronic recording of a minor child with the intent of sexual gratification.
Bonner's attorney, Van Bishop, argued that the law unconstitutionally treads on First Amendment rights because it criminalizes the creation of photos or recordings based solely on the state of mind of the person creating them. The law could be also applied to recordings or creations of an entirely innocent nature.
In a seven-page decision packed with citations of previous case law, the three-member Court of Appeals unanimously said Idaho's statute "regulates a vast amount of expressive activity and is not sufficiently narrow to avoid criminalizing an intolerable range of constitutionally protected conduct."
The ruling cited U.S. Supreme Court observations that themes of teenage sexual activity and sexual abuse of children have "inspired countless literary works," including Shakespeare's Romeo and Juliet and recent Academy Award winning films.
Accordingly, laws limiting such expression must be carefully defined and be limited to works that visually depict sexual conduct by children below a specified age, among other restrictions.
"We do not suggest that the conduct attributed to Bonner may not be legislatively prohibited by a properly crafted statute," the court said. "We hold only that the statute under which Bonner was charged in this case does not provide a permissible vehicle for his prosecution."