Nudity & Prurient Interest with regard to children -

COMMONWEALTH v. SAVICH (1998)

Superior Court of Pennsylvania.

“Although not every non-prurient nude depiction of a minor falls within the purview of the statute, such depictions made “for the purpose of sexual stimulation or gratification” of the viewer do.  42 Pa.C.S.A. § 6312(b);  see Ohio v. Young, 37 Ohio St.3d 249, 525 N.E.2d 1363 (1988) (statute's proscription is not so broad as to outlaw all depictions of minors in a state of nudity but only those depictions created for prurient purposes), cert. denied, 492 U.S. 904, 109 S.Ct. 3212, 106 L.Ed.2d 563 (1989);  Colorado v. Batchelor, 800 P.2d 599 (Colo.1990) (language of statute simply does not require that the “real or simulated overt sexual gratification be depicted in the material”).   The term “for purposes of sexual stimulation or gratification of the viewer” permits the fact-finder to distinguish between depictions such as those in the present case from nude depictions taken for legitimate scientific, medical or educational activities, which are specifically exempt under § 6312(f).   See Washington v. Bohannon, 62 Wash.App. 462, 814 P.2d 694 (1991) (the language “for purposes of sexual stimulation” serves to clarify and narrow the reach of the statute, enabling the court to distinguish between permitted and prohibited photographs under the statute).   This term also acts as a limitation to avoid the inhibition of freedom of expression.   See Batchelor, 800 P.2d at 602 (language “for the purpose of overt sexual gratification or stimulation of one or more of the persons involved” reduces the possibility that statute criminalizing the depiction of child nudity will be used to prohibit protected speech).   For example, the statute does not proscribe photographs taken for family, artistic or any other legitimate purpose because they are not taken for purposes of sexual gratification.”