Fact Scenario: Before man is married to wife, he takes pictures of her naked, she is 17 at the time. While they are married, he shows some of these pictures to his friends and even gives them to his landlord to help make amends for late rent payments (real swell guy).

My questions is, 43.26 has an exception for the possession of child porn if you are the spouse of the child, but does that same exception apply to showing the pictures to others? The statute seems unclear to me, in that the exception is listed after the section dealing with possession of the pictures and before the section dealing with "promoting" the pictures. However, the exception says that it applies to the "section", not the "subsection."

Anyone have any thoughts? Thanks for the help.


Steve L.
ADA Hopkins County

Steve,
I sent your posting to our lawyers here at the AG's Office who do lots and lots of child porn cases. Here is what one came up with:

I think that assuming the husband is greater than 2 years older than the "child," he has violated the possession statute because he took the picture and possessed it before they were married. I do believe that the affirmative defense of the two of them being married does apply to promotion. If the DA's office is wanting to prosecute- they should do it for possession and use the "sharing" of the picture as a bad act in punishment.

(Thanks, Sarah Wannarka! )