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Motion To Dismiss - Rio Arriba County
FIRST JUDICIAL DISTRICT
COUNTY OF RIO ARRIBA
STATE OF NEW MEXICO
No. D-0117-CR-99-842
No. D-0117-CR-99-843
STATE OF NEW MEXICO,
Plaintiff,
vs.
MARK RENDLEMAN and
TIFFANY MIA BARBOSA,
Defendants.
MOTION TO DISMISS BASED ON FIRST AND FOURTEENTH AMENDMENTS
AND N.M. CONST. ART. II, SECTION 17
COME NOW Defendants Mark Rendleman (Mr. Rendleman) and Tiffany
Mia Barbosa (Ms. Barbosa), by and through their attorneys, and respectfully
move for an Order dismissing the Indictments brought against them
in these cases, and as grounds for the motion state as follows:
0. The Indictment in Case No. D-0117-CR-99-842 charges Mr. Rendleman
with 18 counts of sexual exploitation of children contrary to NMSA
1978, ¤ 30-6A-3B), 11 counts of criminal sexual contact of
a minor, contrary to NMSA 1978, ¤ 30-9-13A(1), and one count
of child abuse, contrary to NMSA 1978, ¤ 30-6-1(C). The Indictment
in Case No. D-0117-CR-99-843 charges Ms. Barbosa with 8 counts of
sexual exploitation of children, 11 counts of criminal sexual contact
of a minor, and one count of child abuse.
1. Mr. Rendleman is a nationally known artist and former professor
of art, with an extensive background in photography, film and video.
2. All of the charges relate to Defendants' conduct in taking artistic
photographs of three children with whom they have a parental or
custodial relationship. None of the photographs involve lewd or
lascivious displays of nudity or sexually explicit exhibition or
sexually explicit conduct. Defendants took the photographs for private
purposes and have never intended to display the photographs publicly.
3. Because the photographs have serious artistic value and do not
involve lewd displays of sexual activity, Defendants conduct was
constitutionally protected under the First and Fourteenth Amendments
to the United States Constitution and Article II, Section 17 of
the New Mexico Constitution.
4. In addition, because the statutes at issue did not provide fair
notice that Defendants' conduct constituted a crime, prosecution
of the Defendants violates the Due Process Clause of the Fourteenth
Amendment.
5. For the foregoing reasons, each and every count of the Indictments
should be dismissed.
6. Due to the nature of this motion, concurrence by opposing counsel
has not been sought. A memorandum in support of the motion is being
filed contemporaneously with this motion.
7. The Defendants respectfully request that the Court conduct an
evidentiary hearing to examine the factual predicate for Defendants'
constitutional claims.
WHEREFORE, Mr. Rendleman and Ms. Barbosa respectfully request that
this Court conduct an evidentiary hearing and dismiss the Indictments
in their entirety.
MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO DISMISS BASED ON FIRST AND FOURTEENTH AMENDMENTS
AND N.M. CONST. ART. II, SECTION 17
Defendants Mark Rendleman (Mr. Rendleman) and Tiffany Mia Barbosa
(Ms. Barbosa) submit this memorandum of law in support of their
motion to dismiss the Indictments.
1. INTRODUCTION.
1.
The Indictments in these cases charge Mr. Rendleman, a nationally
known artist and art professor, and Ms. Barbosa with sexual exploitation
of children and criminal sexual contact of a minor solely because
of photographs taken by Mr. Rendleman of three children, one of
whom is Mr. Rendleman's daughter and two others who have been in
the care of Ms. Barbosa and Mr. Rendleman. Because the photographs
have artistic value and/or simply document the children's daily
activities and development for purely private purposes and in a
way that is not lewd or lascivious or sexual, Defendants' conduct
was constitutionally protected under the First Amendment to the
United States Constitution and N.M. Const. art. II, ¤ 17.
In addition, because the sexual exploitation of children, criminal
sexual contact of a minor and child abuse statutes did not provide
fair notice that the photographs taken by an artist for serious
artistic purposes or taken by a parental figure for private family
purposes would constitute a crime, this prosecution violates due
process.
2. BACKGROUND.
1. Facts.
Mark Rendleman is a nationally known artist and art professor. He
graduated from the New Mexico Military Institute in Roswell, New
Mexico and received a B.A. in Art and Psychology from the University
of Washington in 1972, and a Master of Fine Arts degree in Painting
and Drawing from the University of California at Santa Barbara in
1974. His academic awards included a University of California Regent's
Fellowship, a NMMI Regent's Scholarship, the Lambda Rho Scholar
Award, the Award of Merit in Art, the Walter F. Isaac Memorial Scholarship,
the Bausch & Lomb Award for work on visual perception, the Gunther
Prize for a paper on visual illusions, the Student Rotarian of the
Year award, and the Outstanding Science Student Award. At NMMI,
he was named president of his junior and senior classes and president
of the local chapter of the National Honor Society.
Mr. Rendleman has been an assistant art professor at California
State University at San Diego and at Middlebury College in Vermont.
He was a teaching assistant in the art departments at the UCSB and
taught introductory classes in basic photography and painting at
the University of Washington. He has been a guest lecturer at the
University of Arizona, Texas Christian University, the University
of California, the University of Washington, Southwestern University
and Western Carolina University.
Mr. Rendleman grew up in an environment in which the human body
was considered a creation of and gift from God, and nudity was not
something to be ashamed of. In the 1940's and 1950's, Mr. Rendleman's
mother posed as a nude model for sculptors and photographers. Consistent
with that upbringing, Mr. Rendleman was for many years a practicing
nudist and he has incorporated that sensibility into his art work.
In 1981, Mr. Rendleman gave up his career as an art professor. He
moved back to New Mexico to care for his ailing parents, both of
whom passed away by 1993. Since moving back to New Mexico, his work
mostly has entailed his art project in Embudo, stock and bond trading
and real estate investment and development.
In the late 1980's, Mr. Rendleman bought land in Embudo and built
a house there. Adjacent to the house, which is built into the side
of a hill made of volcanic ash, Mr. Rendleman has constructed a
labyrinth of tunnels and rooms. This intricate and unique environmental
sculpture spans over an acre and is considered a living work of
art. It has been publically acclaimed. Many artists from around
the world have come to the caves to do murals, create sculptures,
and offer installations of various media. For many years, Mr. Rendleman
has also used the site to host annual benefits for various charities.
Mia Barbosa is Mr. Rendleman's daughter. Her mother is Liz Stewart.
Liz Stewart has two other children, Kelley Stewart and Kenny Stewart,
now 13 years and 14 years old respectively. Because Ms. Stewart
has had mental and emotional difficulties over the years, Ms. Barbosa
often has acted as the children's custodian and de facto parent.
At Ms. Stewart's request, in May of 1998, Ms. Barbosa moved the
children from California, where Ms. Stewart was residing, to Santa
Fe, where they have spent much of their time in the care of both
Ms. Barbosa and Mr. Rendleman, who cares for his 9 year old daughter,
Scarlet Rendleman.
Mr. Rendleman is an avid photographer and videographer/film maker.
He has shot hundreds of hours of videotape and film, and thousands
of photographs. Among those photographs are numerous photographs
of Scarlet, Kenny and Kelley. All photos were processed through
a commercial lab. Some of the photographs are pictures involving
poses with an artistic intent, while other photographs document
the daily lives of the children. A very small percentage of those
photographs include nudity. None of the photographs involve real
or simulated sexual activity or suggest sexual activity. None of
the pictures has ever been displayed publicly, and Mr. Rendleman
never intended to display the photographs publicly.
2. The Indictments.
The Indictment in Case No. D-0117-CR-99-842 charges Mr. Rendleman
with 18 counts of sexual exploitation of children contrary to NMSA
1978, ¤ 30-6A-3(B), 11 counts of criminal sexual contact
of a minor, contrary to NMSA 1978, ¤ 30-9-13A(1), and one
count of child abuse, contrary to NMSA 1978, ¤ 30-6-1(C).
The Indictment in Case No. D-0117-CR-99-843 charges Ms. Barbosa
with 8 counts of sexual exploitation of children, 11 counts of criminal
sexual contact of a minor, and one count of child abuse.
All of the charges relate to Defendants' conduct in taking photographs
of Scarlet, Kenny and Kelly.
1. Sexual Exploitation of Children.
Under NMSA 1978, ¤ 30-6A-3(B) (1993):
It is unlawful for any person to intentionally cause or permit
a child under eighteen years of age to engage in any prohibited
sexual act or simulation of such an act if that person knows, has
reason to know or intends that the act may be recorded in any visual
or print medium or performed publicly. Any person who violates this
subsection is guilty of a third degree felony, unless the child
is under the age of thirteen, in which event the person is guilty
of a second degree felony.
Under NMSA 1978, ¤ 30-6A-2 (1993):
A. "prohibited sexual act" means:
(1) sexual intercourse, including genital-genital, oral-genital,
anal-genital or oral-anal, whether between persons of the same or
opposite sex;
(2) bestiality;
(3) masturbation;
(4) sadomasochistic abuse for the purpose of sexual stimulation;
or
(5) lewd and sexually explicit exhibition with a focus on the genitals
or pubic area of any person for the purpose of sexual stimulation;
B. "visual or print medium" means:
(1) any film, photograph, negative, slide, computer diskette, videotape,
videodisc or any computer or electronically generated imagery; or
(2) any book, magazine or other form of publication or photographic
reproduction containing or incorporating any film, photograph, negative,
slide, computer diskette, videotape, videodisc or any computer generated
or electronically generated imagery;
C. "performed publicly" means performed in a place which
is open to or used by the public; and
D. "manufacture" means the production, processing, copying
by any means, printing, packaging or repackaging of any visual or
print medium depicting any prohibited sexual act or simulation of
such an act if one or more of the participants in that act is a
child under eighteen years of age.
2. Criminal Sexual Contact Of A Minor.
Under NMSA 1978, ¤ 30-9-13A:
Criminal sexual contact of a minor is the unlawful and intentional
touching or applying force to the intimate parts of a minor or the
unlawful and intentional causing a minor to touch one's intimate
parts. For the purposes of this section, "intimate parts"
means the primary genital area, groin, buttocks, anus or breast.
A. Criminal sexual contact of a minor in the third degree consists
of all criminal sexual contact of a minor perpetrated:
(1) on a child under thirteen years of age; or
(2) on a child thirteen to eighteen years of age when:
(a) the perpetrator is in a position of authority over the child
and uses this authority to coerce the child to submit;
(b) the perpetrator uses force or coercion which results in personal
injury to the child;
(c) the perpetrator uses force or coercion and is aided or abetted
by one or more persons; or
(d) the perpetrator is armed with a deadly weapon.
Whoever commits criminal sexual contact in the third degree is guilty
of a third degree felony.
To be "unlawful" within the meaning of ¤30-9-13,
the conduct must be done in a manner calculated to arouse or gratify
sexual desire, or otherwise intrude upon the bodily integrity or
personal safety of the victim. State v. Osborne, 111 N.M. 654, 661,
808 P.2d 624 (1991); State v. Pierce, 110 N.M. 76, 80, 792 P.2d
408, 412 (1990); Rule 14-132 NMRA 1999 (UNI).
3. Child Abuse.
Under NMSA 1978, ¤ 30-6-1(C):
Abuse of a child consists of a person knowingly, intentionally or
negligently, and without justifiable cause, causing or permitting
a child to be:
(1) placed in a situation that may endanger the child's life or
health;
(2) tortured, cruelly confined or cruelly punished; or
(3) exposed to the inclemency of the weather.
A first child abuse offense that does not result in the child's
death or great bodily harm is a third degree felony. Id.
III. ARGUMENT.
A. The Defendants' Conduct Constituted Speech And Expression Protected
Under The First Amendment To The United States Constitution.
Under the First Amendment to the United States Constitution, as
applied to the states through the Fourteenth Amendment, a State
"shall make no law abridging freedom of speech." The protection
of "speech" under the First Amendment includes visual
art and photography. See Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, 515 U.S. 557 (1995) ("the Constitution
looks beyond written or spoken words as mediums of expression");
Massachusetts v. Oakes, 491 U.S. 576, 591-92 (1989) ("Photography,
painting, and other two-dimensional forms of artistic reproduction
. . . are plainly expressive activities that ordinarily qualify
for First Amendment protection.") (Brennan, J., dissenting);
Bery v. City of New York, 97 F.3d 689, 695 (2d Cir. 1996) ("Visual
art is as wide ranging in its depiction of ideas, concepts and emotions
as any book, treatise, pamphlet or other writing, and is similarly
entitled to full First Amendment protection."), cert. denied,
___ U.S. ___, 117 S.C. 2408 (1997); Brooklyn Institute of Arts and
Sciences v. City of New York, 64 F.Supp.2d 184 (E.D.N.Y. 1999) (enjoining
city's withholding of funds from museum based on content of art
exhibit).
Serious artistic and/or literary expression receives full First
Amendment protection because our "cultural life," just
like our political system, "rests upon [the] ideal" that
"each person should decide for him or herself the ideas and
beliefs deserving of expression, consideration, and adherence."
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641 (1994).
See also Police Department of the City of Chicago v. Mosley, 408
U.S. 92, 95-96 (1972) ("To permit the continued building of
our politics and culture, and to assure self-fulfillment for each
individual, our people are guaranteed the right to express any thought,
free from government censorship.").
1. General Obscenity Standard.
The courts have made it abundantly clear that a depiction of nudity,
including child nudity, without more, constitutes protected expression.
New York v. Ferber, 458 U.S. 747, 765, n. 18 (1982) (citing Erznoznik
v. City of Jacksonville, 422 U.S. 205, 213 (1975)); Rhoden v. Morgan,
863 F.Supp. 612 (M.D. Tenn. 1994) ("Even depictions of nudity
involving a minor constitute protected expression absent a showing
that the depictions are 'in some significant way, erotic.'")
(quoting Erznoznik, 422 ;U.S. at 214 n. 10). In most circumstances,
a state may proscribe expression involving nudity only when it crosses
the line into obscenity. See generally Miller v. California, 413
U.S. 15 (1973). This narrowly limited exception to the right of
free speech derives from the fact that obscenity is not "[an]
essential part of any exposition of ideas, and [is] of such slight
social value as a step to truth that any benefit that may be derived
from [it] is clearly outweighed by the social interest in order
and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72
(1942). See also Roth v. United States, 354 U.S. 476, 485 (1957)
("rejection of obscenity as utterly without redeeming social
importance" is implicit in the history of the First Amendment).
Nonetheless, the courts have repeatedly expressed their concerns
about "the inherent dangers of undertaking to regulate any
form of expression." Miller, 413 U.S. at 23. See also Roth
v. United States, 354 U.S. 476, 488 (1957) ("Ceaseless vigilance
is the watchword to prevent . . . erosion [of First Amendment rights]
by Congress or by the States. The door barring federal and state
intrusion into this area cannot be left ajar; it must be kept tightly
closed and opened only the slightest crack necessary to prevent
encroachment upon more important interests."); Hannigan v.
Esquire, 327 U.S. 146, 157 (1946) ("Under our system of government
there is an accommodation for the widest varieties of tastes and
ideas."). Thus, the courts have sought "not only to assure
that statutes designed to regulate obscene materials sufficiently
defined what was prohibited, but also to devise substantive limits
on what fell within the permissible scope of regulation." Ferber,
458 U.S. at 755. In Miller, the court said that a "state offense
[involving obscenity] must . . . be limited to works which, taken
as a whole, appeal to the prurient interest in sex, which portray
sexual conduct in a patently offensive way, and which, taken as
a whole, do not have serious literary, artistic, political, or scientific
value." Id., 413 U.S. at 24.
In Jenkins v. Georgia, 418 U.S. 153 (1974). the Supreme Court reversed
a conviction of the manager of a theater for showing the film "Canal
Knowledge," which the jury deemed to be obscene. In finding
that there was nothing patently offensive about the film, the court
rejected the state's argument that the trial jury's determination
of the issue was conclusive. As the court said:
Even though questions of appeal to the "prurient interest"
or of "patent offensiveness" are "essentially questions
of fact," it would be a serious misreading of Miller to conclude
that juries have unbridled discretion in determining what is "patently
offensive."
Id., 418 U.S. at 160.
See also City of St. George v. Turner, 813 P.2d 1188, 1191 (Utah
Ct.App. 1991) (citing Jenkins and holding that in criminal obscenity
trials, trial court "has the responsibility to make a threshold
determination" of obscenity before turning case over to jury),
aff'd, 860 P.2d 929 (Utah 1993); Davis v. Texas, 658 S.W.2d 572,
581 (Tex. Crim. App. 1983) (en banc) ("[I]t is now incumbent
upon the trial court and, if conviction and appeal, the appellate
court, to make the independent determination of whether material
that is alleged to be obscene is factually and constitutionally
obscene, if issue is made in the trial or appellate court whether
the material is obscene, either constitutionally or factually);
Roth, 354 U.S. at 497-98 (Harlan, J. concurring) ("[T]he question
of whether a particular work is of that character [i.e., obscene]
involves not really an issue of fact but a question of constitutional
judgment of the most sensitive and delicate kind."); Jocbellis
v. Ohio, 378 U.S. 184, 188 (1964) (holding that the question of
whether a particular work is obscene "necessarily implicates
an issue of constitutional law"); Bose Corp v. Consumers Union
of United States, Inc., 466 U.S. 485, 504-05 (1984) (stating, in
defamation case, that First Amendment "imposes a special responsibility
on judges" whenever it is claimed that a particular communication
falls within a category of unprotected speech); Zeitlin v. Arnebergh,
383 P.2d 152 (Cal. 1963) (en banc) (applying independent review
to find Henry Miller's Tropic of Cancer not obscene as a matter
of law); Attorney General v. Book Named "Tropic of Cancer",
184 N.E.2d 328 (Mass. 1962) (same); United States v. One Book Called
"Ulysses", 5 F.Supp. 182 (S.D.N.Y. 1933) (judicial determination
that James Joyce's Ulysses not obscene as a matter of law), aff'd,
72 F.2d 705 (2d Cir. 1934); People v. Lamborn, 708 N.E.2 350 (Ill.
1999) (sufficiency of evidence aside, court must view photographs
themselves to determine whether they are lewd under child pornography
statute).
As Jenkins and its progeny demonstrate, the Court must decide in
the first instance whether the material has serious artistic, literary,
political or scientific value and could conceivably be determined
to be patently offensive or of prurient interest according to community
standards.
2. Child Pornography Standard.
In Ferber, and then in Osborne v. Ohio, 495 U.S. 103 (1990), the
court confirmed that depictions of nude children, without more,
are constitutionally protected. Ferber, 458 U.S. at 764; Osborne,
495 U.S. at 112. The Ferber court relaxed the obscenity standard
as it applies to depictions of children, holding that "the
States are entitled to greater leeway in the regulation of pornographic
depictions of children." Id., 458 U.S. at 756. However, the
court warned that "[l]ike obscenity statutes, laws directed
at the dissemination of child pornography run the risk of suppressing
protected expression by allowing the hand of the censor to become
unduly heavy." Id. Thus, the court said that offenses involving
child pornography must be "limited to works that visually depict
sexual conduct by children below a specified age" and that
"[t]he category of 'sexual conduct' proscribed must also be
suitably limited and described." Id., 458 U.S. at 764. The
court also retained constitutional protection for nude depictions
of any sort that have serious literary, artistic, political, or
scientific value. Id. See also Edward de Grazia, Girls Lean Back
Everywhere 653n (1992) ("[T]he [Ferber] Court expressly said
that the first two prongs [of the Miller obscenity standard] would
not apply, but implied that the third prong [absence of serious
literary, artistic, political or scientific value] would.").
In Ferber, the court considered a New York statute that prohibited
depictions of children engaged in "actual or simulated sexual
intercourse, deviate sexual intercourse, sexual bestiality, masturbation,
sado-masochistic abuse, or lewd exhibition of the genitals."
The court held that the statute was constitutional because "[t]he
forbidden acts to be depicted . . . represent the kind of conduct
that, if it were the theme of a work, could render it legally obscene."
Id.
Here, while some of Mr. Rendleman's photographs include depictions
of nudity, the photographs do not depict conduct that could render
the pictures obscene. The photographs do not include the kind of
lewd exhibition of the genitals that would remove the pictures from
constitutional protection. See Lamborn, 708 N.E.2d at 354 (defining
"lewd" as "[o]bscene, lustful, indecent, lascivious,
[or] lecherous"); Black's Law Dictionary (5th ed.) at 817 (defining
"lewd" as "[o]bscene, lustful, indecent, lascivious,
lecherous" and involving "a lascivious intent").
That is, the photographs do not involve a graphic focus on the genitals
which suggests sexual activity or an intent to produce sexual stimulation
or gratification. Rather, the nudity included in the photographs
suggests themes such as primitivism and childish playfulness, and
the photographs have serious artistic value. Others simply reflect
a parental figure documenting the activities and development of
a child. See People v. Lewis, 712 N.E.2d 401, 410 (Ill.App.) (photograph
displaying genitals of child is not lewd if it "merely capture[s]
an uninhibited moment of adolescent spontaneity") (citations
and internal quotation marks omitted), appeal denied, 185 Ill.2d
649, ___ N.E.2d ___ (1999).
In this regard, Lewis court's finding that the photograph at issue
in that case was not lewd is instructive. After laying out a six-part
test1, the court said:
Regarding the first factor, the focal point of the photo is not
the child's genitals. The photo depicts J.T.'s entire body, with
the exception of her lower legs. Regarding factor two, although
the setting is a bedroom, this fact is not used to suggest sexual
activity. A made-up bed appears in the background without any indication
that the bed has any sexual meaning in the photo. Regarding the
third factor, J.T.'s pose is not suggestive or unnatural. She stands
with her arms at her side and her head straight ahead, slightly
down. The fourth factor is the only one that weighs in favor of
lewdness. There is nothing in the photo that suggests sexual coyness
or a willingness to engage in sexual activity. The child appears
uncomfortable and embarrassed. Further, the photo does not appear
to be designed to elicit a sexual response in an objective viewer.
Although the photo depicts a naked child standing in a bedroom,
she is not posed in a sexual manner, she is not wearing inappropriate
attire, and the expression on her face is not sexual, inviting,
or coy in any way. Thus, . . ., we determine that the photo is not
lewd.
Id., 712 N.E.2d at 410-11.
Because the photographs here are not lewd and sexually explicit,
they constitute expression protected by the First Amendment. Therefore,
Mr. Rendleman and Ms. Barbosa cannot be prosecuted under ¤¤
30-6A-3(B), 30-9-13A(1) or 30-6-1(C) for their role in producing
the photographs, and the Court should dismiss the Indictments.
B. The Defendants' Conduct Constituted Speech and Expression Protected
Under Article II, ¤17 Of The New Mexico Constitution.
Under N.M. Const. art. II, ¤17, "Every person may freely
speak, write and publish his sentiments on all subjects, being responsible
for the abuse of that right; and no law shall be passed to restrain
or abridge the liberty of speech or of the press." "By
its terms, Article II, Section 17 protects the right of each person
to disseminate his or her ideas on any number of subjects and prohibits
legislation that restricts the right of free speech." Twohig
v. Blackmer, 1996-NMSC-023, ¦12, 121 N.M. 746, 918 P.2d 332.
An "abuse" of free speech occurs only when the community
cannot tolerate the matter. City of Farmington v. Fawcett, 114 N.M.
537, 546, 843 P.2d 839 (Ct. App. 1992).
As the New Mexico Supreme Court said in Fawcett, "The purpose
of free speech and press is to preserve 'the independence of public
discourse so that a democratic will within a culturally heterogeneous
state can emerge under conditions of neutrality, and so that individuals
can use the medium of public discourse to persuade others to experiment
in new forms of community life.'" Id. (quoting Robert C. Post,
"The Constitutional Concept of Public Discourse: Outrageous
Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell,"
103 Harv. L. Rev. 601, 684 (1990)). In distinguishing the speech
protection under the federal and state constitutions, the court
noted that the state constitution
does not merely vouchsafe protection to the expression of ideas
of value, but to "sentiments on any subject." The word
"sentiments," comporting elements of emotion and feeling,
may, by itself, be broader than "ideas." More important,
no subject is unprotected. [The State Constitution] extends at least
the protection of constitutional-level scrutiny to the expression
of sentiments on any subject, whether it be hostile and vulgar .
. . or sexually explicit . . . . None should be deemed wholly without
protection and . . . that protection only recedes so far as to permit
holding the citizen "responsible for the abuse of this liberty."
Id., 114 N.M. at 545-46.
While acknowledging that obscenity can constitute an abuse of free
speech falling outside of the protections of Article II, ¤17,
the Fawcett court rejected the "community acceptance"
standard applied under the federal constitution and reversed a conviction
based on that standard. As the court said, the federal standard
may allow the jury to convict a defendant "for speech which
was merely 'unacceptable' or beyond 'decency.'" Id., 114 N.M.
at 546. However,
"Acceptance" is really the lowest common denominator,
and may well limit dialogue on significant public issues beyond
obscenity. . . . "Decency" implies what is "proper."
. . . The community, or indeed the average person, may well find
some speech "unacceptable" or not "decent" which
is nonetheless constitutionally permissible.
Id.
Therefore, the court said:
Rather than allowing the fact finder to determine that material
is an abuse of the grant of free speech under Article II, Section
17, based on the "acceptance" of the community, we believe
more is required. We believe our constitution requires that, although
the community might not find the materials "acceptable,"
it must find them "intolerable" before they may be deemed
as an "abuse" of the right to freely speak, write, and
publish sentiments on all subjects.
Id.
Because the New Mexico Constitution offers greater speech protection
than the federal constitution, the New Mexico courts should apply
greater scrutiny to, and a more limited interpretation of, statutes
aimed a child pornography than the federal courts apply under the
relaxed obscenity standard articulated in Ferber and Osborne. In
fact, there is no authority that anything less than obscenity as
defined under New Mexico law may be proscribed, regardless of whether
the expression involves depictions of children.
Because the photographs have serious artistic value and no reasonable
finder of fact could conclude that Mr. Rendleman's photographs meet
the obscenity standard, the court should dismiss the Indictments.
C. The State Lacks A Legitimate Interest In Proscribing Defendants'
Conduct.
While recognizing the authority of a State to ban distribution
of obscene materials, the U.S. Supreme Court in Stanley v. Georgia,
394 U.S. 557 (1969), held that the First Amendment prohibits a State
from making mere private possession of obscene material a crime.
The Stanley court noted that "mere possession of printed or
filmed matter in the privacy of a person's own home" involved
an element of constitutionally protected privacy. Id., 394 U.S.
at 564. As the court said, "Whatever the power of the state
to control public dissemination of ideas inimical to the public
morality, it cannot constitutionally premise legislation on the
desirability of controlling a person's private thoughts." Id.,
394 U.S. at 566.
As with the obscenity standard, the federal courts have given the
states greater latitude with respect to pornographic depictions
of children. In Osborne, the court held that a State may criminalize
mere possession of child pornography. The court said that such prohibitions
are justified by the State's compelling interest in protecting the
physical and psychological well-being of minors and in destroying
the market for the exploitive use of children by penalizing those
who possess and view the offending materials. Id., 495 U.S. at 108-11.
Significantly, the court noted the limiting construction the Ohio
Supreme Court had given the statute at issue, requiring that the
depiction involve lewd exhibition or graphic focus on the genitals
of a person who is neither the child nor the ward of the person
charged. Id., 495 U.S. at 112-114 & n. 9. "By limiting
the statute's operation in this manner, the Ohio Supreme Court avoided
penalizing persons for viewing or possessing innocuous photographs
of naked children." Id., 495 U.S. at 114.2
Where, as here, photographs are taken by a parent or one standing
in loco parentis and are not distributed or intended to be distributed
publicly, the state has no interest in prohibiting that conduct.
Therefore, the conduct is protected under the First and Fourteenth
Amendments.
D. The Statutes Are Unconstitutionally Vague As Applied To The Defendant's
Conduct.
A statute violates the Fourteenth Amendment due process requirement
if it is so vague that persons of common intelligence must necessarily
guess at its meaning. State v. Andazola, 95 N.M. 430, 431, 622 P.2d
1050 (Ct.App. 1981); State v. Najera, 89 N.M. 522, 554 P.2d 983
(Ct. App. 1976). The vagueness doctrine "incorporates notions
of fair notice or warning." Smith v. Goguen, 415 U.S. 566,
572 (1974). As the court said in Gayned v. City of Rockford, 408
U.S. 104 (1972):
[B]ecause we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly,. Vague laws may trap the innocent
by not providing fair warning.
Id., 408 U.S. at 109-09.
In Krukowski v. Swords, 15 F.Supp.2d 188 (D. Conn. 1998), the court
held that a Connecticut statute prohibiting conduct constituting
a risk of injury to minors was unconstitutionally vague as applied
to the plaintiff's conduct, which involved photo sessions with minor
models who posed nude with the permission of their parents. Criminal
charges had been brought against the plaintiff and then dismissed,
and the court issued an injunction prohibiting the state from prosecuting
the plaintiff for similar conduct.
The Krukowski court found that neither the text of the statute
nor any judicial gloss applied to that text provided fair notice
that his actions were prohibited. Id., 15 F.Supp.2d at 202-03. The
court noted that there was no per se rule that photographing naked
or partially naked children violated the statute. Id., 15 F.Supp.2d
at 203. The court then distinguished reported cases where prosecutions
were permitted, including (i) a case where a junior high school
teacher took nude and semi-nude photographs of the victim after
promising to give her a passing grade in his science class and on
one occasion touched the private parts of the victim, (ii) a case
where photographs depicted naked boys and girls in sexually explicit
poses and positions, (iii) a case where the defendant took photographs
of a 13-year old boy in a state of sexual arousal, made sexually
suggestive comments to the boy and attempted to sexually assault
him, and (iv) a case where the defendant took photographs of minors
in provocative poses in various stages of undress. Id.
Looking at this history the court said:
Each of these cases is distinguishable from the present case in
ways the court finds significant. In particular, each involved convictions
for the creation of child pornography . . . and/or for sexually
explicit physical conduct by the accused . . . . Neither of these
characterizations apply to Krukowski's conduct or words with respect
to Deane. Moreover, unlike the instant case, none of these earlier
applications . . . involved the consent of the victim and a parent.
Indeed, [two of the prior cases] involved courses of conduct by
the accused that may be described as threatening or coercive to
the victim. . . . Finally, none of these cases involved activity
by the accused that could even remotely be considered legitimate.
On the other hand, engaging in non-pornographic fashion modeling
sessions may reasonably be considered a legitimate activity.
Id., 15 F.Supp.2d at 203-04.
The court then noted that the plaintiff had submitted evidence
that "the types of visual images created in his modeling sessions
were not unprecedented in the realm of mass market advertising,
entertainment and other artistic endeavor." Id., 15 F.Supp.2d
at 204. As the court said, "[T]he presence and apparent acceptance
of such material in his community could affect a modeling agent's
view as to the acceptable and legitimate limits of his business."
Id.
A quite similar situation exists here. While the New Mexico statutes
at issue here are more specific than the Connecticut statute, their
text, interpretation and enforcement did not provide fair notice
to Mr. Rendleman and Ms. Barbosa that Mr. Rendleman's photographs
would subject them to criminal liability. First, most of the photographs
involving nudity are quite similar to photographs of minors that
have been published in books by art photographers and can be found
in bookstores in Santa Fe and elsewhere. Second, the photographs
do not involve real, simulated or suggested sexual activity or evidence
an intent to produce sexual stimulation, and the Defendants never
coerced or even suggested that the children engage in any kind of
sexual activity. Third, Mr. Rendleman was photographing his daughter
and two children with whom he had a de facto parental relationship
and whose custodian (Ms. Barbosa) and, in some cases, Ms. Stewart,
had consented to the photographs being taken. Liz Stewart had maintained
copies of some of the photos in her family for years, Fourth, the
photographs have never been displayed publicly, and neither Mr.
Rendleman nor Ms. Barbosa intended to display the photographs publicly.
Fifth, the photographs were part of a legitimate artistic endeavor
and an effort by a parental figure to document the activity and
development of his children.
No reported case or known prosecution has included a situation
even remotely similar to this. Because the Defendants had a reasonable
belief that there conduct was legal and the statutes at issue do
not provide fair notice that their conduct was illegal, the statutes
are unconstitutionally vague as applied to their conduct and their
prosecution violates due process.
IV. CONCLUSION.
For the foregoing reasons, the Court should conduct an evidentiary
hearing, grant the motion and dismiss the Indictment.
Respectfully submitted,
ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, CRON & SCHOENBURG, LLP
By:_______________________________
Dan Cron
Post Office Box 8180
500 Montezuma Avenue, Suite 101
Santa Fe, New Mexico 87504-8180
(505) 988-8004
Attorneys for Defendant Mark Rendleman
THE MARLOWE LAW FIRM, P.C.
By:_______________________________
Dan Marlowe
P.O. Box 8207
Santa Fe, New Mexico 87504
(505) 988-1144
Attorney for Tiffany Mia Barbosa
CERTIFICATE OF SERVICE
I certify that I served a copy of the foregoing Motion to Dismiss
Based on First and Fourteenth Amendments and N.M. Const. Art II,
Section 17 to Maria Sanchez-Gagne, Assistant District Attorney,
District Attorney's Office, 327 Sandoval, Santa Fe, New Mexico 87501
on the 12th day of January, 2000 by hand-delivery.
_____________________________________
ROTHSTEIN, DONATELLI, HUGHES
DAHLSTROM, CRON & SCHOENBURG, LLP
S:005.00to Dismiss (RA).wpd
0.
1The same six-part test has been adopted by the federal courts in
determining what constitutes a "lascivious exhibition of the
genitals or pubic area" for purposes of 18 U.S.C. ¤
2256(2)(E), the federal child pornography statute. See U.S. v. Wolf,
890 F.2d 241, 244 (10th Cir. 1989); U.S. v. Dost, 636 F.Supp. 828,
831 (S.D.Cal. 1986), aff'd sub nom. U.S. v. Wiegand, 812 F.2d 1239
(9th Cir.), cert. denied, 484 U.S. 856 (1987); U.S. v. Villard,
885 F.2d 117, 122 (3d Cir. 1989); U.S. v. Mr. A., 756 F.Supp. 326,
328 (E.D. Mich. 1991).
2Among the constitutionally protected acts the court mentioned was
"a parent [giving] a family friend a picture of the parent's
infant taken while the infant was unclothed." Id., 495 U.S.
at 112 n. 9.
3
FIRST JUDICIAL DISTRICT
COUNTY OF RIO ARRIBA
STATE OF NEW MEXICO
No. D-0117-CR-99-842
No. D-0117-CR-99-843
STATE OF NEW MEXICO,
Plaintiff,
vs.
MARK RENDLEMAN and
TIFFANY MIA BARBOSA,
Defendants.
REPLY IN SUPPORT OF MOTION TO DISMISS
BASED ON FIRST AND FOURTEENTH AMENDMENTS
AND N.M. CONST. ART. II, SECTION 17
Defendants Mark Rendleman (Mr. Rendleman) and Tiffany Mia Barbosa
(Ms. Barbosa) submit this reply in support of their motion to dismiss
the Indictments. The Defendants filed a motion and supporting memorandum.
A similar motion was filed in the Santa Fe County case, which names
only Mr. Rendleman. The State filed a response in the Santa Fe County
case, but did not file a response in these cases. This Reply addresses
to the arguments made by the State in the response filed in the
Santa Fe case.
1. THE STATE HAS MISCHARACTERIZED THE PHOTOGRAPHS.
1.
In its response to the motion to dismiss, the State says that Mr.
Rendleman's photographs of Scarlet Rendleman are not protected speech
because they include lewd exhibitions in which Scarlet's genitalia
is "the main focus of the photographs" and because "[t]he
obvious purpose of the photographs as to attract notice specifically
to the genitalia and pubic area." The State has sought to create
this erroneous impression by singling out photographs in which Scarlet's
genitalia is clearly visible, while ignoring many photographs in
the same series in which her genitalia is less visible or not visible
at all.
However, even an examination of only the photographs singled out
by the State shows that Scarlet's genitalia is not the main focus.
Rather, the main focus of the photographs of Scarlet is the playful
activity of the child. Indeed, there is nothing unusual or sexual
about the bedroom setting, the behavior depicted, or the framing
or focus of the photographs. Countless similar photographs are taken
by parents of their children every day.
The lack of any focus on genitalia is even more pronounced in the
photographs that include Kelley Stewart and Kenny Stewart. These
photographs clearly were intended to suggest, in an artistic fashion,
a theme of primitiveness and are completely devoid of any kind of
sexual activity or suggestion of sexual activity or lasciviousness.
In essence, the State is saying that the photographs focus on genitalia
simply because the children are naked, but the courts have made
it clear that nudity in and of itself does not remove constitutional
protection, even where a child is involved. New York v. Ferber,
458 U.S. 747, 765, n. 18 (1982) (citing Erznoznik v. City of Jacksonville,
422 U.S. 205, 213 (1975)); Rhoden v. Morgan, 863 F.Supp. 612, 621
(M.D. Tenn. 1994) (in overturning child pornography conviction on
petition for writ of habeas corpus, court said, "Even depictions
of nudity involving a minor constitute protected expression absent
a showing that the depictions are 'in some significant way, erotic.'")
(quoting Erznoznik, 422 U.S. at 214 n. 10), aff'd, 97 F.3d 1452
(6th Cir. 1996)1, cert. denied, 520 U.S. 1176 (1997); People v.
Lewis, 712 N.E.2d 401, 410 (Ill.App.) (photograph displaying genitals
of child is not lewd if it "merely capture[s] an uninhibited
moment of adolescent spontaneity") (citations and internal
quotation marks omitted), appeal denied, 720 N.E.2d 1100 (Ill. 1999);
United States v. McKelvey, 203 F.3d 66, 69 n. 3 (1st Cir. 2000)
(photographs of young boys skinnydipping fell short of legal definition
of child pornography, and were squarely within protection of First
Amendment).
Because the photographs do not involve lewdness as a matter of law,
the Court should find that the Defendants' conduct was constitutionally
protected and should dismiss the Indictments.
2. THE STATE HAS PROVIDED NO AUTHORITY FOR APPLYING THE FERBER STANDARD
UNDER THE STATE CONSTITUTION.
1.
In his opening brief, Mr. Rendleman pointed out that the New Mexico
courts have never interpreted the speech protection in N.M. Const.
art. II, ¤ 17 as including the lower, federal Ferber standard
for nude depictions of children, which allows restrictions on speech
not rising to the level of obscenity where lewd depictions of children
are involved. Indeed, because the New Mexico courts have rejected
the general federal obscenity standard, see City of Farmington v.
Fawcett, 114 N.M. 537, 546, 843 P.2d 839 (Ct. App.), cert. quashed,
114 N.M. 532, 843 P.2d 375 (1992); Linda M. Vanzi, Note, "The
Expansion of the Obscenity Doctrine in New Mexico; Is It Tolerable?"
24 N.M. L. Rev. 505, 515 (Summer 1994) ("Because the court
has broadened the Supreme Court's standard governing the protection
of freedom of expression, it is difficult to imagine that any material
will be considered obscene under the new standard."), Mr. Rendleman
argued that the New Mexico courts are unlikely to adopt the federal
child pornography standard. The State's response provides no authority
for applying the Ferber standard under the New Mexico Constitution,
and has not argued that Mr. Rendleman's photographs meet the general
federal obscenity standard or the "intolerability" standard
enunciated by the New Mexico Court of Appeals in Fawcett.
Therefore, the Court should require that the State show that the
photographs constitute "intolerable" speech, as defined
in Fawcett, rising at least to the level of obscenity, as defined
in federal law, see Miller v. California, 413 U.S. 15 (1973) (works
which, taken as a whole, appeal to the prurient interest in sex,
which portray sexual conduct in a patently offensive way, and which,
taken as a whole, do not have serious literary, artistic, political,
or scientific value). Because the photographs, taken as a whole,
do not portray sexual conduct, do not appeal to the prurient interest
in sex and have serious artistic value, and because no reasonable
jury could conclude that the photographs constitute "intolerable"
speech as defined in Fawcett, the Court should find that they are
protected under Article II, ¤ 17 of the New Mexico Constitution.
3. THE STATE HAS NOT DEMONSTRATED A LEGITIMATE INTEREST IN PUNISHING
A PARENT FOR TAKING PHOTOGRAPHS THAT ARE NOT INTENDED TO BE DISTRIBUTED.
The State notes that child pornography lies outside the constitutional
protection for possession (as opposed to distribution) of obscene
materials. See Osborne v. Ohio, 495 U.S. 103 (1990). This was acknowledged
in the Defendants' opening brief. However, the State ignores a key
part of the Osborne rationale.
The Osborne court said the State of Ohio had a compelling interest
in prohibiting possession of child pornography in order to protect
the physical and psychological well-being of minors and to destroy
the market for the exploitive use of children. Id., 495 U.S. at
108-11. Significantly, the court noted that the Ohio Supreme Court
had limited the construction of the Ohio child pornography statute,
requiring that the depiction involve lewd exhibition or graphic
focus on the genitals of a person who is neither the child nor the
ward of the person charged. Id., 495 U.S. at 112-114 & n. 9.
"By limiting the statute's operation in this manner, the Ohio
Supreme Court avoided penalizing persons for viewing or possessing
innocuous photographs of naked children." Id., 495 U.S. at
114.2 The Osborne court's rationale (and the statutory construction
adopted by the Ohio Supreme Court) suggests that constitutional
protection would extend to a parent's conduct in taking or possessing
photographs of his or her child, regardless of whether the child
is lewdly displaying his or her genitals.
Here, the State has not suggested that there is any evidence that
Mr. Rendleman or Ms. Barbosa distributed or intended to distribute
the photographs. There is no such evidence.3 Because a child's nude
exposure to a parent does not present the same risk of physical
or emotional abuse as where a non-parent is involved and there is
no market for the photographs if they are not intended to be distributed,
the compelling interests found in Osborne do not exist here.
Therefore, the Court should hold that Mr. Rendleman's status as
a parent, Ms. Barbosa's status as someone standing in loco parentis
and the lack of any evidence regarding an intent to distribute the
photographs deprives the State of any compelling interest in penalizing
Mr. Rendleman or Ms. Barbosa for their roles in taking the photographs,
regardless of whether the photographs include lewd exhibition of
the genitals. In the absence of such a compelling interest, the
Court should find that the Defendants' conduct was constitutionally
protected.
Respectfully submitted,
DAN CRON LAW FIRM, P.C.
By:_______________________________
Dan Cron
Wells Fargo Plaza
125 Lincoln Avenue, Suite 400
P.O. Box 40
Santa Fe, NM 87504-004
(505) 986-1334
Attorney for Mark Rendleman
THE MARLOWE LAW FIRM, P.C.
By:_______________________________
Dan Marlowe
P.O. Box 8207
Santa Fe, New Mexico 87504
(505) 988-1144
Attorney for Defendant Tiffany Mia Barbosa
Certificate of Service
I certify that I served a copy of the foregoing Defendant's Motion
For Consolidation to Maria Sanchez-Gagne, Assistant District Attorney,
Post Office Box 2041, Santa Fe, New Mexico 87504 on the ____ day
of July, 2000 by first class U.S. Mail, postage prepaid.
_____________________________________
DAN CRON LAW FIRM, P.C.
C:\Shared\dan\271.0000\Pleading\Reply re Motion to Dismiss (RA).wpd
1This appeal was brought by the habeas petitioner with respect to
the trial court's denial of other requested relief. The state did
not appeal from the trial court's overturning of the child pornography
conviction.
2Among the constitutionally protected acts the court mentioned was
"a parent [giving] a family friend a picture of the parent's
infant taken while the infant was unclothed." Id., 495 U.S.
at 112 n. 9.
3The existence of the photographs came to light when Elizabeth Stewart,
broke into Mr. Rendleman's Santa Fe studio, stole photographs and
videotapes and turned those items over to the police in an effort
to have Mr. Rendleman prosecuted. Subsequently, the police obtained
a warrant and seized photographs and videotapes from Mr. Rendleman's
studios in Santa Fe and Embudo.
6
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