'Nudity is not pornography': Fall River police officer asks court to toss child porn case

FALL RIVER — A Fall River police officer facing one count of possessing child pornography, a partially nude photo his 17-year-old girlfriend sent him, is seeking to dismiss the criminal case against him.

Defense attorney Rene Brown indicated to the judge that Michael Morin, 38, was in the courthouse, but he did not appear in the courtroom during a pre-trial hearing on Tuesday.

Brown asked Fall River Judge Cynthia M. Brackett to schedule a motion to dismiss hearing, which she scheduled for Aug. 24.

“This is a case of selective prosecution and an arbitrary enforcement of the statute,” said Brown in the brief hearing. “The young lady sent a picture of her breasts to my client, and they charge him with possession, and they have yet to charge this young lady with dissemination.”

Bristol County District Attorney spokesman Gregg Milotte said his office would not comment on a pending case and the defense has not filed a motion to dismiss at this time.

During his arraignment in June, a judge denied a request by the Bristol County District Attorney's Office that he not have contact with the 17-year-old woman.

Brackett also denied the teenager's father a restraining order against Morin, after their relationship was discovered by police.

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Defense attorney cites conflicting state statutes

Morin was arraigned in Fall River District Court on June 30 for the pornography possession charge, but not for having sexual relations with the 17-year-old woman, because the age of consent in Massachusetts is 16.

However, it is against the law to possess pornographic images of a person younger than 18.

Morin’s arrest report was impounded by a judge, but information from court proceedings indicate that Morin and the 17-year-old woman had been confronted by a neighbor when the off-duty police officer drove the girl home but parked in a neighbor's driveway.

There was a confrontation with someone who lived in the home, and Fall River police were called; it is not clear if Morin or the resident contacted the police. The resident was arrested and charged with a crime related to the incident.

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Apparently, the police began an investigation into Morin’s relationship with the teen and would find the photo of the 17-year-old in his phone.

Brown said she’ll argue at the motion to dismiss hearing that, in addition to selective prosecution, some of Morin’s civil rights were violated.

“And that nudity is not pornography,” said Brown.

What constitutes child pornography, and has enforcement changed in the past?

The two statutes that outline age of consent and what constitutes possession of child pornography “definitely conflict.”

The authors of the possession of child pornography statute wrote in their criteria that to be considered illegal, the images must be considered “lewd and lascivious.”

“Apparently it was a selfie from her phone to his,” said Brown.

“Let’s say he is convicted; boy, it's going to be a great case to take up on appeal to challenge that child pornography statute,” said Brown.

The Massachusetts Supreme Judicial Court has overturned possession of child pornography convictions in the past.

In the early 2000, the SJC overturned the conviction of a 40-year-old photography student who had taken photographs of a 15-year-old girl with her breasts exposed.

The judges ruled that the photographer “had no lascivious intent” and the pictures were “neither obscene nor pornographic.” 

This article originally appeared on The Herald News: Fall River police officer with nude teen pic asks to dismiss porn case