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SJC-11480

COMMONWEALTH vs. JOHN REX.

Norfolk. March 3, 2014. - July 9, 2014.

Present: Ireland, C.J., Spina, Cordy, Gants, Duffly, & Lenk, 

JJ.

Obscenity, Child pornography. Habitual Offender. Practice, 

Criminal, Dismissal, Grand jury proceedings. Grand Jury. 

Lewdness. Probable Cause. Constitutional Law, Freedom of 

speech and press. Evidence, Photograph.

Indictments found and returned in the Superior Court 

Department on January 18, 2012.

A motion to dismiss was heard by Mitchell H. Kaplan, J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Varsha Kukafka, Assistant District Attorney (Anne Yas, 

Assistant District Attorney, with her) for the Commonwealth.

Bruce W. Carroll for the defendant.

Carlo Obligato, Committee for Public Counsel Services, for 

Committee for Public Counsel Services, amicus curiae, submitted 

a brief.

SPINA, J. A Norfolk County grand jury indicted the 

defendant, John Rex, on seven counts of possession of child 
2

pornography, G. L. c. 272, § 29C, and seven counts of being a 

habitual offender, G. L. c. 279, § 25.1 Relying on Commonwealth

v. McCarthy, 385 Mass. 160 (1982), the defendant filed a motion 

to dismiss the indictments, which the Commonwealth opposed. He 

claimed that the seven photocopies of photographs of naked 

children (excerpted from a National Geographic magazine, a 

sociology textbook, and a naturist catalogue) on which the 

indictments were based did not constitute child pornography 

within the meaning of G. L. c. 272, § 29C, and were protected by 

his right to free speech under the First Amendment to the United 

States Constitution and art. 16 of the Massachusetts Declaration 

of Rights. Following a hearing, a judge in the Superior Court 

allowed the motion to dismiss, concluding that none of the 

photocopies constituted a "lewd exhibition" of the children's 

body parts as described in G. L. c. 272, § 29C (vii). The 

Commonwealth filed an appeal pursuant to G. L. c. 278, § 28E, 

and Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501 

(1996). The case was entered in the Appeals Court, and we 

1 Lieutenant Patrick Barrett of the Department of Correction 

testified before the grand jury regarding the defendant's status 

as a habitual offender. He stated that the defendant's criminal 

record reflected the following convictions, all of which 

resulted in State prison sentences: rape of a child, for which 

the defendant received a sentence of from sixteen to twenty 

years; dissemination of matter harmful to minors (five counts), 

for which the defendant received a sentence of from four to five 

years on each count; malicious explosion, for which the 

defendant received a sentence of from eight to ten years; and 

attempt to commit a crime, for which the defendant received a 

sentence of from four to five years.

 
3

transferred it to this court on our own motion. At issue is 

whether the judge properly dismissed the indictments on the 

ground that the grand jury were not presented with any evidence 

to support a finding of probable cause to arrest the defendant 

for possession of child pornography. Because we conclude that 

the photocopies did not depict a "lewd exhibition" as set forth 

in G. L. c. 272, § 29C (vii), we affirm the order of the 

Superior Court.2

1. Statutory framework. General Laws c. 272, § 29C, 

provides, in relevant part:

"Whoever knowingly purchases or possesses a . . . 

photograph or other similar visual reproduction . . . of 

any child whom the person knows or reasonably should know 

to be under the age of [eighteen] years of age and such 

child is . . . (vii) depicted or portrayed in any pose, 

posture or setting involving a lewd exhibition of the 

unclothed genitals, pubic area, buttocks or, if such person 

is female, a fully or partially developed breast of the 

child; with knowledge of the nature or content thereof 

shall be punished . . ." (emphasis added).3

The Legislature's purpose in enacting this statute was to 

protect children from sexual exploitation.4

 See St. 1997, 

2 We acknowledge the amicus brief filed in support of the 

defendant by the Committee for Public Counsel Services.

3 General Laws c. 272, § 29C, also prohibits the knowing 

purchase or possession of visual materials in which a child 

under eighteen years of age is depicted in six other categories 

of sexual conduct. See G. L. c. 272, § 29C (i)-(vi). The 

parties agree that only § 29C (vii) is relevant to the 

photocopies at issue in this case.

4 The Legislature articulated the reasons underlying the 

enactment of G. L. c. 272, § 29C, when it stated: "The general 

 
4

c. 181, § 1. The focus of G. L. c. 272, § 29C, is the knowing 

purchase or possession of child pornography, not its 

dissemination. Contrast G. L. c. 272, § 29B (statute

criminalizing dissemination of visual material of child in state 

of nudity or sexual conduct).

2. Factual background. The facts are drawn from the 

evidence presented to the grand jury. The defendant is an 

inmate at the Massachusetts Correctional Institution at Norfolk. 

On August 31, 2011, correction officers conducted a search of 

the defendant's cell, which he shared with another inmate. In a 

padlocked footlocker assigned to the defendant, the officers 

found an envelope containing seven photocopies of photographs 

court hereby finds: (1) that the sexual exploitation of 

children constitutes a wrongful invasion of a child's right to 

privacy and results in social, developmental and emotional 

injury to such child and that to protect children from sexual 

exploitation it is necessary to prohibit the production of 

material which involves or is derived from such exploitation and 

to exclude all such material from the channels of trade and 

commerce; (2) that the mere possession or control of any 

sexually exploitative material results in continuing 

victimization of children as such material is a permanent record 

of an act or acts of sexual abuse or exploitation of a child and 

that each time such material is viewed the child is harmed; (3) 

that such material is used to break the will and resistance of 

other children so as to encourage them to participate in similar 

acts; (4) that laws banning the production and distribution of 

such material are insufficient to halt this abuse and 

exploitation; (5) that to stop the sexual abuse and exploitation 

of children, it is necessary to ban the possession of any 

sexually exploitative materials; and (6) that the [C]ommonwealth 

has a compelling interest in outlawing the possession of any 

materials which sexually exploit children in order to protect 

the privacy, health and emotional welfare of children and 

society as a whole." St. 1997, c. 181, § 1.

 
5

that depicted naked children.5 The photocopies, which will be 

described in detail later in this opinion, were black and white, 

and they appeared grainy.6 The defendant admitted that the 

photocopies were his, and he told the officers that they were 

"from a pamphlet from a nudist colony that he had gotten many, 

many years ago that he had cut out and stuck in the envelope."7

 

5 During their search of the defendant's cell, correction 

officers also found several hand-drawn pictures of children 

engaged in sexual acts (two of which were in the envelope with 

the photocopies), a sketch of a boy holding a baseball bat 

(later determined to be an image of Adam Walsh, a six year old 

boy who was abducted and murdered in 1981), and the "makings of 

a small teddy bear." Because these additional items did not 

serve as bases for his indictments, we do not consider them 

further.

6 Department of Correction officer Michael O'Malley 

testified that any pictures that depict nudity are deemed 

contraband, the possession of which constitutes a disciplinary 

infraction. This policy was implemented by the Department of 

Correction in 2002. The existence of this policy has no bearing 

on whether the photocopies at issue are "lewd," and, therefore, 

whether their possession constitutes a crime under G. L. c. 272, 

§ 29C (vii). See Commonwealth v. Sullivan, 82 Mass. App. Ct. 

293, 302 (2012) (depiction of mere nudity insufficient to render 

photograph lewd).

7 The photocopies originated from three sources: a special 

issue of National Geographic magazine devoted to China (one 

photocopy); an Internet edition of a textbook entitled 

"Sociology" (one photocopy); and a naturist catalogue entitled 

"Internaturally Inc.," which offered for sale travel packages, 

books, videos, and photographs relating to nude recreation (five 

photocopies). The grand jury were not presented with the 

original source materials for the photocopies. Rather, the 

source materials were introduced by defense counsel, without 

objection from the Commonwealth, at the hearing on the 

defendant's motion to dismiss the indictments. During this 

hearing, the assistant district attorney stated that, at the 

time of the grand jury proceedings, the Commonwealth did not 

have any information regarding the origins of the photocopies.

 
6

Based on his years of training and experience, Sergeant David 

McSweeney of the State police testified that all of the images 

were of real children (not computer depictions or morphed 

images) who were under the age of eighteen.

3. Standard of review. The Commonwealth contends that the 

proper standard of review is whether the evidence before the 

grand jury established probable cause to arrest the defendant 

for possession of child pornography. We agree with the 

Commonwealth, mindful of special considerations that arise when 

a case involves expression that may be protected by the First 

Amendment.

Ordinarily, a "court will not inquire into the competency 

or sufficiency of the evidence before the grand jury." 

Commonwealth v. Robinson, 373 Mass. 591, 592 (1977), quoting 

Commonwealth v. Galvin, 323 Mass. 205, 211-212 (1948). See 

Commonwealth v. Coonan, 428 Mass. 823, 825 (1999), citing 

Commonwealth v McCarthy, 385 Mass. at 161-163. However, in 

Commonwealth v. McCarthy, supra at 163, we recognized a limited 

exception to this general rule, concluding that a court must 

dismiss an indictment where the grand jury "fail[] to hear any 

The motion judge considered this source material in allowing the 

motion to dismiss. Its relevance to our analysis will be 

discussed in note 13, infra.

 
7

evidence of criminal activity by the defendant."8 See 

Commonwealth v. Moran, 453 Mass. 880, 883-884 (2009), quoting 

Commonwealth v. Coonan, supra. At the very least, the grand 

jury must hear enough evidence to establish the identity of the 

accused9 and to support a finding of probable cause to arrest the 

accused for the offense charged. Commonwealth v. McCarthy, 

supra, citing Connor v. Commonwealth, 363 Mass. 572, 573-574 

(1973), and Lataille v. District Court of E. Hampden, 366 Mass. 

525, 531 (1974). See Commonwealth v. Roman, 414 Mass. 642, 643 

(1993). "A grand jury finding of probable cause is necessary if 

indictments are to fulfil their traditional function as an 

effective protection 'against unfounded criminal prosecutions.'" 

Commonwealth v. McCarthy, supra, quoting Lataille v. District 

Court of E. Hampden, supra at 532.

It is well established that "[p]robable cause to arrest 

'requires more than mere suspicion but something less than 

evidence sufficient to warrant a conviction.'" Commonwealth v. 

Roman, supra, quoting Commonwealth v. Hason, 387 Mass. 169, 174 

(1982). See generally K.B. Smith, Criminal Practice and 

8 We also have departed from the general rule of not 

inquiring into the competency or sufficiency of evidence before 

a grand jury where a defendant shows that the integrity of the 

grand jury proceeding itself was impaired. See Commonwealth v. 

Clemmey, 447 Mass. 121, 130 (2006); Commonwealth v. Mayfield, 

398 Mass. 615, 619-622 (1986). In the present case, no such 

claim has been raised.

9 Here, there has been no challenge to the identity of the 

defendant.

 
8

Procedure § 3.51 (3d ed. 2007). "The evidence before the grand 

jury must consist of reasonably trustworthy information 

sufficient to warrant a reasonable or prudent person in 

believing that the defendant has committed the offense." 

Commonwealth v. Roman, supra. See Commonwealth v. O'Dell, 392 

Mass. 445, 450 (1984), quoting Commonwealth v. Stevens, 362 

Mass. 24, 26 (1972). See also Commonwealth v. McCarthy, 385 

Mass. at 163. Where the Commonwealth has not produced any 

evidence to support a finding of probable cause to arrest, an 

indictment must be dismissed. See Commonwealth v. Levesque, 436 

Mass. 443, 447 (2002). Conversely, where the Commonwealth 

satisfies the probable cause standard, the determination whether 

a visual depiction constitutes a "lewd" exhibition within the 

meaning of G. L. c. 272, § 29C (vii), is one for a fact finder. 

See Commonwealth v. Robinson, 373 Mass. at 592-594 (sufficiency 

of evidence reserved for trial on merits).

We proceed to consider whether, in this case, the grand 

jury were presented with any evidence to support a finding of 

probable cause to arrest the defendant for possession of child 

pornography under G. L. c. 272, § 29C (vii).10 The defendant has 

10 The defendant points out that the grand jury were not 

instructed on the legal definition of child pornography. 

Generally speaking, the Commonwealth is not required to provide 

legal instructions on the elements of an offense for which it 

seeks an indictment, out of a concern that such a requirement 

"would add delay and complexity without serving any significant 

purpose." Commonwealth v. Noble, 429 Mass. 44, 48 (1999). We 

 
9

conceded that he possessed the photocopies, that the children 

depicted in them were real children, that they were under the 

age of eighteen, and that they were nude. Therefore, the 

probable cause determination turns on whether the photocopies 

depicted a "lewd exhibition." G. L. c. 272, § 29C (vii). 

Typically, when considering an appeal from the allowance of a 

motion to dismiss an indictment, we review the evidence in the 

light most favorable to the Commonwealth. See Commonwealth v. 

Washington W., 462 Mass. 204, 210 (2012), citing Commonwealth v. 

Moran, 453 Mass. at 885. See also Commonwealth v. Levesque, 

supra at 444. However, because this case involves depictions of 

naked children, we must be sure that the grand jurors "have not 

encroached on expression protected by the First Amendment."11 

Commonwealth v. Sullivan, 82 Mass. App. Ct. 293, 303 (2012). 

have recognized only two limited exceptions to this general 

rule, neither of which is applicable here. See Commonwealth v. 

Walczak, 463 Mass. 808, 810 (2012); Commonwealth v. Noble, 

supra. Given our disposition of this case, we do not decide 

whether the general rule against the provision of instructions 

to a grand jury should be expanded.

11 The depiction of nudity, in the absence of lasciviousness 

or lewdness, is protected under the First Amendment to the 

United States Constitution. See Osborne v. Ohio, 495 U.S. 103, 

112 (1990); Erznoznik v. Jacksonville, 422 U.S. 205, 213 (1975). 

See also Commonwealth v. Sullivan, 82 Mass. App. Ct. at 313 

(Milkey, J., dissenting) ("a statute that sought to punish the 

portrayal of mere nudity, even of children, would be 

constitutionally infirm"). In contrast, child pornography, such 

as described in G. L. c. 272, § 29C, is a category of material 

that is outside the protection of the First Amendment. See 

Osborne v. Ohio, supra at 111; New York v. Ferber, 458 U.S. 747, 

763, 765 & n.18 (1982). See also Commonwealth v. Kenney, 449 

Mass. 840, 848-849 (2007).

 
10

Accordingly, we undertake a de novo review of the challenged 

pictures. See Commonwealth v. Bean, 435 Mass. 708, 714 (2002)

(Bean). See also Commonwealth v. Sullivan, supra at 303-307 

(conducting de novo review of photograph of naked adolescent to 

determine lewdness); Commonwealth v. Militello, 66 Mass. App. 

Ct. 325, 331 (2006).

In Bean, supra at 708, following a bench trial in the 

Superior Court, the defendant was convicted of posing a fifteen 

year old girl for photographs with her breast exposed in 

violation of G. L. c. 272, § 29A (a). The photographs were the 

primary evidence of whether the defendant had acted with 

"lascivious intent," which is a necessary element of the crime 

of posing or exhibiting a child in a state of nudity or sexual 

conduct. Id. at 708-709, 714, citing G. L. c. 272, § 29A. In 

determining that de novo review of the photographs was 

appropriate, we pointed out that the United States Supreme Court 

had emphasized in Bose Corp. v. Consumers Union of U.S., Inc., 

466 U.S. 485, 504-505 (1984), that "cases involving speech under 

the First Amendment require independent appellate review of the 

offending material to ensure that protected speech is not 

infringed." Bean, supra at 714. See Pereira v. Commissioner of 

Social Servs., 432 Mass. 251, 258 (2000), quoting O'Connor v. 

Steeves, 994 F.2d 905, 912-913 (1st Cir.), cert. denied sub nom. 

Nahant v. O'Connor, 510 U.S. 1024 (1993) ("appellate court has 
11

an obligation to 'make an independent examination of the whole 

record' in order to make sure that 'the judgment does not 

constitute a forbidden intrusion on the field of free speech'"); 

Commonwealth v. Moniz, 338 Mass. 442, 446-447 (1959), citing 

Roth v. United States, 354 U.S. 476, 497-498 (1957) (Harlan, J., 

dissenting) (appellate courts must judge pruriency of alleged 

pornographic material to determine whether material is afforded 

constitutional protection). See also United States v. Amirault, 

173 F.3d 28, 32-33 (1st Cir. 1999), and cases cited. We noted 

in Bean that "[t]he fact finder is in no better position to 

evaluate the content and significance of these photographs than 

an appellate court." Bean, supra at 714 n.15. Unlike testimony 

from a witness, an objective analysis of tangible evidence such 

as photographs requires no credibility determinations, rendering 

de novo review appropriate. See Commonwealth v. Novo, 442 Mass. 

262, 266 (2004). After conducting an independent review of the 

photographs in Bean, this court concluded that the defendant's 

conviction must be reversed because the evidence of lascivious 

intent was insufficient. See Bean, supra at 709, 715-717.

We recognize that Bean involved a review of evidence 

presented at trial, whereas the present case involves a review 

of evidence presented to a grand jury. Nonetheless, the 

underlying constitutional concern raised in each case is the 

same -- whether photographs of the naked body are entitled to 
12

protection under the First Amendment based on an assessment of 

whether or not they are lewd. See Bean, 435 Mass. at 714-715. 

See also note 11, supra. The nature of this assessment by an 

appellate court does not change based on whether it occurs after 

indictments are handed down or after trial. Consequently, we 

deem it proper to consider whether the grand jury in this case 

were presented with any evidence to support a finding of 

probable cause to arrest the defendant for possession of child 

pornography by reviewing de novo the seven photocopies at issue 

to determine whether they are themselves lewd.12 As the Appeals 

Court cogently pointed out in Commonwealth v. Sullivan, 82 Mass. 

App. Ct. at 306, "where First Amendment rights are at issue," we 

must approach the lewdness determination with "circumspection."

4. Discussion. The Commonwealth asserts that the evidence 

before the grand jury provided probable cause to arrest the 

12 The Commonwealth contends that the original source 

material for the photocopies should not be considered because it 

was not presented to the grand jury, and it had no bearing on 

the grand jurors' assessment of the actual photocopies possessed 

by the defendant. We recognize that where the grand jury were 

not presented with the source material, their assessment whether 

the photocopies depicted a "lewd exhibition" under G. L. c. 272, 

§ 29C (vii), could only be based on the photocopies themselves. 

However, because First Amendment considerations necessitate de 

novo review of the challenged evidence, we may evaluate the 

pictures in the context of their source material. Had the 

Commonwealth been aware of the source material at the time of 

the grand jury proceedings, see note 7, supra, it would have 

been incumbent on the assistant district attorney to present 

such evidence to the grand jurors. In our view, the context of 

the photocopies informs our analysis whether they should be 

interpreted as a "lewd exhibition." G. L. c. 272, § 29C (vii).

 
13

defendant for possession of child pornography under G. L. 

c. 272, § 29C (vii). In the Commonwealth's view, because the 

seven photocopies depicted naked young children with their 

genitals exposed, the photocopies were a lewd exhibition. As 

such, the Commonwealth continues, the motion judge erred in 

dismissing the indictments.13 We disagree.

General Laws c. 272, § 29C, does not define a "lewd" 

exhibition. It is well settled that "nudity alone is not enough 

to render a photograph lewd." Commonwealth v. Sullivan, 82 

Mass. App. Ct. at 302. See Osborne v. Ohio, 495 U.S. 103, 112-

114 (1990) (depictions of nudity, without more, constitute 

protected expression); United States v. Amirault, 173 F.3d at 

33. See also United States v. Villard, 885 F.2d 117, 125 (3d 

Cir. 1989), quoting United States v. Villard, 700 F. Supp. 803, 

812 (D.N.J. 1988) ("When a picture does not constitute child 

pornography, even though it portrays nudity, it does not become 

child pornography because it is placed in the hands of a 

13 The Commonwealth also has asserted that the grand jury 

could conclude that the defendant possessed child pornography 

based not only on the photocopies themselves, but also on how 

the defendant stored those images (in an envelope inside his 

footlocker) and on what other items he possessed and kept with 

the photocopies (hand-drawn pictures of children engaged in 

sexual acts). Whether the photocopies depict a "lewd 

exhibition," G. L. c. 272, § 29C (vii), depends on what is 

visually portrayed in the pictures themselves, not on other 

ancillary evidence that may be suggestive of the defendant's 

state of mind. The context for the defendant's possession of 

the seven photocopies is irrelevant to the objective assessment 

of their lewdness.

 
14

pedophile"). In deciding whether a particular exhibition of a 

child's naked body is lewd, courts have looked to the criteria 

articulated in United States v. Dost, 636 F. Supp. 828, 832 

(S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 

F.2d 1239, 1244 (9th Cir.), cert. denied, 484 U.S. 856 (1987), 

which commonly are referred to as the Dost factors.14 See 

Commonwealth v. Sullivan, supra at 302-305. See also United 

States v. Amirault, supra at 31-32. The Dost factors are as 

follows:

"1) whether the focal point of the visual depiction 

is on the child's genitalia or pubic area;

"2) whether the setting of the visual depiction is 

sexually suggestive, i.e., in a place or pose generally 

associated with sexual activity;

"3) whether the child is depicted in an unnatural 

pose, or in inappropriate attire, considering the age of 

the child; 

14 The factors articulated in United States v. Dost, 636 F. 

Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom. United States v. 

Wiegand, 812 F.2d 1239, 1244 (9th Cir.), cert. denied, 484 U.S. 

856 (1987), arose "from a line of cases in which the courts were 

called on to interpret the Federal Child Protection Act of 1984 

(18 U.S.C. § 2252), which defines 'sexually explicit conduct' by 

reference to the phrase 'lascivious exhibition of the genitals.' 

18 U.S.C. § 2256(2)(e) (2000)." Commonwealth v. Bean, 435 Mass. 

708, 713 (2002). In the present case, G. L. c. 272, § 29C 

(vii), expressly refers to a "lewd" exhibition, rather than a 

"lascivious" exhibition. Nonetheless, for the purpose of our 

analysis, we treat these terms as synonymous. See United States

v. Frabizio, 459 F.3d 80, 85 (1st Cir. 2006) (courts uniformly 

have equated terms "lascivious" and "lewd"); United States v. 

Wiegand, 812 F.2d 1239, 1243 (9th Cir.), cert. denied, 484 U.S. 

856 (1987) ("'Lascivious' is no different in its meaning than 

'lewd.'").

 
15

"4) whether the child is fully or partially clothed, 

or nude;

"5) whether the visual depiction suggests sexual 

coyness or a willingness to engage in sexual activity; 

[and]

"6) whether the visual depiction is intended or 

designed to elicit a sexual response in the viewer."

United States v. Dost, 636 F. Supp. at 832.

The Dost factors are neither comprehensive nor dispositive, 

but they do provide guidance for a court's analysis whether a 

visual depiction constitutes a "lewd" exhibition.15 See Bean, 

supra at 713-714, quoting United States v. Amirault, 173 F.3d at 

32; Commonwealth v. Sullivan, 82 Mass. App. Ct. at 302-303. See 

also United States v. Frabizio, 459 F.3d 80, 87 (1st Cir. 2006), 

quoting United States v. Amirault, supra at 32. A determination 

regarding lewdness "must be made on a case-by-case basis" and 

should be founded on "the overall content of the visual 

depiction." Dost, 636 F. Supp. at 832. See United States v. 

15 The parties here have framed their arguments in the 

context of the Dost factors. It is notable that in Dost, 636 F. 

Supp. at 829-830, the defendants were charged with, among other 

things, using a minor to engage in sexually explicit conduct for 

the purpose of producing visual depictions of such conduct. The 

sixth Dost factor is applicable in such a context because it 

inquires about the producer's intent vis-à-vis the viewer. See 

United States v. Amirault, 173 F.3d 28, 34-35 (1st Cir. 1999). 

Where, as here, a case involves only the possession of child 

pornography, the circumstances surrounding its production, 

including the producer's intent, likely will be unknown. 

Therefore, the sixth Dost factor may provide limited guidance 

with regard to the lewdness determination in such a case. See 

id. See also United States v. Rivera, 546 F.3d 245, 252 (2d 

Cir. 2008), cert. denied, 555 U.S. 1204 (2009), and cases cited.

 
16

Frabizio, supra, quoting United States v. Amirault, supra. A 

visual depiction need not involve all of the Dost factors in 

order to be deemed lewd. See Dost, supra. Moreover, there may 

be other factors that are equally or more important in the 

lewdness analysis. See United States v. Amirault, supra.

We consider the Dost factors in the context of the 

Legislature's purpose in enacting G. L. c. 272, § 29C, namely to 

protect children from sexual exploitation. See note 4, supra. 

States have a compelling interest in protecting the physical and 

psychological well-being of children, see New York v. Ferber, 

458 U.S. 747, 756-757 (1982), quoting Globe Newspaper Co. v. 

Superior Court, 457 U.S. 597, 607 (1982), and, consequently, 

States may proscribe the possession of child pornography. See 

Osborne v. Ohio, 495 U.S. at 111; Commonwealth v. Kenney, 449 

Mass. 840, 848-849 (2007); Commonwealth v. Sullivan, 82 Mass. 

App. Ct. at 302, quoting Commonwealth v. Kenney, 449 Mass. at 

848. As the Legislature has pointed out, "the mere possession 

or control of any sexually exploitative material results in 

continuing victimization of children as such material is a 

permanent record of an act or acts of sexual abuse or 

exploitation of a child and . . . each time such material is 

viewed the child is harmed." St. 1997, c. 181, § 1 (2). The 

Legislature found that in order to "stop the sexual abuse and 

exploitation of children, it [was] necessary to ban the 
17

possession of any sexually exploitative materials." Id. at § 1 

(5).

We turn now to consideration of the photocopies that were 

found in the possession of the defendant. They are as follows:

Grand Jury Exhibit 7 is a picture of a man and four 

prepubescent children standing on some rocks in front of a 

body of water. The man is wearing a hat, and two of the 

children are wearing sandals. Otherwise, they all are 

nude. All are smiling. The man is holding one child in 

his arms, two children are standing on his right side, and 

one child is standing on his left side. The girl standing 

on the man's right side is holding something in her hands. 

The genitals of the man and of two of the children (boys) 

are visible. The picture is approximately two inches by 

two and one-half inches in size.

Grand Jury Exhibit 8 is a picture of a prepubescent 

child as seen from the rear. The child is nude, except for 

socks and sneakers. No genitals are visible. The picture 

is approximately one inch by three inches in size.

Grand Jury Exhibit 9 is a picture of a prepubescent 

boy as seen from the side. He is nude, except for sandals. 

His genitals are visible, albeit not clearly. The boy's 

arms are bent at the elbow and outstretched as if reaching 

for or touching something in front of him. The picture is 

approximately one inch by two and one-half inches in size.

Grand Jury Exhibit 10 is a picture of two prepubescent 

boys, one standing in front of the other. The rear child 

appears to be pouring water from a hose over the head of 

the child in the front. Both are nude, and their genitals 

are visible. Their lower legs and feet do not appear in 

the picture. The picture is approximately one and one-half 

inches by two and one-half inches in size.

Grand Jury Exhibit 11 is a picture of two prepubescent 

children, a boy and a girl, standing side by side. Both 

are nude, and their genitals are visible. The girl appears 

to have her arm around the boy's waist, she is resting her 

head on his shoulder, and she is smiling. Their lower legs 

and feet do not appear in the picture. The picture is 

approximately one and one-half inches by three inches in 

size.
18

Grand Jury Exhibit 12 is a picture of a prepubescent 

child, as seen from the rear, standing at the edge of a 

body of water. The child is nude. No genitals are 

visible. The picture is approximately one inch by three 

and one-half inches in size.

Grand Jury Exhibit 13 is a picture of a prepubescent 

boy, bending over a bicycle and appearing to adjust its 

seat. He is nude, except for sandals. His genitals are 

visible, albeit not clearly. The picture is approximately 

two inches by three inches in size.

Based on our de novo review of the photocopies, it is 

plainly apparent that their only notable feature is the nudity 

of the children. In none of the photocopies is the focal point 

of the visual depiction a child's genitals, and the children are 

not shown in any unnatural poses. Rather, the children are 

portrayed either simply standing around or engaging in ordinary 

activities in unremarkable settings. The visibility of the 

children's genitals is merely an inherent aspect of the fact 

that they are naked. There is nothing remotely sexual, either 

explicitly or implicitly, in any of the photocopies. The 

demeanor, facial expressions, and body language of the children 

suggest nothing inappropriate. In the photocopies depicting 

more than one child, the children appear to be comfortable in 

their surroundings and enjoying each other's company in a 

nonsexual manner. Nothing about the photocopies indicates in 

any way that they were derived from the sexual exploitation of 

the children depicted therein, such that their possession would 
19

result in the continuing victimization of those children.16 As 

we have said, the depiction of mere nudity is insufficient to 

render a visual image lewd. See Osborne v. Ohio, 495 U.S. at 

112-114; United States v. Amirault, 173 F.3d at 33; Commonwealth

v. Sullivan, 82 Mass. App. Ct. at 302.

As a matter of law, no grand jury could conclude that the 

seven photocopies constituted a "lewd exhibition" under G. L. 

c. 272, § 29C (vii). It follows, therefore, that the grand jury 

were not presented with any evidence to support a finding of 

probable cause to arrest the defendant for possession of child 

pornography.

5. Conclusion. The order of the Superior Court allowing 

the defendant's motion to dismiss the indictments is affirmed.

So ordered.

16 The images in the photocopies originated from photographs 

accompanying written materials of an educational or recreational 

nature that are readily available to the general public, albeit 

perhaps to niche audiences. See note 7, supra. Generally 

speaking, these types of images are not deemed "lewd." See 

Commonwealth v. Sullivan, 82 Mass. App. Ct. at 306 (photographs 

in medical textbook, pictorials in National Geographic, and 

works in art museum typically not lewd exhibitions). Cf. United 

States v. Various Articles of Merchandise, Schedule No. 287, 230 

F.3d 649, 657 (3d Cir. 2000) (photographs from magazines devoted 

to nudists' lifestyles not deemed lewd). Moreover, "[c]hild 

pornography is not created when the [viewer] derives sexual 

enjoyment from an otherwise innocent photo[graph]." United 

States v. Villard, 885 F.2d 117, 125 (3d Cir. 1989), quoting 

United States v. Villard, 700 F. Supp. 803, 812 (D.N.J. 1988).