SALT LAKE CITY, UT – Child porn charges brought against a former meteorologist for KUTV in Salt Lake City and his business partner may hinge on the definition of “lascivious exhibition,” a term which is not defined in federal law.Matthew John Duhamel, who once worked as weatherman for KUTV in Salt Lake under the name “Matt McCoy,” and business partner Charles Philip Granere face charges of transportation, receipt, and possession of child pornography for allegedly operating websites that featured scantily girls as young as nine in sexually suggestive poses.
Federal prosecutors say the photos on Duhamel’s websites cross the line into child pornography, but Duhamel’s attorney, Richard Mauro, argues that because the children depicted are not naked, the photographs are not “sexually explicit.”
Mauro said he has not seen the images, but charging documents in the case state that none of the girls were nude. Those same documents, though, specify that the images show preteen girls wearing lingerie, or less, and that some of images focus on areas below the waist.
In court documents, the prosecution asserts that the photographs depict minors engaging in sexually explicit conduct which, regardless of whether it is real or simulated sexual activity, is a violation of federal law if a “lascivious exhibition” of the girls’ private parts occurs.
Federal law doesn’t specifically define what “lascivious exhibition” is, but a six-part test from the 1986 child pornography case U.S. v. Dost is used in the federal courts in Utah and will likely be the standard the court relies on in considering the charges against Duhamel and Granere.
In the U.S. v. Dost decision, the decision held that in making such determinations, courts should consider the following: if the focal point of the photographs is on a child’s private area; how clothed the child is; whether the pose suggests sexual coyness; if the pose is sexually suggestive; if the child is in an unnatural pose or age-inappropriate attire; and whether the picture is intended to elicit a sexual response from the viewer.
U.S. District Judge Brooke Wells ordered Duhamel to shut down one of his sites that had remained active within 24 hours as a condition of his release from federal custody on Tuesday. Duhamel is also banned from having any contact with minors, accessing the Internet or taking any job involving photography or video production.
Wells additionally ordered Duhamel to live with either his father in Vancouver, Washington or his mother in Santa Rosa, California and prohibited Duhamel from visiting his seven-year-old daughter in another state.
According to Assistant U.S. Attorney Karin Fojtik, one of Duhamel’s sites had approximately 3,000 members paying $23 a month and Duhamel paid an Indiana mother $17,000 in under than three months for photos of her 10-year-old daughter. According to court documents, Duhamel also shared profits from another site with a North Carolina man who provided photos of a nine-year-old girl.
Prosecutors claim that Granere was Duhamel’s business partner and hosted the websites for which Duhamel bought photos. Fojtik said she could prove that Granere called his employees from jail on Sunday and ordered them to destroy evidence by shutting down servers hosting multiple child-modeling websites.
Granere’s attorney, Assistant Federal Defender Clark Donaldson, said Granere wasn’t destroying evidence because federal authorities had already viewed the websites.
According to the KUTV website, Duhamel bought time on station KPNZ to host a late-night talk show until his arrest last Friday. In addition to his time at KUTV, Duhamel also worked as a meteorologist at KIDK in Idaho Falls, Idaho, from July 2002 to March 2003.
