The 5th U.S. Circuit Court of Appeals has formally ruled: Alan Ray Steen is a pervert, he's not a child pornographer.
Steen liked to go to tanning salons and stick a video camera over the cubicle wall to tape women; one day the person he taped turned out to be a girl two weeks shy of her 17th birthday. The video revealed a flash -- 1.5 seconds long -- on the edge of the frame of the girl's pubic region. As a result the U.S. Attorney in Odessa prosecuted him for manufacturing child pornography and Steen was convicted and sentenced to 15 years in federal prison.
In an opinion discussing in detail just how lascivious tanning-bed activity might be, the 5th Circuit agreed with Steen's attorney, Brian Wice of Houston, that what was taped was not child pornography, just garden-variety perviness.
"Even Congress could not have intended for this sentence to be applied to 21st Century peeping toms," Wice tells Hair Balls.
The 5th circuit said the jury was mistaken in ruling that the tape contained "a lascivious exhibition of the genitals."
Also, the whole mise en scène, as they say in film-crit class, just wasn't porny.
The second and third factors consider whether the setting or pose of the depiction is sexually suggestive or unnatural. Traditional settings that meet this standard are beds and bedrooms. A tanning salon is not a sexually suggestive setting, nor are [victim] C.B.'s movements unnatural for someone who is tanning...Under certain circumstances, lying on one's back may be sexually suggestive, but that is not the case when the non-sexual activity being displayed requires one to lie on the back.
C.B., the court ruled, "neither acts coy or willing to engage in sexual activity."
Lastly, the panel examined just what it was that might give Steen a hard-on.
"Even if one assumes Steen was stirred by his voyeuristic pursuits," the court wrote, " there is insufficient evidence to conclude that the image of C.B.'s genitals was designed to elicit a sexual response or whether, perhaps, merely being a voyeur excited Steen."
The case was thrown out. Steen could be charged with the state jail felony of improper videotaping, but then again he's been in a prison since his 2009 conviction.
And not only in prison, but in prison as a manufacturer of child pornography.
"I can't think of anything worse to have on your [file], unless it's 'snitch on the Cali cartel,'" Wice says.
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