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National Geographic photos not child porn, court rules

The state’s highest court has tossed out a child pornography case against a convicted child rapist who had photocopies of pictures of naked children from a National Geographic magazine, a sociology textbook, and a naturist catalogue in his state prison cell.

The state Supreme Judicial Court said that the photos allegedly kept by sex offender John D. Rex did not constitute a “lewd exhibition” so they weren’t covered under the state’s law banning child pornography.

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The court noted previous decisions that had found that “nudity alone is not enough to render a photograph lewd.”

“There is nothing remotely sexual, either explicitly or implicitly, in any of the photocopies,” the court said after reviewing the pictures.

The court, in an opinion written by Justice Francis X. Spina, agreed with a Superior Court judge who had dismissed a Norfolk County grand jury indictment against Rex that charged him with seven counts of possession of child pornography and seven counts of being a habitual offender.

“As a matter of law, no grand jury could conclude that the seven photocopies constituted a ‘lewd exhibition’” under state law, the court said. “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.”

The court noted that the photos came from materials that are readily available to the general public, though perhaps to niche audiences. And it noted previous court decisions that found “child pornography is not created when the [viewer] derives sexual enjoyment from an otherwise innocent photograph.”

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Rex, 43, is an incarcerated Level 3 sex offender who has been convicted of eight sex charges, including rape and abuse of a child, according to the state’s sex offender registry.

In a statement, Norfolk District Attorney Michael Morrissey said the SJC ruling runs counter to federal law where judges have ruled images can be considered child pornography when there is evidence that the image was cropped to emphasize the nude child.

Rex cropped the images just that way, Morrissey’s office said in a statement.

“We see this decision as an unfortunate departure from federal case law,’’ Morrissey said. “A Norfolk County grand jury found that the images possessed by Rex were lewd, and the case law prior to this suggested strongly that decision was appropriately made by a jury of citizens.’’

John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe.

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