Do Nude Drawings Sent to Your Five-Year-Old Daughter Appeal to “a Prurient Interest in Sex of Minors”

Utah law, like the law of many states, bans the distribution to minors of “harmful-to-minors” material (for more on this, see this post). The Utah statute reads,

“Harmful to minors” means that quality of any description or representation, in whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it:
(i) taken as a whole, appeals to the prurient interest in sex of minors;
(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(iii) taken as a whole, does not have serious value for minors.

Defendant, with the unlikely last name of Butt, was in jail on a theft charge, and wrote two letters to his wife — letters that were read by jail officials pursuant to a jail random interception policy — with drawings that he asked the wife to pass along to their 5-year-old-daughter:

The first letter was addressed to Defendant’s wife. The envelope had a large pink heart drawn on it, and inside the heart were three letters: C, K, and S, presumably standing for his wife Cammy, his eight-year-old son K.B., and his five-year-old daughter S.B. Defendant enclosed individual letters to his wife and children. At the bottom of the letter for S.B., he drew a picture of himself naked with a speech bubble stating, “I love you [S.B.]” coming from his mouth. Next to the nude drawing of himself, he wrote, “Love you, Dad” and “I have no idea why she wanted me to draw my w[ie]ner. But she insisted. Scary!!” Corporal Black, the prison guard on duty, intercepted this letter. After inspecting it, he took it to Deputy Alan Freestone, the deputy sheriff for the San Juan County Jail. That same day, Deputy Freestone met with Defendant to discuss the drawing; Defendant freely admitted that he drew the picture as a joke because his daughter had asked him to do so.

A few days later, Defendant mailed a second letter to his family. This letter was also addressed to his wife and also contained a drawn heart on it, with C, K, and S inside the heart. This envelope also contained three letters: one each to his wife, son, and daughter. On the bottom of the letter for S.B., Defendant drew another picture of himself naked. This drawing depicted him holding his daughter’s buttocks up to his mouth. A speech bubble from her mouth said, “Oouch! Daddy don’t Bite so hard Giggle giggle .” A speech bubble from his mouth said, “Oh your butt taste so good.” Above the drawing, Defendant wrote, “[S.B.], Hi beautiful girl. I miss you so much. I can’t wait to bite your butt cheek. This is what it will look like. I love you.” A prison guard also intercepted this letter and turned it over to Deputy Freestone. Deputy Freestone met with Defendant in the booking area of the jail to let him know that he did not think the drawing was appropriate. Defendant explained to Deputy Freestone that the drawing depicted a game that he played with his daughter where he bites and tickles her….

Defendant testified that he wrote both letters and drew both pictures. He acknowledged that although the letter was addressed to his wife, he intended his daughter to see his drawings. In his testimony, he stated that his daughter was five years old. He stated that he did not find the drawings offensive because his daughter had watched a documentary about cave drawings and asked him to draw a picture of himself naked like those in the documentary. With regard to the second letter, Defendant testified that his drawing depicted a game he played with his daughter involving biting and tickling.

The jury convicted defendant on two counts of attempting to distribute “harmful to minors” material to his daughter; the jury convicted on both counts; and the Utah Supreme Court upheld the convictions (see State v. Butt (Utah June 8, 2012)), reasoning:

Defendant argues that we should adopt the “‘hard core’ sexual conduct” rule to the case at hand and determine that the pictures in this case were not “hard core.” We decline to do so [in a case involving harmful-to-minors material, as opposed to pornography distributed to adults –EV]….

The language of the statute plainly indicates that the legislature has relinquished its ability to define the scope of words like “harmful,” “prurient,” and “patently offensive,” and delegated that responsibility to the jury. To be clear, a jury may not deem material to be proscribed by section 76–10–1201 without limit. At some point, the Constitution will step in to mark the outer limit of what a jury may find to be criminally actionable. Just as Miller v. California recognizes that the Constitution will not permit a jury to find all material obscene for adults, likewise, the Constitution will inevitably block a jury’s impulse to criminalize certain material as harmful to minors. However, Defendant has not presented a viable argument that the statute under which he was convicted exceeds the bounds set by the Constitution, and we therefore do not define those parameters today….

Because the assessment of whether the evidence is “harmful” is a question for the jury, we cannot conclude that the evidence was insufficient to support a conviction. Instead, the State presented the pictures and asked the jury to decide whether they were harmful. The jury, acting within its discretion, decided they were.

Here’s my question: Can a reasonable jury conclude that the defendant’s drawings appealed to a minor’s prurient (defined as “shameful or morbid”) interest in sex, and especially a 5-year-old girl’s interest in sex? I’m not asking whether parents should actually bite their 5-year-olds on their butts, or whether parents should send nude drawings of themselves to their children — or for that matter whether fathers should be nude in front of their 5-year-old daughters. Rather, I’m asking whether the defendant could reasonably have been found guilty of this crime, which requires that the drawing appeal to a minor’s prurient interest in sex.

(There’s also a separate question of whether and when parents have a right to provide even material that fits the statutory decisions to their own kids, something that the Supreme Court expressly set aside in the case, Ginsberg v. New York (1968), that upheld a general ban on the distribution of “harmful-to-minors” material to children: “[T]he prohibition against sales to minors [in the New York statute] does not bar parents who so desire from purchasing the magazines for their children.”)