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Men acquitted of child ography deemed to be for private use
EDMONTON — Two Alberta men who videotaped sex acts between a pair of 14-year-old girls have been acquitted of child ography charges because the material was judged to be legal and for private use.
Donald Jerry Barabash, 63, and Shane Gordon Rollison, 45, were found not guilty Tuesday in Court of Queen's Bench of making child ography. Barabash was also found not guilty of possession of child ography.
The case involved two 14-year-old girls who engaged in sex acts with each other and Rollison in Barabash's home. Barabash videotaped the encounters, though he did not distribute the material.
The teens met during a youth program in High Prairie, Alta., in 2008. They left the program and made their way to Edmonton and to the alleged "crack-house" where Barabash lived. The girls were referred to as "runaways" by investigating officers. Both were drug-users and sexually active.
Among 26 different recordings seized from Barabash and shown to court, the girls engage in sex acts by themselves, with each other and Rollison, a friend of Barabash's. During the trial, court heard that Barabash himself recorded most of the videos over a three-week period and once engaged in the sexual activity.
In his written decision, Court of Queen's Bench Justice Dennis Thomas noted "all appear to engage in this array of sexual activity on a voluntary basis."
Thomas concluded that some of the tapes were child ography made by Barabash and Rollison. However, he acquitted both men on a private-use defence because the sexual activity was legal at the time, the recording never left the control of the participants and all involved consented to the recording.
One of the teens told court, "we didn't do anything we didn't want to."
Thomas found that the teens inspired most of the videos and there was no coercion by the adults. "The males are generally passive, while the complainants are the individuals who direct most activities, sexual or otherwise."
The legal age of sexual consent in Canada was raised from 14 to 16 on May 1, 2008, only weeks after the videotapes were made. Had the videos been made after May 1, Thomas noted, they would have shown illegal activity and therefore be excluded from a private-use defence.
On one of the videos, the two teens discuss the fact that they can legally consent to sex.
"Yeah, it's actually legal," one told the other.
Police found no illegal fire-sharing or access to illegal websites on Barabash's computer.
Neither of the teens asked that the videos be destroyed, which would have taken them out of the realm of private use, Thomas wrote.
Crown prosecutor Julie Roy had argued that the material should not be considered private use if it included the "exploitation or abuse of children."
Thomas wrote that such a determination went beyond the scope of the case.
"I cannot see a basis to identify recorded lawful sexual activity that is so obnoxious that it must be deterred by criminal sanction," he wrote. "The problem with this approach is that a court has no clear basis to say which legal sexual activity does or does not qualify as child ography when recorded."
Thomas also ruled that a wide difference in age between sexual participants does not automatically imply exploitation or abuse.
Police became involved after a sexually explicit picture of the two teens appeared on the Internet. However, court heard that the teenagers took the picture themselves and one of them posted it online.
Men acquitted of child deemed to be for private use
Does that mean that a self-recorded video of a child, for example an eight year old girl, masterbating is not considered 'child ography' since it is a recorded lawful sexual activity and no exploitation was used in it's production?
Last edited by Anonlegaladvice; 02-15-2012 at 07:24 PM. Reason: Spelling error
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