State appeals court upholds conviction of man who viewed lewd photo on Hingham library computer

By John R. Ellement, Globe Staff

A divided Massachusetts Appeals Court today upheld the conviction of a Level 3 sex offender who was caught downloading the photograph of a naked young girl while he was using the computer at the Hingham public library.

In a 2-1 ruling, judges on the second-highest court in the state concluded that Mark Sullivan was guilty of possession of child pornography and possession of child pornography, second offense, for the image he downloaded and tried to print at the library in February 2007.

Writing for himself and Judge Joseph A. Grasso Jr., Judge Scott L. Kafker said that their independent examination of the photograph in question led them to conclude the image was lewd, and not protected by the First Amendment.

“The photograph was found on a Russian photo-sharing Web site, not in a medical textbook, National Geographic pictorial or in an art museum,’’ Kafker wrote. “It displays no obvious artistic sensibilities...Perhaps most importantly, the focus on the girl’s developing breasts and pubic area distinguishes it from ordinary family photographs simply memorializing a day at the beach.’’

In his dissent, Judge James R. Milkey wrote that “few things are as vile as the sexual abuse of children…but when we imprison someone for mere possession of a photograph of a naked child playing on a beach, we have lost all perspective.’’

Milkey said that the image Sullivan viewed did show a girl who is 11 or 12 years old who was photographed as she played naked on a beach. But, he said, there was nothing in the photo that qualified it as lewd.

“A viewer’s gaze may well be drawn to her developing breasts. To the extent that one’s eyes are drawn there, that fact is neither remarkable nor of significant import,’’ Milkey wrote. “The photograph here is a candid, unposed snapshot of a girl apparently playing on a beach...The girl is not engaged in any sexual activity...nor is she posed to exhibit any willingness to engage in such activity.’’

Milkey wrote that courts have to very carefully distinguish between lewd images and innocent photographs of a child at play.

“Where the individual has not crossed the line, there is a risk that a jury will nevertheless seek to punish him based on the revulsion they feel for what is inside his head,’’ Milkey wrote. “It is the responsibility of judges to try to ensure that this does not happen.’’

According to the court, Sullivan was at the library and was spotted by a librarian as he tried to print out the photo that led to his arrest. A librarian blocked Sullivan from successfully printing the image, and also researched the websites that Sullivan visited during his on-line time at the library, according to court records.

The librarian also searched the Sex Offender Registry Board, located the entry for Sullivan and identified him as the person who downloaded the image. Sulllivan was arrested by Hingham police and convicted in Plymouth Superior Court in 2009 on the possession of child porn charges.

He was sentenced to serve 10 to 15 years in state prison, according to court records.

John R. Ellement can be reached at ellement@globe.com.