Robert Mapplethorpe was a well-known, albeit controversial, American photographer who is renowned for his ”stylized black and white photography,” including celebrity portraits, male and female nudes and a controversial series documenting the underground BDSM scene in New York City.  One of Mapplethorpe’s partially nude portraits was titled “Rosie.” The portrait, an actual photograph, depicts a young girl of about three years of age sitting on a concrete bench. The Texas Thirteenth District Court of Appeals, sitting in Corpus Christi, described the photograph this way:


“[Rosie] sits with her left leg drawn inwards towards her body while her right leg is vertical and bent at the knee. She touches the side of the bench with her right arm while her left arm reaches down in the direction of her left foot. She wears a dress but no underwear. As a result, her vagina is visible in a small part of the extreme lower portion of the image.”


Art Can be Illegal in Texas


Mapplethorpe’s original Rosie photograph is now part of a collection at the Guggenheim Museum in New York City open for public viewing.  Rosie, who is now over 40 years old, has defended the photograph and its artistic value, and says the photo was taken with the consent of her mother, the Lady Beatrix Nevill, who also did not view it as pornographic.


Mark Bolles was sitting in the Corpus Christi Public Library. He was browsing the Internet on one of the library’s computers. The library’s technology manager observed Bolles viewing images of what appeared to be “partially clothed” children. The FBI was notified that a possible child pornography crime was in progress.


That’s how easy it is to become the target of a criminal investigation.


FBI Called for Man Viewing Mapplethorpes at Corpus Library


FBI agent Brian Johnson showed up at the library prepared to launch a full-scale federal observation investigation into Bolles’ computer viewing. He observed Bolles viewing and taking cell phone photographs of images of “nude children” displayed on the computer screen.


That was enough for agent Johnson. He approached Bolles and asked him what he was looking at on the library computer.


Doing what any experienced attorney would have told him to do, Bolles refused to speak to agent Johnson or the Corpus Christi police who had showed up to join the wide-reaching federal investigation.


But Bolles did surrender his cell phone to Johnson.


Apparently unable to access the photos he supposedly saw Bolles taking, agent Johnson released Bolles but gave his cell phone to the Corpus Christi police in the process.


Forensic Investigation Finds Images of Famous Photo


A subsequent forensic analysis discovered four photos on the Bolles’ phone: one nude photo of a young person, a “lewd” photo of a child’s breast, and two photos of Rosie, one being a regular photo and the other being a magnified, cropped photo of Rose’s partially exposed genitalia.


Indictment and Conviction for Child Pornography


The photos led to a three-count indictment against Bolles for possession of child pornography. One count was dismissed after the prosecution and the trial judge determined the nude photo was of a young female adult, not a child. The judge found Bolles “not guilty” on the child breast depiction photo.


The remaining count, the prosecution stipulated, was “a portion of a larger photograph entitled ‘Rosie’ taken by photographer, Robert Mapplethorpe in 1976, and can be viewed at the Guggenheim Museum in New York City.”


The judge, however, convicted Bolles of possessing child pornography based on the “zoomed-in cropped image of [Rosie’s] genitalia.” The judge agreed with the prosecution’s position that Bolles’ zooming in and cropping the image of Rosie’s genitalia changed the image of the original Rosie photograph and created a new child pornographic image under Texas law. The judge gave Bolles a two-year sentence.


Texas Penal Code § 43.26(a) defines child pornography as the knowing and intentional possession of a visual image of a child younger than 18 years of age engaged in sexual conduct.


Texas Penal Code § 43.25(a)(2) defines “sexual conduct,” among other things, as the “lewd exhibition of the genitals.”


The original photograph of Rosie exposing a portion of the child’s genitalia has never been considered “lewd”—and the prosecution in the Bolles case did not present it as such and the judge who tried the case did not consider it as such.


Zoomed-In, Cropped Image


Bolles was found guilty simply because he possessed a zoomed-in cropped image of Rosie’s partially exposed vagina.


On October 5, 2016, the Thirteenth District Court of Appeals reversed Bolles’ conviction, finding that the evidence was insufficient to support his conviction because 1) the full [Rosie] image does not depict the lewd exhibition of the genitals, and 2) Bolles’ cropped image of Rosie’s genitalia did not depict a person under the age of 18 at the time the image was made.


On October 18, 2017, the Texas Court of Criminal Appeals (TCCA) reversed the appeals court’s grant of a new trial and reinstated Bolles’ conviction. The TCCA conceded that the term “lewd exhibition of the genitals” remains statutorily “undefined” in Texas law. The court, therefore, said its review of Bolles’ conviction rested exclusively with whether the zoomed-in cropped image of Rosie’s genitalia constitutes “child pornography.” The concluded it did.


Texas Court of Criminal Appeals: Zooming in and Magnifying Creates Porn


In reaching this conclusion, the TCCA rejected the premise that Mapplethorpe’s “Rosie” photograph is a work of art, a creative expression protected under the First Amendment, and that a magnified, cropped image of that original non-lewd photograph is not “child pornography.” The court explained why it rejected this argument:


“Zooming in and taking a magnified picture of a small portion of an existing photograph of a child—even a work of art—constitutes the creation of a new and separate visual depiction of that child” which can be considered child pornography in Texas.


This is a horrific decision by the TCAA.


Texas Court Finds Art Can be Converted to Porn


The original Rosie photograph is universally recognized as a work of art. There are literally thousands of paintings, sculptures, and photographs in museums around the world or on display at historical sites around the world depicting naked adults and children. Under the Bolles ruling, a Texas tourist traveling across Europe who takes a cell phone photo of an ancient sculpture depicting naked adults and children comingled can be charged with child pornography if the tourist magnifies the photo for clarity and returns to Texas with it.


The Bolles decision prohibits any magnified or cropped image of any historical work of art involving a child, regardless of the medium, which depicts the “lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola” as defined by § 43.25(a)(2).


And this prohibition can be enforced through criminal sanctions despite there being no statutory definition of what constitutes “lewd exhibition” of any of the above-mentioned child body parts.


In effect, it is now considered child pornography in Texas to possess any magnified image of a recognized work of art that exposes the genitals or anus of a child, male or female, or the female child’s breast “below the top of the areola.”


Worse yet, a parent who takes a cell phone photograph of their child’s genitalia or anus that appear swollen or injured and magnifies it for closer inspection is potentially guilty of possessing child pornography under Texas law.


Nudity is Not Lewd


Rosie simply had no underwear on that day in 1976 when Mapplethorpe took her photograph. There was nothing “lewd” about the partial exposure of her vagina nor was there any “lewd” intent on Mapplethorpe’s taking the photograph that captured this partial exposure.


How the innocent partial exposure of a child’s genitalia in a classic work of art can be made “lewd” simply because someone takes a magnified image of that partial exposure escapes our comprehension.


The law is not always meant to be understood, regardless of the amount of logic and reasoning applied to the endeavor. The law is simply applied.


The warning here?


Be careful how you view, and photograph, works of art.  Texas is watching you…