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Bookstores won’t be indicted

Grand jury refuses to charge local sellers of Jock Sturges’ photo book of nude children

A grand jury has declined to indict local bookstores for selling Jock Sturges’ photography books of nude children in provocative poses.
The decision disappointed members of the Kansas Family Research Institute, a Christian group that had spent two years protesting the books as a form of child abuse. The institute had collected enough signatures on petitions to require that a grand jury be convened.
The 15 grand jurors reached their conclusion last week in a closed proceeding. Their decision was made public Friday.
The institute or anyone else may collect enough signatures to impanel another grand jury, but, for now, the decision closes the case.
Kathryn Gardner, an attorney on the institute’s advisory board, said the decision won’t stop the group from educating the public about its concerns with the book, or from lobbying the state Legislature.
“Just getting a grand jury convened and getting enough signatures is a pretty good reflection of the community’s standards that they don’t like this,” Gardner said.
Members of the group launched the petition drive after District Attorney Nola Foulston decided not to prosecute. They had first complained to her in April 1996.
The issue for group members is not whether pornography is art. They perceive the black-and-white photos of nude children, some with their genitals exposed, as child abuse and had hoped Sedgwick County would join grand juries in Tennessee and Alabama that handed down indictments.
Sturges, in a statement issued Friday though his Wichita attorney, Dan Monnat, thanked the grand jury for its “high-minded insistence upon freedom of expression and refusal to become involved in a modern-day witch hunt.”
He said his purpose is humanistic, and he does not take or publish children’s pictures without their parents’ consent.
Foulston said Friday that the nudity in Sturges’ photographs is not a prosecutable offense.
“The U.S. Supreme Court has said mere nudity alone is not enough to constitute exploitation of a child and the photographs in this case were of nude people only,” she said.
“We regularly prosecute people who exhibit phots of children who are naked when those photos are exploitive under the law by showing acts of intercourse, so it is not as if this office does not prosecute those cases.”
She said the grand jury’s conclusion validates her office’s decision not to file charges.
The grand jury needed eight hours over two days to hear the evidence and reach a decision. State law prevents anyone involved in the case from discussing how the jurors voted and what evidence was presented. To issue an indictment, at least 12 jurors would have had to agree.
Jack Focht, a former assistant district attorney who has prosecuted obscenity cases, served as special prosecutor for the proceedings. Foulston hired him instead of handling the case herself to avoid charges of bias because she has said publicly that Kansas law does not apply to Sturges’ books. It was not known Friday how much the case cost taxpayers.
State Rep. Tony Powell, R-Wichita, who supported the institute’s protest against Sturges’ books, questioned whether Foulston deliberately chose an attorney sympathetic to her viewpoint.
“Jack Focht is a good guy, an excellent lawyer, but he was not someone the institute would have chosen for this case,” said Powell, an attorney. “I would not be surprised if he just showed the book and explained the law. And that’s not enough to fairly judge the case.”
The grand jury’s decision sets it apart from the grand jury actions in Alabama and Tennessee.
The Alabama indictment involves 17 counts over the sale of one of Sturges’ books. If Barnes & Noble is convicted, the company could be fined up to $10,000 on each count. As of Friday, no court date had been set in the case.
The Tennessee grand jury found that Barnes & Noble did not display the book out of the line of sight of children, as required by local law. A hearing will be held May 18.
Last fall, Wichitans protested the sale of the book at Borders Books & Music and Barnes & Noble Booksellers. The book is now sold out in Wichita.

By Lori Lessner