Library officials were scrambling Wednesday to decide whether to retain in the city’s main library two books containing pictures of nude children that a judge has said are pornographic.
Superior Court Judge William Kennedy, finding a repeat child molester guilty of possessing child pornography, said the pictures in the two books “are not for art’s sake but for sexual and offensive purposes” and thus fit the definition of child pornography.
Photocopies made at the library were found in the possession of Charles Stephen Davis, 49, who has served two prison terms for child molestation.
After a one-day, nonjury trial, Davis was convicted Tuesday of one count of child molestation for assaulting a 7-year-old girl and three counts of possessing child pornography.
Most of the pictures that Davis possessed he had taken himself at Balboa Park, using a hidden camera to photograph the crotches and undergarments of young girls as they played on swings or sandbox slides.
Along with those pictures, Davis had copies of photographs from two books in the reference section of the downtown library: “States of Grace” by Graham Ovenden and “Twenty-Five Years as an Artist” by David Hamilton. Ovenden and Hamilton are English photographers whose work has been acclaimed by art critics but blasted by some politicians and conservatives.
Kennedy, a former federal and county prosecutor, said, “All one has to do is review the photos candidly and reasonably” to see that they are meant to be seductive by displaying genitals.
After the judge’s ruling, county prosecutors notified the Police Department for possible enforcement of anti-child pornography laws.
Police officials conferred with library officials and decided Wednesday to await the decision of a committee being formed to review the two books.
Helga Moore, deputy library director, said the oversized books will be in the reference section and available for public viewing while the committee develops a recommendation for the head librarian on whether the books should remain. Like other reference books, the Hamilton and Ovenden works cannot be taken from the library.
The decision on whether the books remain ultimately may be made by the head librarian’s boss, the city manager, who works for the mayor and City Council.
“My advice to the library is to move slowly and cautiously,” said San Diego City Atty. Casey Gwinn. “Let’s not turn this into a book-banning party.”
Moore said the committee, which will include members of the public, will review the books for artistic merit.
“We do have books of nude photography in the library, but they are selected based on artistic merit, professional reviews and the reputations of the artists,” Moore said. “Obviously, when we select books, we do not select pornography for the library.”
Under the state’s three-strikes law, Davis faces a possible life sentence when sentenced May 7. His defense attorney, Albert Tamayo, disagreed with Kennedy’s finding on the library books.
“If he’s right, then the librarians are guilty of crimes because they’ve possessed the books and made them available to the public,” Tamayo said.
The issue of what constitutes child pornography has flared in various cities across the country, as members of the Christian right and others have sought to have books with pictures of nude children removed from libraries and bookstores.
Thirty-five members of Congress last year asked President Clinton to increase prosecutions for violating obscenity and child pornography laws, citing Hamilton’s book “Age of Innocence.”
Unlike sexually explicit material involving adults, child pornography is not protected by the 1st Amendment. Federal law and a subsequent U.S. Supreme Court decision say that pictures of children’s genitals are pornographic if their intent is “lascivious.” Opposing lawyers have disagreed about how that term should be defined.