Nudity alone is not enough to try someone for sexual exploitation when it comes to taking videos and photos of children, the Tennessee Supreme Court has ruled.
The five-member panel's unanimous decision, filed Monday, means that nine guilty counts against Thomas W. Whited, 44, of Knoxville are nullified and the case will be sent back to Knox County Criminal Court for further consideration.
Whited was convicted in 2013 of nine counts of especially aggravated sexual exploitation of a minor, one count of attempt to commit the offense, 13 counts of observation without consent and one count of attempt to commit the observation offense.
Authorities said he used a hidden cell phone camera to film a 12-year-old girl as she stepped in and out of the shower and as she and a 14-year-old friend changed swimming suits.
Under Tennessee law, however, mere nudity is not enough to secure a conviction for especially aggravated sexual exploitation of a minor.
Current law requires that besides nudity, the filmed material must show the victim engaged in some kind of sex, the state court found. The intent of the person taking the photos isn't part of state law.
"Assessing the surreptitious videos taken by the defendant in the instant case, we conclude that the videos do not depict a minor engaged in “sexual activity,” defined by statute as the lascivious exhibition of a minor’s private body areas," the court found in an opinion written by Justice Holly Kirby.
Whited's videos showed the girls naked but did not show them taking part in sexual activity, according to the court.
Whited's other convictions in the case remain in place.
The prosecution also can seek to try him for attempt to commit especially aggravated sexual exploitation. The evidence, the court found, also would have allowed for trial taking images without the girls' consent, the court found.
Whited has been serving a 22-year sentence at South Central Correctional Facility in Clifton, Tenn., on the Alabama state line.