In what is believed to be the first prosecution arising from an investigation of an Internet “model” site, a husband and wife in Arkansas who created a site featuring their preteen daughter have been found guilty of filming her engaged in “sexual conduct.” The conviction resulted not from the provocative photos of the young girl they posted on the Web, but from three homemade videotapes showing her nude that were found during a search of the couple’s home.
James Cummings, 35, and his wife, Donna, 36, were sentenced to terms of 13 years and 10 years, respectively, late last month. If the convictions stand, the Cummingses also are expected to lose legal custody of their four children.
After viewing the three videotapes the couple produced that showed their 12-year-old daughter naked, a jury in Logan County, Ark., found James Cummings guilty of violating two state laws by engaging a child in sexually explicit conduct for use in a print or visual medium, and producing, directing or promoting a performance that includes sexual conduct by a person under 17 years of age. His wife was convicted of the first charge, but the jury deadlocked 8-4 on the second.
The couple was convicted of violating laws aimed at child pornographers even though prosecutors produced no evidence that the videotapes seized by sheriff’s deputies during a search of the couple’s Magazine, Ark., home in October 2001 had ever been made public.
Daughter was only witness
The couple’s daughter was the only witness called during the trial. She testified that the tapes - which showed her naked in the bathtub with her mother, who also was nude, and lying on a bed and stripping off lingerie - were made to help her gain confidence in front of the camera.
“The little girl testified for state ... that this was done at her request because she wanted to be a model,” said David Dunagin, one of two defense attorneys hired by the Cummingses.
“She had read that the best way to get over shyness was to be filmed in the nude,” he said.
She also testified that she did not feel there was anything sexual about the tapes and did not think that any one viewing them would think so either.
But Prosecuting Attorney Tom Tatum II said the fact that James Cummings, who filmed the videotapes, could be heard giving instructions to his daughter and wife, “telling people what to expose and what to touch … led the jury to believe that it was something other than an innocent home video.”
He also said that the defunct “model” site featuring the daughter in provocative poses noted that interested customers could arrange private video shoots. “You could reach the conclusion that (the tapes) were what they were offering,” Tatum said.
Comment leads to search
Tatum said the videotapes were seized by deputies who visited the Cummings home after receiving an anonymous tip that James Cummings, a school employee, was operating a Web site featuring his daughter. Upon questioning, Cummings said “he had taken some pictures that may have crossed the line but that he didn’t post them,” which led deputies to obtain a search warrant and return to the home seeking other evidence, Tatum said.
Dunagin said the Cummingses stand a good chance of prevailing if they proceed with plans to appeal the verdict. But that decision will be up to a public defender, he said, since they are broke.
“They were unable to finish paying my fees and I only continued (through the trial) because I felt I had a duty to the court,” he said.
Logan County Public Defender Jason Massey could not be reached for comment.
The Cummings case and two others pending against “model” site operators in Colorado and Missouri are being closely watched by both critics and defenders of the sites.
Critics, including two members of Congress who have introduced legislation aimed at curbing the sites, say the fact that all three operators are accused of violating child porn statutes bolsters their argument that the sites cater to pedophiles rather than followers of fashion.
Some operators shut sites
The prosecutions have caused some operators to either shut down their sites or take a low profile as they await clear signals on how far prosecutors will go in attempting to rein in the sites, the majority of which do not feature nudity or overtly sexual material.
Howard Davidson, director of the American Bar Association’s Center on Children and the Law, said the Cummings case has done little to clarify whether parents who allow their children to be featured on such sites are subject to prosecution on child endangerment grounds.
“Parents who put their children into such situations … are making a terrible mistake,” he said. “But whether they rise to the level of criminals or whether that rises to the level of child neglect is still being played out.”