Childcare worker who claims to document diaper rash gets 126 years in prison for taking 8 photos

A few years ago, Roseberline Turenne, an 18-year-old daycare assistant in Maryland, used her cell phone to take photos of “the exposed genitals and pubic areas” of eight little girls. Seven of the girls were lying on changing tables, while the eighth was in a bathroom. Turenne later claimed that she was documenting existing diaper rashes, fearing that she would be accused of causing them to develop while the girls were in her care.

Turenne was fired after the photos were discovered because they violated the daycare’s policy, which prohibited staff from taking photos of children. She was also charged with eight counts of child sexual abuse, production of child pornography and possession of child pornography.

The jury ignored Turenne’s explanation of her motive for taking the photographs and convicted her on all 24 counts, resulting in a 126 years prison sentence. Last Friday, the Maryland Supreme Court upheld Turenne’s convictions, concluding that the jury correctly rejected her story, that her conduct met the elements of the three crimes, and that “the evidence was sufficient for the jury to conclude that Ms. Turenne took the photographs of the children for the purpose of sexual gratification.”

While Turenne’s astonishingly harsh sentence was not at issue in this appeal, it vividly illustrates how child pornography laws can generate sentences that make little sense. Even if you join the jurors, the intermediate appeals court, and the Maryland Supreme Court in not believing her story about why she took the photos, she didn’t share them with anyone, and she wasn’t accused of sexually assaulting the girls. Still, under Maryland law, Turenne will have to serve at least a quarter of her 126-year sentence — nearly 32 years — before she’s eligible for parole.

People convicted of violent crimes in Maryland must serve at least half of their sentences before they are eligible for parole. But someone convicted of manslaughter and given the maximum sentence of 10 years would still be eligible for parole after serving five years. Even someone convicted of first-degree rape, which carries a mandatory minimum sentence of 25 years, could end up serving less time than Turenne gets for non-contact crimes that consisted only of taking photographs.

That reality is especially troubling because it is unclear whether Turenne committed the crimes for which she was charged. Only four of the seven justices agreed that all of her convictions were valid. In a partial dissent, joined by Justice Brynja Booth, Chief Justice Matthew Fader concluded that there was insufficient evidence to convict Turenne of producing and possessing child pornography. Justice Shirley Watts agreed, and filed a separate dissent arguing that Turenne’s sexual abuse convictions should also be overturned.

As relevant here, Maryland law defines child pornography as a “visual representation” that “depicts a minor as the subject engaged in … sexual acts,” which includes the “lascivious exhibition of a person’s genitals or pubic area.” While the statute does not define “lascivious exhibition,” the Maryland Supreme Court has held that a “content-plus-context” test is applied to determine “whether the depiction is objectively sexual in nature.”

In other words, the production and possession charges did not hinge on Turenne’s personal motivation. In concluding that Turenne’s photographs were “objectively sexual,” the majority noted that “all eight girls were partially or fully nude,” that “all showed naked genitals and pubic hair,” that “none of the children’s faces are visible in the photographs,” that the photographs “all looked very similar to each other,” and that several of the girls “were in poses similar to what you might see in some adult pornography: the subject on her back, her legs spread, her genitals exposed.”

Fader agreed with the test his colleagues used, but argued that they had applied it incorrectly. “I would conclude that none of the eight photographs in question depict a ‘lascivious exhibition of the genitals,'” he wrote. “Seven of the photographs show a child on a changing table, naked, in a position entirely consistent with a child getting her diaper changed. The final photograph shows a child standing in a bathroom, naked from breastbone to knees. None of the children are posed in anything resembling a sexual position. There are no other people in any of the photographs, nor are there any objects that are sexual in nature or that change the nature of the images from children getting diapers changed to something objectively sexual.”

While “the framing of the photographs is a relevant consideration,” Fader says, “the
The framing here still makes it clear that the images are of children in the process of changing diapers.” And contrary to the majority’s claim that the girls’ “poses” are reminiscent of adult pornography, he adds: “The children are in the middle of changing diapers—a perfectly normal, non-sexual event—not posed in sexual positions. That an image of an adult posing in a similar manner could be seen as an objectively sexual image—perhaps seen as sexually because “The pose is unnatural for an adult in the normal course of daily life, or perhaps simply because of anatomical development. It is irrelevant, because these are images of babies, not adults.”

Fader says other “contextual elements” cited by the majority — including the similarity of the photos to one another, the fact that “they were all taken in a daycare center,” the fact that “they were all taken in the bathroom at the center where Ms. Turenne was secluded,” her initial statement that the photos had “no meaning” and her “implausible documentation-of-diaper-rash statement” — “were relevant to the jury’s consideration of Ms. Turenne’s likely purpose in taking and retaining the images.” They were therefore “proper considerations for the jury in determining whether Ms. Turenne exploited the children for her own benefit in connection with the child sexual abuse charges.” But the test the majority applied in upholding the child pornography convictions would have to be “objective,” making its motivation irrelevant.

“The only contextual element relevant to the jury’s understanding of what is depicted in the images themselves, to the extent it is unclear in any of the images, is that in seven of the eight images the children were on a changing table and in the eighth in a bathroom,” Fader writes. “But knowledge of the setting in which the photographs were taken does not add any element of objective sexuality, separate from Ms. Turenne’s subjective motivation. The other contextual elements identified by the majority speak to Ms. Turenne’s subjective motivation, not to what is depicted in the images themselves.”

To convict Turenne of the sexual abuse charges, the prosecution had to prove beyond a reasonable doubt that the photos constituted “exploitation of a minor,” meaning that she “took advantage of or made improper or unfair use of the child for… her own benefit.” That “benefit,” the prosecution argued, was “sexual gratification.” Fader agreed with the majority that “there was sufficient evidence for the jury to infer that Ms. Turenne took the eight photographs at issue for her own benefit.”

However, Watts disagreed with him on that point as well. She noted that the prosecution placed a lot of emphasis on Turenne’s sexual orientation, which Watts believes was wrongly taken into account in the verdict.

During Turenne’s trial, a prosecutor asked her if she was attracted to women. “I wouldn’t say attracted to women,” she replied. “I’m bisexual, I still don’t know what I like between men and women. But no children, no.”

The prosecution, which noted that all of the photos featured girls and presented testimony from a colleague who said Turenne had told her “that she was gay,” argued that her sexual orientation was relevant in assessing why she took the photos. The prosecution also noted that Turenne had adult pornography featuring both men and women on her phone.

Although the Maryland Supreme Court explicitly refused to consider that evidence, Watts argues that it played a significant role in the case. Turenne “was prejudiced by the admission of the evidence,” Watts says. And “with these circumstances removed, the remaining evidence is insufficient to support Ms. Turenne’s convictions for child sexual abuse.”

Watts suggests that Turenne’s explanation of her behavior is more plausible than her colleagues think. “Some of the photos show redness or dark spots—i.econsistent with diaper rash — near the genital area and/or in the crease of the buttocks, and one of them shows diaper cream in and around the crease of the buttocks,” she wrote. “Ms. Turenne testified that she took the photographs to prove that children had diaper rash before she began viewing them. While the jury apparently did not find this portion of Ms. Turenne’s testimony credible, the nature of the photographs and the circumstances under which they were taken do not, by themselves, prove that the photographs were taken for the purpose of sexual gratification.”

The majority noted that Turenne initially denied taking the photos, later said they had “no meaning,” and only offered the diaper rash explanation at her trial. But Watts found Turenne’s evasiveness and reticence understandable under the circumstances, even without accepting the prosecution’s theory of why she took the photos.

“Although the photographs were taken surreptitiously in violation of the daycare’s photography ban and Ms. Turenne initially denied taking them, these facts were not sufficient for a rational juror to infer that the photographs were taken for sexual gratification,” Watts wrote. “A rational juror could have inferred that Ms. Turenne took the photographs because she was afraid of being blamed for diaper rash and lied about taking the photographs because she knew it was against the center’s policy. A rational juror could also have inferred that Ms. Turenne took the photographs when she was alone with the children because she knew it was against the center’s policy… Without considering the evidence admitted at trial regarding Ms. Turenne’s sexual orientation and possession of adult pornography, no rational juror could have determined beyond a reasonable doubt based on the appearance of the photographs that they were taken for sexual gratification.”

Although Turenne did not challenge her sentence on appeal, Watts notes that “the trial court imposed a total sentence of 280 years in prison, with all but 126 years suspended, followed by 5 years of probation and lifetime registration as a sex offender.” While “criminal offenses against children are horrific and should be dealt with appropriately,” she says, “it is disproportionate and draconian to impose a total sentence of nearly 3 centuries in prison, with all but 126 years suspended, under the circumstances of this case.” Whatever you think of Turenne’s defense, that seems clearly true.