A mother who took photos of her nudist husband in the presence of the couple’s undressed children with the intention of using them in separation proceedings has been spared a three-year jail term on appeal.

The woman had been found guilty in 2019 of producing the indecent images of the couple’s two minor children, aged three and one-and-a-half. She had been acquitted of separate defilement charges.

Those images, over 70 in all, featured her naked husband in the shower, in bed or even reading a book while in the presence of the children who were also sometimes undressed, occasionally touching the man’s private parts.

The situation inside the couple’s home came to light after the woman took up a job as a child support worker and opened up to her colleagues, telling them she was worried about her husband’s nudist habits which persisted even when the children were around.

She had expressed the intention to file for personal separation, saying her husband was violent, set in his ways and became nervous whenever she told him she was tired, following the birth of their first child.

When the relationship took a negative turn following the birth of their second child, the woman had started to take the photos, telling her husband that she was not including him in the pictures but was only focusing on the children.

In actual fact, she was compiling evidence which she hoped would speed up separation proceedings and secure her legal custody of the children.

The woman shared her troubles and plans with her colleagues and family paediatrician. Soon after, the matter was flagged to welfare agency Agenzija Appoġġ and the police, who pressed criminal charges against both husband and wife, with the proceedings being handled separately.

The mother appealed her conviction, arguing that the photos could not be deemed indecent in terms of law and that she lacked criminal intent.

A court of criminal appeal presided over by judge Giovanni Grixti threw out the first argument, stating that although “indecent” was subject to interpretation, the first court, “having vast experience in similar cases,” was correct in concluding that the naked images of the children touching their father were pornographic and thus indecent.

The motive behind such images was irrelevant, the court said.  

As for the second argument, the prosecution needed to prove the criminal intent which, in this case, was to show that the images had been produced for the purpose of sexual arousal.

That intent was to be taken in context and in its judgement the court reproduced longer excerpts of testimonies than the first court had, for the purpose of providing “a complete picture” of the case.

After dwelling at length upon “this very, very difficult issue,” Judge Grixti observed that the accused did not seem to have gone about trying to sell her portfolio of images or satisfy anyone’s curiosity, but had spoken of her intentions to use them as evidence against her husband.

Analysis by the court expert of the accused’s phone and other devices did not reveal any intention to share or publish those images.

In fact, she had sought to produce three copies of the images, one each for her lawyer, the police and the court.

Although those photos “are what they are,” the evidence put forward could not erase the very strong “lurking doubt” as to the accused’s criminal intent, the Court said.

Although the mother had tried to picture herself as ingenious and unfamiliar with the way things were done locally, the court remarked that she certainly knew what she was doing when compiling those images as evidence.

Yet the court could not explain how “a mother could tolerate such a situation and rather than take immediate, necessary steps, chose to snap one picture after another of her children as subjected to such an inexplicable level of indecency.”

Nonetheless, the fact that the accused had shown the photos to her colleagues and doctor and had taken a blatant risk by having them printed at a photo lab rather than use a home printer, showed that, on a level of probability, she lacked the necessary criminal intent.

The prosecution had not eliminated this serious doubt, which thus tipped the scales in favour of the appellant who was acquitted.

The court banned publication of all names and anything that could give away children's identity.

It also removed the order banning the mother from exercising a profession involving direct contact with minors, whilst ordering that the material evidence be sealed under court custody.

Lawyers Alfred Abela and Rene’ Darmanin assisted the appellant.