The Free Press, Mankato, MN

November 30, 2012

Update: County attorney won't appeal ruling in coach's child porn case


The Free Press

MANKATO — A judge has dismissed child pornography charges against Minnesota State University¹s head football coach saying videos he made of his children dancing naked were innocent and protected by the First and 14th Amendments to the Constitution.

Complete ruling here.

Charges of creating and possessing child pornography were filed against Todd Hoffner, 46, in August after MSU officials found videos on his university-issued cellphone when he turned it in for repair. Assistant Blue Earth County Attorney Mike Hanson said two videos found on the phone showed one of Hoffner¹s children masturbating and all three of them, a son and two daughters between the ages of 5 and 9, performing a lewd skit.

After watching the videos and completing a "painstaking review" of reports completed by a Blue Earth County social worker, who did her own investigation and concluded Hoffner¹s children hadn¹t been sexually abused, District Court Judge Krista Jass granted Hoffner¹s motion to dismiss the charges for lack of probable cause.

Jass said it was clear in the video that the children were not being lewd, Hoffner did not know what type of skit they were going to perform when they asked him to make a video and that Hoffner wasn¹t directing the children in any way.

"In fact, none of the children¹s actions are age-inappropriate," Jass said in an order, which included a 25-page memorandum explaining the order, released Friday afternoon. "They acted as any child, acutely aware of his/her nakedness, would act -- playful and silly.

"Moreover, (Hanson) has not presented any evidence tending to show that (Hoffner) recorded his children in furtherance of his own prurient sexual interests or because he intended to distribute the videos outside the home to pedophiles."

In a written news release, Assistant Blue Earth County Attorney Mike Hanson said he does not plan to appeal the ruling. He also said he doesn¹t plan to comment on the case beyond what was in his release.

"Our office was trying to enforce a statute enacted to protect children," Hanson¹s release said. "No matter what the prosecutor does in a controversial case with a high-profile suspect, they will be criticized. We do not go looking for cases like this, they are brought to us.

"While we do not agree with (Jass') decision to dismiss the case, we accept it. Enough media attention has been devoted to this case and we do not plan to make any further comment."

Hoffner will remain on leave from his coaching position for now, said Dan Benson, MSU director of media relations. Despite the disruption caused by Hoffner being placed on paid leave before the season started, the university¹s football team is 12-0 and will host the national quarterfinals Saturday.

"There is no change in his status," Benson said. "There is a pending university investigation, so we can¹t comment further."

A press conference for Hoffner was scheduled for 4 p.m. Friday at Maschka, Riedy & Ries, the law firm representing Hoffner.

Shortly after Hoffner was arrested at his home in Eagle Lake and charged, his wife, Melodee, made a public statement saying she supported him. As a high school counselor, she said she was confident her children hadn¹t been mistreated and her husband hadn¹t done anything wrong.

"I hope someone with authority will take a new look at this and see it for what it is," she said during a news conference in August.

There were meetings between Hoffner¹s attorney, Jim Fleming, Blue Earth County Attorney Ross Arneson and Hanson after Blue Earth County Human Services completed an investigation with the Hoffner children and found no evidence of sexual abuse. Arneson and Hanson still declined to dismiss the charges, saying a jury should decide if the videos contained child pornography.

Jass' ruling dismisses the charges without a trial.

She noted in her memorandum that any concern Hanson had that a pedophile could obtain the videos and use them for sexual stimulation was genuine. "But the fact that a pedophile may find the images sexually appealing or arousing does not make the images pornographic."

She also made it clear that she understands parents have varying opinions about child nudity. But Jass also said what happens in a private home is not the government's business. Federal court rulings have said that child nudity is protected free speech as long as the nudity isn¹t pornographic or obscene.

"For some parents, allowing a child to run around naked at home is perfectly natural, an expression of freedom that represents the spirit of childhood," Jass said in her memorandum. "But for others, unclad bodies are a source of discomfort, an affront to civility and a potentially dangerous attraction for pedophiles. These clashing sensibilities can create conflict, even when the nudity in question takes place at home. Absent harm to the children, it is not for the state to take a position on these divergent viewpoints, but to preserve the fundamental privacy interests of the family.

"So long as the children remain unharmed and the parents have no intent to exploit or depict their children in an overtly lewd or sexualized manner, the First and Fourteenth Amendments guarantee parents the right to photograph or video record their children in a state of nudity without fear of criminal prosecution."