Brian Martens, who was arrested on Oct. 29 on charges he took part in taking and distributing pornographic pictures of his two daughters, has pleaded not guilty based on the fact he and his family are nudist and the pictures were part of a family portrait, the Sun Sentinel, reported.
Martens and his two daughters, aged 8 to 12 at the time the photos were taken, lived in the Sunsport Gardens Family Naturist Resort in Loxahatchee Groves, Fla., when Martens hired a professional photographer to take family portraits, according to ABC News.
The 53-year-old insists there's nothing pornographic about the pictures, and states they are regular family portraits of a naturist family, the Sentinel reported.
A Florida Judge found one of the images of a close up of one girls genitals to be suggestive enough to indict Martens, ABC News reported.
"Several of these photos the court has reviewed are lascivious," federal magistrate Judge Bill Matthewman said in court on Wednesday, ABC News reported. "... They are, in the court's opinion, sexually explicit."
The close-up photo in question was not taken by Martens himself, and instead by the photographer who was hired for the family portraits, Leslie Grey Vanaman, 44, who was also a previous resident of the nudist community before he was arrested earlier this year on charges of child pornography, the Sentinel reported.
It began when Federal agents from Homeland Security Investigations found inappropriate photos of Martens daughters on Vanaman's computer, along with those of other children, according to the Sentinel.
According to Assistant U.S. Attorney Brandy Brentari Galler, Martens was questioned in April after the photos were obtained and told investigators he did not know these photographs had been taken, adding that "He cried as he viewed the images," the Sentinel reported.
After being questioned, Martens told the agents he only gave permission for Vanaman to take naturist photos, according to the Sentinel.
After a deeper investigation of Vanaman's computer, a release signed by Martens was found showing he received more than 50 photographs that can be described as pornographic on various occasions of his three daughters, the Sentinel reported. All the pictures were taken between 2010 and 2012.
Vanaman, who owned A Shade of Grey Photography, is currently serving a 60-year prison sentence in a federal prison after he pleaded guilty to charges of receiving and possessing child pornography, including the photos of Martens' daughters, according to the Sentinel.
According to court records, he has been previously convicted of possessing child pornography in 2004 in the state of New Jersey, the Sentinel reported.
James Eisenberg, Martens' attorney, has agreed one of the photos, a close up of a girl's genital area, is child pornography, but stated Martens was not aware the photograph was taken and that Martens never gave his permission for such a photograph, the Sentinel reported.
According to prosecutors, the photographs, which have been deemed as not showing sexual activity or sexual abuse, contain much more disturbing images like one which shows the young girls with a black shawl in "sexually suggestive poses," while others are of the girls innocently baking cookies, the Sentinel reported.
The federal indictment released Wednesday said Martens did "persuade, induce and entice a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct," ABC News reported.
According to prosecutors, none of the images depict sexual acts, beside the close-up image in question and Eisenberg said all the other photos were normal for a family of nudists, according to ABC News.
"The girls have no clothes on ... but they're not doing anything of a sexual nature," Eisenberg, said in court on Wednesday, according to the Sentinel. "If they were young ladies who had clothing on, no one would consider them pornographic."
Eisenberg added that "totally nude ... is the normal state of all the people who live there. In the context that everybody in this family are naturists ... these photos are not lewd or pornographic in any way."
In emails between Vanaman, Martens and a third party, also found on Vanaman's computer, the three men discuss "the sensuality and sexuality" of the images, and Martens is quoted as writing about "using his daughters as a passport," and said they "opened doors" for him in the naturist community, Galler told the judge in court on Wednesday, according to the Sentinel.
The law states any image showing a child in a way designed to evoke a sexual response from an audience in considered child pornography and does not have to show or involve any explicit sexual activity, ABC News reported.
If convicted, Martens may face a 30-year prison sentence for producing child pornorgaphy, as well as an additional 20-year sentence of receiving child porn, ABC News reported.