Kender’s short story about a pedophile featured what has been called “graphic descriptions” of the sexual abuse of children. The investigation of the writer has led to a fierce debate of what should and shouldn’t be allowed in writing, and whether or not the legal view of what constitutes child pornography can be extended to include the literary domain.

Judge Leo Kunman opened the trial by sending all minors out of the room. He also had officers spot-check the ID cards and age of the attending audience.

Prosecutor: The writer isn’t outside or above the law

Prosecutor Lea Pähkel said in her opening statement that the prosecutor’s office valued free speech and the right to express oneself very highly, but that these rights weren’t absolute. “The creation and distribution of child pornography endangers the safety of children, and this is illegal. The writer isn’t outside or above the law,” Pähkel said.

Kender’s argument that he wrote his story while in the United States and that it was uploaded to servers in the United Kingdom didn’t mean that the act in question was committed outside Estonian jurisdiction, the prosecutor pointed out. If a criminal act committed outside Estonia was also a criminal act according to Estonian law, Estonian authorities could prosecute, Pähkel said.

The prosecutor made it clear that the trial didn’t intend to judge Kender’s personality or the quality of his writing. “This is of no importance whatsoever. The production of child pornography, no matter how, is illegal,” she said.

Pähkel added that paragraph 178 of the Penal Code, based on which Kender was charged, didn’t specify that real-life victims had to be involved, and pointed out that people had been found guilty for the same crime as recently as Apr. 6 this year.

Defense: Kender has been charged arbitrarily

Kender’s lawyer Paul Keres said that Kender had been charged arbitrarily and treated unfairly, as the same text the prosecutor considered to be child pornography had been distributed and published by another 47 people, among them several well-known members of society.

Kender pointed to other literary works to demonstrate that he was being singled out arbitrarily. Both Vladimir Nabokov’s “Lolita” as well as the Marquis de Sade’s “120 Days of Sodom” were freely available, and Nabokov had even portrayed as pleasant what Kender himself portrayed as disgusting, the defense argued.

Keres argued that there was no basis for prosecution, as neither intent nor the matter of the place where the supposed crime was committed had been addressed. It wasn’t possible to prove that the defendant had intended to create child pornography, Keres said.

Kender pleaded not guilty, and added that he didn’t understand in what way his work was supposed to be child pornography.

After a short break the trial will continue behind closed doors. Prosecutor Lea Pähkel had demanded a closed trial for reasons of morality earlier this year.