The case
Halfway through the hearing, lawyer Diederick van Rinsum takes one Playboy emerge. Shown is a blonde naked woman photographed from the side. “I just finished my second film. Good Cock, Bad Cock his name is,” he reads from the accompanying interview in the magazine.
The woman in the photo is a conceptual artist and filmmaker with the stage name Nelly Dansen. In the Playboy she is asked if she has a boyfriend. Dansen replies that it is no one’s business, but gives her email address and invites sugar daddies express themselves with a love letter. Van Rinsum: “That I would ever leave the… Playboy would cite in your court. I didn’t expect it.”
The lawyer represents 35-year-old artist Ben Lunato in this case. He is being prosecuted by the Public Prosecution Service for manufacturing and distributing nude photos of Nelly Dansen made with AI. One of the images circulating online shows a naked woman in a setting reminiscent of a laboratory or classroom. The woman has Dansen’s face, combined with bear ears. Next to her stands a bear-like figure with a drink that the woman pours.
Her physical integrity and privacy have clearly not been violated here
That lawyer Van Rinsum in the Amsterdam court with a Playboy from 2024 is to emphasize the point that Dansen himself also appears naked. Her “physical integrity and privacy have clearly not been violated here.”
The lawyer believes that the criminal case against his client should not be dealt with substantively at all and that the Public Prosecution Service should be declared inadmissible in advance. That is why he puts forward a so-called ‘preliminary inadmissibility defense’.
According to Van Rinsum, the Public Prosecution Service has not carefully weighed up interests and no reasonable public prosecutor can judge that Lunato’s prosecution serves a legitimate criminal purpose.
The counselor says he realizes that the legal bar is very high for the Public Prosecution Service to declare it inadmissible before the substantive hearing of a case begins. For example, it is possible if someone runs onto the track to prevent suicide and is then prosecuted for unlawfully entering the track.
As far as Van Rinsum is concerned, that high bar has been met in the case against Lunato: his client is an artist and enjoys artistic freedom. That is at stake with this prosecution, resulting in a ‘chilling effect‘ on other artists.
Lunato, an Englishman living in Amsterdam, also speaks for a large part of the hearing. He calls the prosecution an attack on the right of every person to make art. “I find it extremely unfair that the Public Prosecution Service believes it is in the public interest to prosecute me for making an image.”
The interpreter becomes confused when Lunato starts talking about Chris Jude, the asylum seeker suspected of murdering Lisa from Abcoude. Lunato says that on the evening the police took photos of his art portfolio, a young woman was assaulted in an attempted rape in the Bijlmer. Chris Jude is suspected of this. “I tell you this because I believe that the priorities of the Public Prosecution Service are completely out of balance.”
The artist then takes a statue of a naked black man from his bag with a large erection and a grimace. It’s supposed to represent Chris Jude. “I used AI to make his face.” At that moment, police judge Emel Biçer intervenes. “Your point is clear, there are more serious matters.”
Lunato is part of the Amsterdam artist collective KIRAC (Keeping It Real Art Critics), which likes to push the (artistic) boundaries and has previously ended up in court because of a film with sex scenes with the French writer Michel Houellebecq. A number of KIRAC members are present in the courtroom. Co-founder Stefan Ruitenbeek films the hearing. “It is completely devastating to your life to be accused of a sex crime,” Lunato told the judge.
Does your case need to move forward and if it needs to move forward, how? Those are the questions I have to answer now
Lawyer Van Rinsum points out that Dansen would have first shared the AI images that Lunato sent her on social media: that indicates consent. Only after she discovered that Lunato belonged to KIRAC did she report the crime.
During the hearing it appears that the police judge may wish to refer the case to a three-judge panel. The officer argues that they should then also rule on the inadmissibility defense. She therefore does not want to respond substantively to what Van Rinsum and Lunato argue.
“Should your case continue and if it has to continue: how? These are the questions I have to answer now. I withdraw from that,” the judge tells Lunato.
The judgment
Upon her return, she indicates that she will refer the criminal case to a multi-judge chamber. “I believe that your case, given its legal structure, should be considered by three judges.” And those three must assess whether the Public Prosecution Service can prosecute Lunato. “I understand that this lack of clarity is frustrating for you, but it is legally the right decision.”
It is not yet known when the case will come before the multi-judge chamber.
