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November 30, 2006 4:00 AM PST
Federal case may redefine child porn
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All of that makes the distinction between legal child photography and illegal child pornography a particularly subjective one. It may come down to, as the Justice Department's Alice Martin put it, seemingly ephemeral factors such as the poses the model strikes and the camera angles the photographer chooses.
"Prosecuting cases on this borderline presents difficult First Amendment problems," said Amy Adler, a New York University law professor who has written about pornography, culture and the law. "The sexy teenager is sort of a mainstream trope. It's very different from babies being molested, and child pornography law doesn't make a distinction."
Define illegal pose
In a 1986 case called U.S. v. Dost, a federal judge suggested a six-step method to evaluate the legality of images. Here's an excerpt from the opinion:
1. Whether the focal point of the visual depiction is on the child's genitalia or pubic area.
2. Whether the setting of the visual depiction is sexually suggestive.
3. Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child.
4. Whether the child is fully or partially clothed, or nude.
5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.
6. Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
That's no exaggeration: The same section of federal law punishes a pedophile who makes a video recording of a baby being molested, as well as someone who possesses an image of a 17-year-old striking an unlawfully racy pose.
The explanation for that lies in a criminal statute called 18 USC 2252A, which Pierson is accused of violating. Child pornography is defined as the "lascivious exhibition of the genitals or pubic area of any person" under 18 years old.
Until a 1994 case called U.S. v. Knox, judges interpreted that language to mean either images of nude minors or of minors having sex. In that case, however, the 3rd U.S. Circuit Court of Appeals extended that definition to include videotapes of girls in leotards, and upheld Stephen Knox's conviction on child pornography charges.
"The genitals and pubic area of the young girls...were certainly 'on display' as the camera focused for prolonged time intervals on close-up views of these body parts through their thin but opaque clothing. Additionally, the obvious purpose and inevitable effect of the videotape was to 'attract notice' specifically to the genitalia and pubic area. Applying the plain meaning of the term 'lascivious exhibition' leads to the conclusion that nudity or discernibility are not prerequisites for the occurrence of an exhibition within the meaning of the federal child pornography statute," the 3rd Circuit wrote.
Courts have also looked to a 1986 case called U.S. v. Dost for guidance on what's "lascivious" and what's not. Among the factors they evaluate: whether the focus is on the child's genitalia or pubic area; whether the image suggests sexual coyness; and whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
A crackdown's mixed results
Prosecutors have tried to target child modeling Web sites before, with mixed results.
In 2002, Colorado prosecutors charged James Grady with more than 719 felony charges--ranging from sexual exploitation of children to contributing to the delinquency of minors--for operating TrueTeenBabes.com. The Web site bills itself as "America's premier teen glamour publication" and sells subscriptions for access to nonnude shots of models between 13 and 17 years old.
TrueTeenBabes.com drew the attention of local television reporters, whose reporting sparked a police investigation. But a jury acquitted Grady, and he subsequently filed a lawsuit asking for $10 million in damages for wrongful arrest, according to the Rocky Mountain News. TrueTeenBabes.com is back online today.
In an unrelated prosecution of two Utah men, Matthew Duhamel and Charles Granere currently are facing federal criminal charges of child pornography. They're accused (click for PDF) of running a child modeling site--again, no nudity is alleged--that featured minors in lingerie.
They filed a joint motion in July, which was rejected, asking that the case be dismissed in part on First Amendment grounds. "It seems clear," the motion said, "that the genitals or pubic area of the person must be actually exposed or visible to fall within the proscription against exhibition."
The U.S. Congress tried to clear up some of the ambiguity around what is and what isn't legal but never actually enacted legislation.
In 2002, Rep. Mark Foley announced a bill called the Child Modeling Exploitation Prevention Act that would effectively ban the sale of photographs of minors. But under opposition from civil libertarians and commercial stock photo houses like Corbis, it never left committee. (Foley, of course, is the same politician who resigned in September after disclosures of inappropriate conversations with a teenage page.)
That leaves judges and juries faced with the difficult task of making distinctions between lawful and unlawful camera angles and facial expressions--an exercise that proves to be impossible to do without running afoul of the First Amendment.
"How do we distinguish pictures like these (on child modeling sites) from the everyday photos that our culture tolerates and even prizes?" said Adler, the NYU law professor. "For instance, who's modeling in Vogue? A lot of those people are 15 and in scantily clad or suggestive photos."
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here are desperate people trying to make money dancing on that line
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what can i get away with and still make millions of dollars from the pervs out there?
People have been using children model in all types of media for longer than anyone can remember. What next? Can parents no longer take pictures of their children? If the head is facing this direction, and the arm held just so... *poof* pornography! Has any of the people in the Bush administration actually see what kids where these day. Maybe we need to bring in all the clothes manufacturers on pornography charges as well.
Its not pornography if the kid is not naked or involved in sex. Unless the child feels exploited or the parents were not involved; these kids are just making a living.
Once you allow obscure laws to be passed, you lose control on how they are interpreted. Honestly, any photos like this could be your innocent family photos. How many people put those on the web?
Its not pornography because someone gets off on it. If that is the case then no one should leave their houses in the morning. I guess I should start suing every women in a short skirt for public displays of pornography...
they bear no responsibiity for allowing their children to so
photographed?
I'm sorry, but really, someone needs to let folks know that
parenting is a FULL TIME JOB. If you don't / won't / can't assume
responsibility for you child's welfare, then perhaps you shouldn't
have children.
to mention sincerity) when they choose to spend time and
resources to investigate and prosecute a case as absurd as this and
yet show virtually no interest in prosecuting former congressman
Tom Foley
is the only decision jurors make.
That reminds me old anecdote.
A person with problem comes to a doctor: he can't stop thinking about sex. After few questions, doctor decided to conduct simple test. He shows a picture with black circle on white background. "Oh! I see!! That's pond, there is couple in it and they are doing it!!!" replies promptly visitor. Intrigued doctor shows next picture with black square on it. The visitor reacts quickly: "That's bedroom window and the couple in there are doing it!!". Completely confused doctor shows him last picture with black triangle on it. Visitor doesn't think twice: "That's camping tent and couple inside are doing it!!!". Now totally lost doctor stops for a moment to think what to do next. Suddenly, his visitor's face becomes suspicious: "Doctor, where did you got such dirty pictures???". Lopata.
IOW, I think the prosecutors - not the photographer - needs to be checked.
people who take pictures of fully clothed kids in poses their
parents ordered.
It's not like there's anything else to work on. Except maybe
terrorism. Or illegal business pratcies. Or any one of a zillion other
things that are far more injurious to the public.
Seriously though... ***? So if I was a 15 yr old girl, in a bikini, laying on the beach with my legs spread open and some one happened to glance my way... could they be arrested for the same BS crap as this?
This is way to far... next thing you know, Sears will be indicted for taking pics of girls in their underwear for their catalogs.
This administration has just spiraled out of control...
I was looking at our photo scrapbook of our kids growing up and I saw my wife had some photo's in their of our kids nude, as babies.
That struck me as odd, because I would have never have taken such a photo. She thought that was ridiculous.
I have to agree, it is absurd. I've lived with it my whole life, so I don't know how absurd it is...
What if a perv does get off at looking at pictures of fully clothed children. I feel sorry for that guy... as for going after people who take photographs of fully clothed children...thats absurd.
We must, as a country, stop going after people for the thoughts that occur in other people's head.
If some weirdo gets off on looking at an old Buick, that doesn't mean I have to park my car in the garage!
As far as kids go, if they are clothed, and the parents have agreed, and the kids aren't forced or harmed... well, I say, this is a waste. At the very least, don't try to take vaguely worded legislation and make it apply. Write laws that are specific, and then if someone violates them, you'll have my support in going after the lawbreaker.
That's a very dangerous precendent.
Next you'll get busted by photographing your newborn baby (unless only its head can be seen). Oh, wait, there were already such cases.
Nude beaches next.
Non-nude beaches after that. How dare you to walk with bare midriff in plain view!
Then a pious Catholic checkout girl in your drugstore will refuse to ring the condoms you want to buy (and she will get away with that, because it's her CONSCIOUSNESS).
Then a pious Muslim checkout boy will refuse to ring a bottle of wine or beer you're buying.
Just let them...
Remember back to those news images of the late Jonbenet Ramsey, all dolled up with loads of makeup, lipstick, and vamping it up in those child beauty contests? Those images shocked a lot of people, to see a little kid dressed uo and trained to act like an adult, but nobody stooped so low as to call it pornographic.
Maybe this whle thing is just a cynical strategy to establish some courtroom precedent for convictions under the new "2257" law before the new Congress has a chance to throw the entire law out.
Or perhaps there's a team of federally-employed kiddie-porn surfers somewhere who have a quota to meet; but they haven't been finding any truly offensive material in a while so they are now resorting to going after young professionals.
If beauty and conversely ugliness is primarily in the eye of the beholder, then apparently we have some highly depraved individuals now working at the Department of Justice, that need to get a life.
Oh and don't get caught with a Sear childrens underware catalog
or sale circular.
will be banned from public display in the States as it might be
construed as child pornography.
- the made the burka
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by usrhlp
December 1, 2006 9:32 AM PST
- because have you seen some of the muslim women? i think id want them enforcing too!
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