Grandma Arrested for Child Porn

Monday, May 4th, 2009

And she’s suing.

Back in 2005, a Walmart worker in Pennsylvania reported 59-year-old Donna Dull to local authorities after she dropped off some film that included shots of her three-year-old granddaughter in and just out of the bath. Dull was arrested–roughly, she says–and charged with producing and distributing child pornography. The charges were dropped 15 months later when a Pennsylvania special prosecutor overruled the local DA. Only Dull, her attorney, and police and prosecutors have apparently seen the photos, which are now under seal.

In this follow-up article from the York Daily Record, state officials seem to be trying to reassure parents and grandparents that they have nothing to worry about–that you needn’t fret about having your life ruined and reputation destroyed by false child porn charges for taking nude pictures of your infant and toddler son or daughter. Problem is, their reassurances aren’t very convincing.

Christopher Moore, a special prosecutor in the York County District Attorney’s Office, is after “perverts, not parents.”

Moore was commenting on the “gray area” between the typical family picture of the 2-year-old getting a bath in the kitchen sink and a picture a pedophile may enjoy.

It can be the same picture, Moore said.

But, Moore added, that is not a reason for parents and grandparents to avoid taking those pictures…

“It’s not what the (child protection) law was designed for. Your rights are not restricted in any form by the law.”

But it appears that’s precisely what Dull was arrested for. And the DA in Dull’s case insists he was right. Or at least he’s pretty sure he was:

[District Attorney] Rebert said in Dull’s case, “What made them offensive was their graphic nature. A little girl with her bare butt showing, kind of looking over her shoulder.

“It’s a difficult distinction to make. What’s a cute butt and what’s pornographic?

“I think what she (Dull) did was stupid and in very poor judgment. It was an interesting case and I think we did the right thing.”

So because the photo could have been interpreted as pornographic by someone who was looking for child porn, arresting the woman and ruining her life (or at least severely disrupting it) was the “right thing” to do. From the description, we aren’t talking about splayed legs or exposed genitalia, here. It’s a kid’s butt, and a playful peer over the shoulder. I’m glad Special Prosecutor Moore overruled District Attorney Rebert, but that Dull was arrested in the first place puts the lie to Moore’s assertion that this sort of hysteria “is not a reason for parents and grandparents to avoid taking those pictures.” It most certainly is. Or at least getting them printed somewhere outside your home. Unless you consider an arrest and 15 months under the label of “accused child pornographer” to be harmless.

It only gets more confusing from there. Here’s the prosecutor who initially approved the charges against Dull:

David Cook, now in private practice . . . declined to say if he disagreed with Rebert’s decision to dismiss the charges.

He did say, “There was no legitimate purpose for those photographs. I would never pose my daughter or my step-daughter like that.

“It kind of boils down to a gut feeling. If it feels wrong, it probably is.”

That sounds . . . ambiguous. How are Pennsylvania residents supposed to follow the law if the state’s prosecutors can’t even agree on its application?

Here, once again, is Special Prosecutor Moore, again laying out yet more guidelines that are nearly impossible for anyone to follow:

“It’s a subjective versus objective standard,” Moore said. “You think it’s cute. Someone else might think different. That doesn’t make it a crime.

“Lots of sexual offenders use the Sears catalog to get off. That doesn’t make (the catalog) illegal.”

“It’s a reasonable person standard with the reasonable person being a juror,” Boyles said.

“And reasonable people can disagree,” Moore said. “That’s the gray area. That’s when it comes to us.”

Boyles and Moore also agreed that parents don’t need to worry unnecessarily.

“Family pictures are family pictures,” Boyles said.

“But if more of your pictures of your kids are of them naked rather than clothed, you might have a problem.”

So in sum, if you don’t want to get arrested and charged for taking nude photos of your infant or toddler, make sure you know what criteria your local prosecutor uses when navigating that “gray area” between a cute butt and a criminally alluring one (note: you probably don’t want to actually pose this question to your DA). Also, if you find yourself under investigation after dropping a roll of film off at the CVS, you might want to bake the prosecutor some cookies, since it appears that his “gut” will be the final arbiter of whether you’re a doting parent or an accused child pornographer.

Finally, even if the nude photos you’ve taken of your kids pass the clear-as-mud “cute butt,” “gut feeling,” and “reasonable people can disagree/that’s when it comes to us” tests, and are deemed innocent as a basket of puppies, you could still be in violation of the law if the state determines that the clothed to unclothed-but-innocent ratio in your family photo albums is inappropriate.

Got all that? Good. Because we promise, you really have nothing to worry about.

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66 Responses to “Grandma Arrested for Child Porn”

  1. #1 |  j.d. | 

    as an initial matter, I don’t know but few people who still have pictures printed up; everything is digital nowadays.

    That said, how in the hell are people with such thick skulls working in the courts? Not only are we burdened with a great deal of cops who cannot make sound judgments, but the prosecutors, too (not that this is new). We may have the best justice system on the planet, but that’s simply a characterization of mechanics. Entrusting it to idiots guarantees that only few people will be exposed to such a great system.

    What concerns me about this case is that, had the special prosecutor been of the same temperament as Rebert, this lady would still be in jail. Just a ‘gut feeling’.

  2. #2 |  paranoiastrksdp | 

    Why not arrest the guy at Wally World who construed the photo as child porn? Seems there’s your pederast.

  3. #3 |  parse | 

    I think it was Oliver Wendell Holmes, Jr. who said that courts delivered law, not justice. You really shouldn’t expect prosectors to make sound justice beyond “What does the law say.” And when the law doesn’t say anything clearly, then you won’t get a clear answer.

    While as Radley points out, none of us has seen the picture, all the legal experts in the case seem to agree that, according to the law, the same picture might or might not be child pornography. What elements should have tipped the scales of “sound judgement” in Dull’s favor? That she was grandmother? That she was a good person, that she was “normal”? The “perverts not parents” standard one prosecutor invokes is ludicrous. My understanding is that most sexual abuse is committed by family members–parents and perverts are not mutually exclusive. Do we really want police and prosecutors to act based on a “gut feeling” about whether the suspect is a pervert or not?

    The lesson of the story may well be that you cannot craft a child pornography law that won’t catch innocent people in its net, people whose image of a nude child isn’t motivated by sexual desire. Then you have to decide whether you’re willing to sanction the arrest of innocent people, hoping that like Dull they are released before they are convicted, or restrict yourself to criminalizing behavior rather than images.

  4. #4 |  Billy Beck | 

    “‘It’s a subjective versus objective standard,’ Moore said.”

    If it’s going to take more than that to make the point that “the rule of law” is utter bullshit, then I cannot imagine what it might be.

  5. #5 |  Chance | 

    “Why not arrest the guy at Wally World who construed the photo as child porn? Seems there’s your pederast.”

    That is interesting to me. I mean, presumably any photo stand worker who has developed pictures for more than a couple of weeks has seen pictures of naked babies. So for the worker to report this woman, it had to be one of the following:

    o Hyper-prude – Very possible, and the most likely cause, but what about those other pics he or she must have seen? Why not report all of them?
    o Personal grudge – Unlikely, since it seems like that would have been mentioned in the article.
    o Non-Personal Grudge – Possible. The photo guy dooesn’t like (insert group/race/sex/religion here). Grandma is in that group.
    o Sick joke – He or She wanted to ruin the life of somebody, anybody, just for a sociopathic goof. Plausible, but how likely?
    o The pics really were disturbing and inappropriate – just yesterday my wife saw a man touching his daughter in a way she found inapproriate, though it didn’t rise to the level of calling cops. Reasonable people can disagree. Perhaps these pictures were more than just a bare bottom the article claimed, I don’t know.

    To play devil’s advocate, this really can be a fuzzy area, and not everything is easy to place into a category of “this is always illegal” and “this is always legal”.

  6. #6 |  Trent McBride | 

    “It’s a reasonable person standard with the reasonable person being a juror,” Boyles said.

    “And reasonable people can disagree,” Moore said. “That’s the gray area. That’s when it comes to us.”

    Uh, no, the juror is the end of the line, and not the beginning.

  7. #7 |  Mike T | 

    In the eyes of a pervert, anything can be pornography. To guys like this, Ferrari’s website is probably like Playboy.

    Reasonable minds agree that the prosecutors involved were not being reasonable. To give them some benefit of the doubt, you’d have to see the world through the eyes of a pedophile wherein a little girl, naked in a bathtub, looking over her shoulder at her parents, is pornographic, not just a naked toddler being a naked toddler getting bathed.

  8. #8 |  Mike T | 

    Chance,

    There’s a simpler explanation. It’s illegal to not report child pornography. If the photo store worker shows any discretion that prosecutor finds disagreeable, guess whose ass is getting tossed on the fire along with the customer?

  9. #9 |  Mike Leatherwood | 

    If I recollect correctly, wasn’t there a case recently that determined simple nudes of children does not construe pornography? I just may be suffering from my weekend’s overindulgence, and am too lazy to go look it up.

  10. #10 |  Edwin Sheldon | 

    “It’s a difficult distinction to make. What’s a cute butt and what’s pornographic?

    Looks like the only pervert here is the DA!

    I keed, I keed!

  11. #11 |  Tokin42 | 

    I started civilian life off as a regional mgr for a company that ran the photo labs and studios for wal-mart so I’m getting a kick….yada,yada,yada.

    I’ve been waiting for Dave K to chime in on this thread, in the meantime here is a great article on this subject:
    http://www.popphoto.com/Features/How-a-Photo-Can-Ruin-Your-Life

    I’d also like to point out that the wal-mart studios used to take pics of naked babies in a washtub and it was a huge seller, I wonder if they still use that pose.

    While I still use photography as a hobby, I stopped using people as subjects decades ago. Not out of legal concersn, mostly because I just don’t like people.

  12. #12 |  Eric | 

    My 2 and a half year old boy got a pair of leprechaun socks for St. Patty’s Day from his great aunt. He was so excited about them that on St. Patrick’s Day he woke up, stripped naked, put on his socks, came in to our room to announce that he was dressed for the party (that would happen several hours later) and ready to go, and took off downstairs to start his day.

    We got a kick out of this and took a cute photograph of him standing in the family room with nothing but his leprechaun socks and a big grin on his face. We intend to order up a print of it and send it to his great aunt, but I guess we’d better print it at home and hand deliver it to avoid charges.

  13. #13 |  PogueMahone | 

    Back when I was a wee lad, my grandmother took 8mm motion pictures of me running around buck naked save a toy pistol, holster, and belt.

    Seems to me, today’s prosecutors would need to dig her up and charge her with not only child pornography, but with some kind of federal firearms charges as well. Oh, and shoot me, her, and our dog in the process.

    Cheers.

  14. #14 |  Gene | 

    @Mike T: There is no legal requirement or obligation to report child porn, at least at the federal level, and in most state jurisdictions that I’m aware of. Unless you can find a local statute that says otherwise, I’d say the clerk at the photo desk was just another respondent to the sexual predator hysteria.

  15. #15 |  Chance | 

    There’s a simpler explanation. It’s illegal to not report child pornography. If the photo store worker shows any discretion that prosecutor finds disagreeable, guess whose ass is getting tossed on the fire along with the customer?

    Understood, but I still have to ask about the other pictures this person has to have seen. Does he report them all? Since every parent I’ve ever met has this type picks, the worker has to have seen them. Why were they paranoid this time, but not all the others? Or did the DA fixate on this one report?

  16. #16 |  parse | 

    Since every parent I’ve ever met has this type picks, the worker has to have seen them. Why were they paranoid this time, but not all the others? Or did the DA fixate on this one report?

    Since we haven’t seen the pictures, it’s really hard to answer these questions, and even know what “type” pictures they were and whether every parent has “this type” or not. As Debbie Nathan has written, this is one of the problems journalists researching civil liberties issues around child porn have–since nobody, including journalists, is typically allowed to see the images, we have to rely on the word of police and prosecutors for what constitutes child pornography.

  17. #17 |  Will | 

    The woman is probability an amateur photographer and posed the girl in what she thought was an endearing pose. The DA most likely got a woody looking at the picture and there in was his proof it was pornographic. My theory.

  18. #18 |  Kristen | 

    Jesus chist. My parents probably have 10 pictures of my brother and I that could apprently get them arrested.

  19. #19 |  Dave Krueger | 

    They will make the world safe for children if they have to destroy every last adult (and many children) to do it (except for themselves, of course).

    The topic of child porn makes ordinary intelligent people (including most libertarians) into mindless sheep. That’s why it’s such a useful means to usurp people’s rights. You could gather all the people who seriously oppose ill-conceived child porn laws into one place and serve them lunch from McDonalds for under $10. And not a single one of them would be the kind of person who gets off on child porn. Even the legitimate porn industry, which is actually the primary target of many child porn laws don’t oppose child porn laws in principle except as it affects their particular industry (which it shouldn’t at all, of course).

    If the goal is to stop the trade in material that arouses people whose sexual interests we don’t approve of, the drug war will look like a Sunday picnic by comparison.

    I’ll start believing in child porn laws when they start to address injury to actual children and stop being just a universally endorsed blood-thirsty means to utterly destroy people, practically none of whom have any connection to the kind of child porn most people envision.

  20. #20 |  Boyd Durkin | 

    “I think what she (Dull) did was stupid and in very poor judgment.”

    Fixed it: I think what District Attorney Rebert did was stupid and in very poor judgment.

    @17 Kristen: Yes, they do. And, millions of parents don’t have any of these photos/memories out of fear.

    Outlawing steaks ’cause babies ain’t got teeth.

  21. #21 |  Ben | 

    If the goal is to stop the trade in material that arouses people whose sexual interests we don’t approve of, the drug war will look like a Sunday picnic by comparison.

    You know, I’ve thought this for a long time. Do people really think that pedos WANT to be attracted to kids? Wouldn’t it be much easier and far more acceptable just to be attracted to adults?

    There’s a lot more questions that I’m not even “supposed” to think about, like how much does sex abuse REALLY harm a child and how much of that harm comes from hand-wringers that freak out over the “dirty” act? (ie from a child’s point of view “the act was bad, so I must be bad too, not just the adult perpetrating it.”)

    When I was a little kid (like 5 years old, i don’t remember, but I’ve been told) I got caught playing doctor with a girl a few years older, 7 or 8 i’d say. There was no harm, except when her mother freaked out over me corrupting her daughter. At least that’s how the story goes.

    There’s no good answer here, but I think that people need to calm the f*ck down about a lot of things, including kids doing sexual things.

  22. #22 |  J sub D | 

    [District Attorney] Rebert said in Dull’s case, “What made them offensive was their graphic nature. A little girl with her bare butt showing, kind of looking over her shoulder.

    Uhh moron,
    It’s a three year old’s buttocks! Going after the Coppertone ads next?

  23. #23 |  J sub D | 

    Coppertone ad of a three year old girl with exposed butt [gasp!] looking over her shoulder

  24. #24 |  Dave Krueger | 

    The place nudity has in culture is a bit like discussing religion or abortion in the sense that if you believe that nudity is wrong, no further discussion is likely to produce anything of value.

    In general, I’m of the opinion that cultural attitudes toward nudity and sex are far more destructive than nudity and sex themselves. Some guy (or woman) getting off to a picture of a kid in a Sears catalog doesn’t do that kid harm any more or less than if the picture was of a kid in the bath tub taken by his mother. On that basis alone, Walmart shouldn’t be in the business of turning people in for taking pictures of their kids nor should government be fanning the flames of hysteria like they do. Remember that pesky idea known as the presumption of innocence? We don’t turn people in for owning a weapon so the cops can investigate to make sure they haven’t killed anyone. We don’t turn people in with out of state tags to make sure their car isn’t stolen. We don’t turn people in for carrying a lot of money to make sure they aren’t dealing drugs… Oh, wait. Forget that last one. It’s part of a different hysteria.

    If a nude picture were taken of me when I was a kid and circulated everywhere, my suffering would not be at the hands of some pervert locked in a closet masturbating. My suffering would come from the people around me, my friends, family, fellow schoolmates and church members.

  25. #25 |  parse | 

    You could gather all the people who seriously oppose ill-conceived child porn laws into one place and serve them lunch from McDonalds for under $10.

    What would a well-conceived child porn look like? Don’t existing obscenity laws create enough of a restriction on free expression to satisfy you?

  26. #26 |  Mike T | 

    @Mike T: There is no legal requirement or obligation to report child porn, at least at the federal level, and in most state jurisdictions that I’m aware of.

    Then you might want to read up on federal law because a quick Google search shows that there are very strict measures in place that cover, at the very least, ALL electronic communications. It most certainly does exist and ISPs can get into an unholy clusterfuck of trouble with the federal government if they find out about it, and don’t report it. A simple Google search also showed that several states have adopted similar measures for their own jurisdictions.

    There is also the fact that if these businesses simply destroyed the evidence they could be charged with destruction of evidence, obstruction of justice and a host of other offenses which photo workers don’t want to deal with. Not to mention the probability that some Eliot Spitzer wannabe at the local DA’s office will be in front of the media, condemning the store as a menace to the community.

  27. #27 |  Steve Verdon | 

    I have zero pictures of my son naked. When all this child porn stuff started coming out I told my wife, “No such pictures, ever.” The police, prosecutors, and child protective services are, in general, way too f*cking stupid on this to trust.

    We got a kick out of this and took a cute photograph of him standing in the family room with nothing but his leprechaun socks and a big grin on his face. We intend to order up a print of it and send it to his great aunt, but I guess we’d better print it at home and hand deliver it to avoid charges.

    To be quite honest, I’d destroy the digital image. If your computer is ever searched, for whatever reason, they could use that against you.

    As Debbie Nathan has written, this is one of the problems journalists researching civil liberties issues around child porn have–since nobody, including journalists, is typically allowed to see the images, we have to rely on the word of police and prosecutors for what constitutes child pornography.

    And we know how well that works. I mean the police and prosecutors never lie right? Dallas isn’t releasing people exonerated of crimes for which they spent decades in jail….oh wait. We’ve never seen a DA go off the rails and knowingly prosecute a group of young college athletes to win re-election…oh wait. We don’t have cops busting into bodegas and ripping them off and terrorizing the workers/owners…oh wait. We don’t have forensics “experts” using shoddy methods and doing sloppy work and putting people on death row…oh wait. There is more than enough evidence to suggest that the notion of only prosecutors and police can see the pictures is going to be problematic.

    They will make the world safe for children if they have to destroy every last adult (and many children) to do it (except for themselves, of course).

    Just thought this warranted repeating since it is likely true.

  28. #28 |  Dave Krueger | 

    #25 parse

    What would a well-conceived child porn look like? Don’t existing obscenity laws create enough of a restriction on free expression to satisfy you?

    I believe that any topic conceivable by the human mind is fair game for expression. I don’t see the obscenity exception in the First Amendment. Just too stupid, I guess. You’ll have to ask someone else about that.

    I do think some laws can be justified to protect children, but not when framed as a restriction on expression. Instead they could be based on right to privacy which puts control in the hands of the people who appear in the pictures and their legal guardians rather in the hands of the government.

    Do you believe in right to privacy?

  29. #29 |  Brandon Bowers | 

    I like this: “It’s not what the (child protection) law was designed for. Your rights are not restricted in any form by the law.”

    Unless we say they are.

  30. #30 |  Dave Krueger | 

    I think Steve Verdon makes the point quite well. In the end, it doesn’t matter if you can win, they can destroy you simply with the charge.

    And, once charged with child porn, you won’t have any friends. Everyone you know, family, associates, neighbors, will all begin to look back on every interaction they’ve had with you to analyze whether anything you ever said or did could be construed to be evidence that you were a “perv”.

  31. #31 |  howtowasteyourlife | 

    This is ridiculous. Who remembers that children’s sunblock with the image of the puppy dog playfully pulling down the young girl’s bathing suit and exposing her bare bottom? She was posed the same way this article describes the child being posed in her grandmother’s photographs!

    Apparently there’s a fine line between advertising and child pornography, if you go by what the DA says about the pose being provocative and something a pedophile would enjoy. I think someone needs to remind him that pedophiles are the creeps, not the parents or grandparents who take pictures of their children! Normal people don’t find images of children to be sexually provocative. Why should we have to stop taking pictures of our children because some pervert gets off on them?

    That’s like revoking everyone’s driver licenses because ONE guy got arrested for DUI, isn’t it?

  32. #32 |  Monday Links « The Cocktail Revolution | 

    [...] The American tradition of embarrassing your kids with naked baby pictures is under attack. [...]

  33. #33 |  Dave Krueger | 

    This case was about production and distribution, but with child porn, possession is all it takes. Possession laws are a problems because anything that can be possessed, can be planted. And some things can be possessed without any intent to commit a crime.

  34. #34 |  parse | 

    Dave Krueger, I think we’re actually on the same page. I thought from you remarks about people who oppose ill-conceived child porn law you were implying that there might be child porn laws that weren’t ill-conceived. I echo your support for an interpretation of the First Amendment untramelled by obscenity exceptions. I don’t see how you can keep “bad” people from looking at pictures of children without endangering both free expression as well as innocent folks like Granny Dull, and the energy spent fighting “child porn” would be better spent pursuing and prosecuting bad actors rather than bad images.

    Regarding your question about the right to privacy–are you suggesting that would extend to owning control over any and all images produced by any person of any person? Or is this something that would be limited to children? Or images made where the person depicted has an expectation of privacy? Because your idea sounds promising, but I’d like to understand better what you are proposing.

  35. #35 |  Cappy | 

    I find it interesting that the prosecutor implied a 3 year old child had a cute butt.

    Questions, questions.

  36. #36 |  Diane Lipson | 

    Its pretty simple – The worker at Walmarx, Uh, I mean Walmart, made the wrong call, and the worker and Walmart deserve to be sued nearly out of existence. The worker had no choice? She could’ve been prosecuted for the wrong decision? Bull. We all get prosecuted for the wrong call. It was Walmart’s responsibility to hire a reasonably intelligent person for the job, and then train them and give them guidelines, and written examples to work from when considering the problem – and maybe even supervision, there’s a novel idea. This obviously did not happen, and Walmart is obviously liable for the damage done to this person’s life. And if the worker/idiot can’t handle that, then get a different job. These things change ONLY for financial reasons. Make this mistake too expensive for Walmart to allow it to happen again.

  37. #37 |  Mike T | 

    Possession laws are a problems because anything that can be possessed, can be planted. And some things can be possessed without any intent to commit a crime.

    A while ago, I looked up the federal law covering possession because of an argument I saw on a blog where no one actually bothered to see what federal law says on the matter. Turns out that if you came into possession by accident and then either destroy it immediately or retain it to hand over to law enforcement, federal law actually blocks a prosecutor from bring charges against you for possession.

  38. #38 |  Mike T | 

    The worker had no choice? She could’ve been prosecuted for the wrong decision? Bull. We all get prosecuted for the wrong call.

    Here are some scenarios for you, Diane.

    Walmarx keeps copies on file in case they need to use them later as evidence: illegal possession.
    Walmarx destroys them without turning them over, and a prosecutor later finds a reason why they should have turned them over: destruction of evidence in a felony case.
    Walmarx actually prints them out and turns them over to the customer and a prosecutor later objects: *ding ding ding* felony production and distribution of child pornography for profit.

    In the last scenario, you know what happens? The Walmarx staff gets legally gangbanged by the media, DA and a US Attorney.

  39. #39 |  Marty | 

    kodak should sue the govt for killing what’s left of their business… I bet that lady never buys another roll of film!

  40. #40 |  Spleen | 

    “Lots of sexual offenders use the Sears catalog to get off.”

    I wonder if he polled them himself.

  41. #41 |  Dave Krueger | 

    parse,

    As a photographer, I know that people don’t have an unlimited right to privacy, nor should they. I think privacy issues are usually more a matter for civil courts where non-government plaintiffs bring suit, but there may be exceptions in some cases where civil liability can’t reach. The nice thing about civil court is that there has to be an actual plaintiff (ie: an actual identifiable injured party).

    As it stands now, despite past rulings by the SCOTUS, according to Title 18, 2256 the child in child porn doesn’t even have to be a real person. To me, if there’s no child, there’s no child exploitation.

    And I don’t believe for a minute that child porn leads to child rape anymore than adult porn leads to adult rape or Grand Theft Auto leads to murder.

  42. #42 |  Mike T | 

    And I don’t believe for a minute that child porn leads to child rape anymore than adult porn leads to adult rape or Grand Theft Auto leads to murder.

    It can in jurisdictions where the punishment for the possession of the porn and the actual act are nearly the same. That’s the government for you, putting the “perverse” in “perverse incentive structures.”

  43. #43 |  Kieffer | 

    It says a lot about the DA that his gut told him that a pic of a little kid naked was pornography.

  44. #44 |  seeker6079 | 

    I guess the answer is don’t take nude photos of kids. Not because of the law, but because your child will remember it each and every time you haul them out to show how cute (s)he was, and throw you in the scuzziest old age home they can find.

  45. #45 |  StanStevey | 

    It seems that these ‘child protection laws’ cause moe harm than good.

  46. #46 |  Dave Krueger | 

    #37 Mike T

    A while ago, I looked up the federal law covering possession because of an argument I saw on a blog where no one actually bothered to see what federal law says on the matter. Turns out that if you came into possession by accident and then either destroy it immediately or retain it to hand over to law enforcement, federal law actually blocks a prosecutor from bring charges against you for possession.

    I think the destruction route would be the preferable way to go. :)

    I watched a federal child porn possession appeal that my daughter argued before the 9th circuit several years ago. There was only one picture involved and one of the judges wanted to see it. The government attorney didn’t have it with her (since it really wasn’t relevant to the appeal), but she actually raised the issue with the judge about how best to get it to him without herself violating child porn laws. I thought that was funny as hell and a few other people in the audience laughed as well.

    I think there was a case a while back of a school teacher who was prosecuted because, as her students (kids) watched, she accidentally went to a web site that linked to another website that suddenly opened up a bunch of porn pop-ups on her her computer. Some people here might remember exactly what case it was. Not quite the same thing as you’re suggesting (it wasn’t child porn), but her defense that she didn’t intend to commit the crime wasn’t believed.

    I’m not sure if they eventually dropped the charges, but I think they made her life pretty miserable. When it comes to porn and children, no one believes you and prosecutors have lots of options to fry your ass. I’m not disputing what you say, since I don’t know the specifics of the provision you’re referring to. I just don’t trust it to provide much protection.

  47. #47 |  Ken | 

    A well conceived child porn law? That is a tough one.

    What about a picture that shows a toddler crying while being penetrated?
    Tied upside down with legs spread, a dildo inserted, and hot wax being dripped on her body?

    People certainly get bent out of shape waaay out of proportion thinking about someone looking at a picture of a child in an ‘impure’ manner.

    They also tend to overreact when kids act in a sexual way. I think one reason that prosecutors are so gung ho in cases like that one in Georgia where the 17 year old is in prison for getting a blowjob from a 15 year old is that if they admit a 15 year old girl can willingly have sex with someone near her own age then the same girl could have willing sex with an older person.

    Back to the original point, naked pictures alone should NEVER be considered grounds for criminal charges. If their is an actual sex act depicted, IE penetration involving the genitals, then we can start thinking about crime.
    This still leaves gray area, but far less than before.

  48. #48 |  Dave Krueger | 

    #47 Ken

    Back to the original point, naked pictures alone should NEVER be considered grounds for criminal charges. If their is an actual sex act depicted, IE penetration involving the genitals, then we can start thinking about crime.

    Nicely, though graphically, stated. You made the point better than any one else so far. It’s not an expression issue so much as assault issue.

  49. #49 |  Steve Verdon | 

    This is ridiculous. Who remembers that children’s sunblock with the image of the puppy dog playfully pulling down the young girl’s bathing suit and exposing her bare bottom?

    And she was topless too, and that pinky up against the cheek? Rather the coquette look. Arrest every executive at Coppertone. Now.

    Regarding your question about the right to privacy–are you suggesting that would extend to owning control over any and all images produced by any person of any person?

    I think for pictures taken in private this could be reasonable. For pictures taken in public (i.e. where you have no expectation of privacy) the answer should be no. For one thing, police officers could then use the law to further prevent discovery of bad activities. In other words, if one has an expectation of privacy, one could exert some degree of control over the image. As for the specifics of how this would work, I dunno, not my field.

  50. #50 |  Aspasia | 

    @Dave Kruger: “If the goal is to stop the trade in material that arouses people whose sexual interests we don’t approve of, the drug war will look like a Sunday picnic by comparison.”

    Hell, ask Max Hardcore. The adult industry has been complaining about this for YEARS but are dismissed by most people because they engage in that “dirty” “naughty” sex stuff. But then cases like this happen and those same people who cheer laws like this because they think it’s going to get rid of pornography realize that the law isn’t drawing much of a distinction between the general populace and pornography. It’s their turn this time. These laws are often a result of misplaced hysteria and the laws are purposely written to be extremely vague so that innocent people CAN be nabbed.

    That way, law enforcement agencies can say, “Look everyone! It’s working! We’re nabbing the evil doers!” Most of these anti-child porn laws are enforced against adult activities under that guise. The new additions to the USC 2257 laws are a perfect example.

  51. #51 |  parse | 

    Back to the original point, naked pictures alone should NEVER be considered grounds for criminal charges. If their is an actual sex act depicted, IE penetration involving the genitals, then we can start thinking about crime.

    Ceci n’est pas un pipe. Ceci n’est pas un actual sex act, either. It’s a depiction. What’s the point in making the depiction illegal?

  52. #52 |  JS | 

    To hell with the state. Its too late to fix. We need a revolution.

  53. #53 |  Ken | 

    Ceci n’est pas un pipe. Ceci n’est pas un actual sex act, either. It’s a depiction. What’s the point in making the depiction illegal?

    I was actually thinking more of a crime by the person depicted in the picture doing the unmentionable things to the child.
    If they are kind enough to provide photographic evidence it’s all to the good.
    As for making it a crime just to posses the pictures. Tricky. I don’t believe that just looking at this stuff makes you want to go out and rape kids.
    It seems much more likely that people who crave sex with children would like to look at pictures of same.
    The argument could be made that if someone likes that sort of thing maybe they are willing to act out on it, so the possession of the pictures should lead to a closer look.
    Of course, that is way too close to a creepy ‘pre-crimes’ vibe; and don’t even get started on things like lolicon.

    If my position is not too clear that may be because I really don’t know what my position is.

    I know I don’t think that pictures of nudity alone, no matter what age, should be criminal.

    If you have actual pictures of a child who has been sexually abused…..well, that is disturbing no matter what the motivation, but just because something is disturbing is no reason alone to make it a crime.

    I know I don’t think that lolicon or other artwork, even if it depicts the same sort of abuse of a child as the real photos, should be a crime.

    So, should possession of pictures of actual child abuse/rape be a crime? If the fictional representations should not, then why would/should the actual pictures be? They would certainly be evidence of a crime, at least for the persons depicted, but…..

    If I had to argue for criminal penalties I would say eliminate all for mere nudity, have none for artwork no matter what the subject matter, and for actual photographs of abuse, maybe a misdemeanor charge and confiscation….oh hell, I’ve already thought of several unintended consequences even of such relaxed rules.

    Maybe we could go after those who actually harm children and not worry so much about whether someone is ‘getting off’ inappropriately. Of course, just the definition of what is ‘harming children’ can be stretched to cause a lot of grief.

  54. #54 |  Dave Krueger | 

    This is a serious issue for me. I am pleasantly surprised to find so many people seemingly on the same page on this topic. Most discussions I see on this topic elicit a knee-jerk reaction that anyone who objects to child porn laws is as bad as a child abuser. I hate the willingness with which many people are willing to surrender First Amendment rights based on the theory that expression is dangerous and needs to be suppressed.

    There is no end to those who now mindlessly repeat back the words of Oliver Wendell Holmes about shouting fire in a crowded theater to justify an endless list of speech that is now not permitted. The biggest ally the government has in abolishing our rights is the typical U.S. citizen who believes that people can’t be trusted with freedom.

  55. #55 |  Ben | 

    Look at that, Radley, two green lights on fark in one day (this one and the 911 operator). Shame they didn’t cite the source.

  56. #56 |  Z | 

    So if someone somewhere may get pedophillic joy from a photo you take you’re a pedophile? Wow, that expands our view of civil and criminal law tremendously! For instance, if you sell your used car and someone somewhere gets hit by it while its piloted by a drunk, you’re on the hook. If I use a bank and then someone robs it, I could get arrested: after all my sweet sweet cash enticed them!

  57. #57 |  Dave Krueger | 

    #50 Aspasia

    Hell, ask Max Hardcore. The adult industry has been complaining about this for YEARS but are dismissed by most people because they engage in that “dirty” “naughty” sex stuff.

    I followed the FSC fight against the 2257 changes. In stead of saying these laws mostly target them, I should have said that these laws mostly affect them. What the law really does is allow the cops to prosecute child porn cases under child porn laws that don’t involve any child porn at all. The government likes this because finding real child pornographers is hard work.

    I actually tried at one point to get the ACLU to take up the issue, on behalf of artistic expression outside the commercial porn industry. I still find it interesting that 2257 requires such onerous record keeping requirements with such severe penalties, that only the commercial porn industry is actually likely to be able to afford the resources necessary to comply. In effect, 2257 sacrifices individually-produced explicit art leaving the highly lucrative commercial porn industry.

    However, I’m happy that the FSC challenged it, in any case, even though they lost. 2257 is a perfect example of a law pretending to one thing, but really being something completely different. It’s institutionalized persecution of protected speech simply because…. they can. It’s not like Joe Public is going to come to the rescue of the evil porn industry, protected speech pr not.

  58. #58 |  JOhn Davis | 

    Stupid lowlife cop. If that was my Grandma, there would not be a spot on this planet that stupid cop could hide from me.

    RT
    http://www.anonymity.ru.tc

  59. #59 |  HorsesAss.Org » Blog Archive » Open Thread | 

    [...] As a new father, this news item was extra terrifying for me. Permalink | Leave a Comment | RSS addthis_pub = ‘nietsdlog'; [...]

  60. #60 |  Frank | 

    What does “released” from the lawsuit mean? Did the defendants settle, or were motions to dismiss sucessfull?

  61. #61 |  Judi | 

    Well I guess we need to round up and corral all those thousands and thousands of parents who used to have pictures taken of their babies’ bare-bottoms on those fuzzy rugs in professional studios…(sigh…) and threatened to show them later in life to their teenager’s prospective date just to be funny.

    Oh and what about that horrible pornographic photo of Jody Foster taken when she was a toddler for the advertisement of Coppertone?

    Geesh…!@#$

  62. #62 |  Windy | 

    That wasn’t Jodie Foster, it was Natalie Wood in the first Coppertone ad with the Cocker pup.

  63. #63 |  JB | 

    Interestingly I once heard a woman from MI-5 in the UK being interviewed on the BBC. This was in relation to the bust of a world wide child pornography ring that she helped bring down. She stated that it was important to actually define child pornography and to explain why it is illegal. She stated that child pornography is videos and/or photographs of actual sex crimes involving children, i.e., children too young to consent or even to young to be able to have sex being raped, abused, tortured, molested, etc. She went on to state that in the UK they have no interest in prosecuting 15 year old boy having cybersex via a webcam. To them, that’s not child pornography. And this is coming from the UK which is considered more puritanical and prudish than other advanced industrial nations.

    In the US however, mere nudity of children can be considered pornographic and photographs/videos of young adults under the age of 18 engaged in completely normal natural and healthy consensual behavior (the average age of first sexual experience in the US is 14.9; the age of consent varies by state from 14 to 18; and most adolescent psychololgists believe the age should be 15) can be considered child pornography. The US law fails to conform to the international legal standard and the generally accepted definition. It goes beyond protecting children (a good thing) and instead enforces socially conservative “moral values”.

    Sooner or later, aspects of the US child pornography laws will be struck down when it applies only to nudity; or only to faked/created/manipulated images; or when it applies to young adults under the age of 18 engaged in consensual sexual behavior. The current laws violate Constitutional freedoms such as right of privacy; freedom of speech; freedom from cruel/unusual punishments; equal protection doctrine; right to a fair trial; freedom from state enforced religion, etc. But in the meantime the lives of individuals who have done no harm to themselves, or to society or to any other person will be utterly destoyed. Just today I read of a man who was sentenced to 24 years in prison for private photographs of young adults aged 16. If the behavior is not illegal and if the behavior is not harmful, how can photographs or videos of the act be illegal?

    The real problem is the incredible ignorance in American society when it comes to science in general and especially when it comes to psychology, sexuality, adolescent sexuality, etc. On top of this we have many people who believe that religious values should be imposed by law.

    Where is the organization that is lobbying to amend these unjust laws? Where is the organization that is fighting these unjust laws in the legal system? Where is the organization that is trying to educate the population and get the media to address sexuality in a rational way?

  64. #64 |  Dave Krueger | 

    Simple underage nudity is not illegal in the U.S. The pictures must show the minor engaging in “sexually explicit conduct”.

    But, a prosecutor out to make a name for himself isn’t exactly the best judge of what constitutes sexually explicit conduct. And, it makes very little difference whether, as a defendant, you win the case if your life is destroyed in the process.

    You’re correct that, not withstanding SCOTUS rulings of the past, child porn doesn’t even have to involve a child in its production. It just needs to look like a child. So, they’re clearly not out to protect children so much as persecute people whose sexual interests they find objectionable.

    One of the major problems with U.S. child porn laws, and U.S. law in general, is that it targets the legitimate industry. By simply saddling producers of adult porn with onerous record keeping requirements, they vastly broaden the range of potential targets which can be prosecuted under the child porn laws. In the U.S. you can go to prison for five years, not for producing child porn, but for simply not proving to the government’s satisfaction, that all your models were over age 18. It’s a codified instance of “guilty until proven innocent”.

    To government (especially prosecutors), us citizens are the enemy. They aren’t concerned with who they lock up as long as they lock up as many as they can. Their resume resembles the body count statistics from the Vietnam war where innocent villagers were slaughtered to inflate the numbers.

  65. #65 |  m mc | 

    this story hits home…police came into my home after being told we had child porn on the computer….the pictures were of my kids and grandkids first bath and diaper changes….one was over thirty years old…we was trying to get my photos on cds….long story short my husband is sitting in jail right now convicted of child porn….the arresting officer was there at the sentencing hearing with the pictures…he asked the others with him if they wanted to see the pictures….one was a civilian, husband of one officers present….i say that consitutes distributing what they call child porn at its finest…

    if the public continues to play into the hysteria, many more people will find themselves in jail…it is such a shame what this world is coming too…no common sence used at all in some of these cases…and you are right…the DA and police have no common sence at all when dealing with these cases…my poor grandmother would be facing charges as well if they find a 50 year old picture of me lying on a towel naked in the back yard mind you…for shame for shame…gosh what would happen if they found out that my mom bath me and my brother together and we had to share a room until i was almost a teenager….i need to stop before i am arrested too…..

  66. #66 |  Amun-Ra Sharif | 

    The law is the law and like playing a board game with a toddler, he/she will change the rules to their liking. I studied everything on the laws concerning this dilema, but it says “any medium containing underage persons in sexual or can be construde as such is a felony.” This may have been ok from the 70s on back, but it’s best for all of you parents/grandparents to not do as shuch anymore. As far as taking pictures with a digital camera and storing them on the computer, bad idea. According to the new law, that is posession of CP with intent to deseminate; which is very bad because that is several years for every count, plus registrating with Megan’s Law and severe risk of being killed by angry neighbors.

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