Child Pornography and the Baby-In-The-Bathtub Cases

[leZilla]

Every time I see the coppertone baby getting it's bottom pulled down by the puppy I think of this thread.

 

[Karen Kraft]

Every time I see the coppertone baby getting it's bottom pulled down by the puppy I think of this thread.

So does she.

Now in her early 90s, she still loves dogs.

Film at 11.

 

[Guest]

I was there, OLOTH, I remember. It didn't stop me from covering myself up whenever children came too close, though.

LOL. Well, standing too close to them is another story entirely. It was cute seeing them laughing and splashing in the pool, but it's perfectly reasonable (as a responsible adult) to keep them out of your personal space bubble.

 

[Guest]

That and Germans let thier children run around almost completely unrestrained and undisciplined until they're almost adults.

Perhaps we shouldn't look to the Germans for examples of what is prudent?

Dunno where you get your information, but I'm pretty fucking sure that first sentence is completely and absolutely wrong.

 

[Pookie]

Actually, it seems that you just want to fight, but you didn't read either of the case opinions cited in full in this thread. I'm quite sure I know what I am talking about. As for you? You just want to derail the discussion -- just as you used to with spelling errors and such. But don't let me stop you -- it's plain to see that you are much smarter than the Supreme Court justices who wrote the opinions. Who knows, maybe you will get nominated to the Court one day.

No, it looks like you were winging this all along. The cases you spammed in this thread have no effect on what I'm posting. You're quite sure you know what you're talking about? Sorry, Skyler. You didn't even know the law.

 

[Pookie]

Much of what you say in THIS post is quite true. The Dost factors have been followed and ignored by various courts. While I agree that there is some subjective slip-room for State judges in both the CP and Obscenity standards, I still contend that there is much less in CP, insofar as it excludes "community standards" and how the material may affect perverts (except, of course, for S.D. O'Connor's minority opinion statement.

Again, the Dost standards are as subjective as anything else, no matter whether they're ignored or not. While there certainly are more objective measures available for child porn, there is still a very gray area that is left up to subjective interpretation. There is no objective legal definition for "lascivious exhibition". It's up to each community to decide.

It's funny: I read this post after I read your second post. As I had not responded to this one (I was at the dentist getting two teeth fixed - ugh!), what was the purpose of the second post? Chica Terrorist Flaming? LOL

I missed that post before. The screenplay magically went from hugging to sex. After looking back, it was clear you were just posting stuff and spamming cases to try to look knowledgeable. It's obvious that you're not. You didn't even quote the legal definition of child porn.

I don't care. Mind you, in a court of law any of the opinions stated in this thread could be argued by one side or the other. But I think the entire thrust of this thread was simply that the enforcement people often apply some ersatz (sp?) Miller Test when taking away grannies' baby-in-the-bathtub pictures, and I was commenting that sometimes there is a judge who understands the law and can apply the correct test to the facts of the case at bar. That's all.

You don't care? You have a funny way of "not caring", Skyler.

 

[Pookie]

Every time I see the coppertone baby getting it's bottom pulled down by the puppy I think of this thread.

I believe that was a 3 year old Jodi Foster. Now you'll think of coppertone whenever you see her.

 

[Mrs.H]

http://www.buddelbini.de/gfx/blechschilder/aa120a.jpg

Every time I see the coppertone baby getting it's bottom pulled down by the puppy I think of this thread.

 

[Karen Kraft]

[sniping the crap] Sorry, Skyler. You didn't even know the law.

Just as I thought. You are still into this Karen Kraft is an alt deal. You are so full of shit. You never read the cases on point, you just came into the thread to spew your "Skyler" bullshit. Fuck off.

 

[Karen Kraft]

[blah blah Skyler.

Fuck off.

 

[Karen Kraft]

Thanks to all the people who took this thread seriously. It is unfortunate that some cheap whore like "Pookie" who is actually just an alt for you-know-who made it a point to ruin it for everyone. Well, at least she showed her ignorance by a total lack of understanding of the law.

She just launched the old attack, popularized by the fatties on here when I first arrived many years ago. I doubt that she ever had any interest in the thread other than to tell everyone that the little terrorist chica is somehow right. What a waste of bandwidth.

Useless whore.

 

[Fantasies_only]

First, some background materials for those who may not know the definitions of the terms used here:

The First Amendment to the United States Constitution prohibits both the federal and all state governments, including counties and cities, from abridging the right of the people to enjoy free expression: “speech.”

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Over the years, each of these words has been defined by cases heard by the Supreme Court of the United States and other courts of federal or state jurisdiction; suffice it to say, wearing a tee shirt that says, “Fuck The Draft” is protected speech – now generally called “speech and expression.”

Obscenity is also speech or expression. However, the First Amendment does not protect obscenity, which means the Congress and all state and local authorities may pass laws to prohibit it, which they generally do.

Unlike obscenity, pornography is “protected speech or expression,” just like “Fuck The Draft” is protected, but, like commercial speech, it is subject to reasonable time, place, and manner restrictions to protect society from violations of local community standards.

Child Pornography is not obscenity, but it is treated the same as obscenity in that it is 100% illegal. Any and all federal and state jurisdictions are permitted to outlaw it, and international agreements are reached by many nations to do just that. The initial reason for the ban on child pornography was to protect the actors/ models/ subjects of the child pornography from exploitation by those creating the image(s). That is why so-called “virtual child pornography,” which involves no real children at all, but only computer-generated drawings, etc., are considered pornography (quasi-protected speech), not “child pornography.” Why? No child was involved in the creation of the imagery, and protecting the actors, models, subjects, etc. was the sole purpose of outlawing that kind of material.

However, some law enforcement people confuse the definition of “child pornography” with the definition of “obscenity.” This is where the legal problem lies.

OBSCENITY:
OBSCENE, OBSCENITY - Such indecency as is calculated to promote the violation of the law and the general corruption of morals.

The exhibition of an obscene picture is an indictable offence at common law, although not charged to have been exhibited in public, if it be averred that the picture was exhibited to sundry persons for money.

For something to be "obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find (1) that the work appeals predominantly to "prurient" interest; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value.

An appeal to "prurient" interest is an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.

The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, or the prurient interest of members of a deviant sexual group, as the case might be.

The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences.

Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment which must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.

In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if the material was intended to appeal to the prurient interest of such a group.

The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals measured against whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of candor as to be clearly offensive.

Contemporary community standards, as stated before, are those established by what is generally accepted in the community as a whole; that is to say, by society at large or people in general, and not by what some groups of persons may believe the community as a whole ought to accept or refuse to accept. It is a matter of common knowledge that customs change and that the community as a whole may from time to time find acceptable that which was formerly unacceptable.

The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct.

All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met the material would not be obscene within the meaning of the law.

CHILD PORNOGRAPHY:
a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or
(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

Note that while “child pornography” is “treated” as obscenity in terms of its prohibition, the test to see if material constitutes child pornography is quite different from the test for obscene materials. With obscenity, the question is whether the material might appeal predominantly to "prurient" interests. Thus, the fact that someone who is a pervert might enjoy looking at the material is important when it comes to obscenity. But remember, “child pornography” is not obscenity. That’s why there is a more specific definition, having nothing to do with the kind of person who would find the material titillating. The definition of child pornography describes certain kinds of materials – they are unprotected whether they appeal to nobody at all, to everyone, or to perverts. It is very strict in its definition and makes no mention of contemporary community standards, etc. If material meets the definition of child pornography, it IS child pornography – period. The mere possession of such material is prohibited, irrespective of the purpose for such possession or the effect it might have on anybody. For example, it is illegal for some assistant district attorneys to mail such pictures to the Center for Missing and Exploited Children. They must send them through special law-enforcement channels, since the Center is not a public agency, etc.

In summary:

Child pornography is based on what is seen in the material.

Obscenity is based on whether it appears to perverts.

The problem is that police forces and their district attorney counterparts tend to screw this up, (particularly around D.A. election time), due to the overwhelming appeal of a strong stance on protecting children. It's like being strongly in favor of honesty: few would challenge or debate the position.

Thus, many people have been charged with trafficking in child pornography “because picture A or picture B would appeal to a pedophile.” These cases are commonly referred to as “Baby-In-The-Bathtub Child Pornography cases.”


Example:

Federal judge orders nude photos of grandkids returned to grandmother

By The Associated Press
06.20.01

NEWARK, N.J. — Nude pictures an Essex County grandmother took of her granddaughters cannot be considered child pornography and must be returned to the woman, a federal judge has ruled.

U.S. District Judge Dickinson R. Debevoise also found, however, that Essex prosecutors and Montclair police acted in good faith in prosecuting Marian Rubin and cannot be sued for monetary damages.

Rubin's lawyer, Jeffrey E. Fogel, said his client was satisfied with the ruling because she mainly wanted the pictures back.

"The state has no right to engage in censorship when there's no evidence that a crime has been committed," Fogel said yesterday.

An appeal was unlikely, said county lawyer Robert C. Scrivo.

Authorities maintained the photographs were contraband, arguing that the images "would provide considerable interest and excitement for a pedophile observer" in violation of state law.

Debevoise disagreed. "The photographs have been reviewed and it cannot be concluded that they were taken by plaintiff for the purpose of sexual stimulation or gratification," he wrote.

Found at:
http://www.firstamendmentcenter.org/news.aspx?id=4937

I'm surprised I didn't find this thread earlier.
You mention free speech in art, free commercial speech, and freedom of the press.
If UNICEF had their way, this would put hentai, anime, and manga lovers (not to mention the adult game industry) in jeopardy.
The Japanese government last year banned the selling and distribution of lolicon and lolicon products, but not the possession of them.
This loophole will be closed at an unknown date.
UNICEF (Japanese branch) is the main voice in this protest and also wants to ban manga and games featuring children in sexually violent or degrading situations (May 2008).
Canada has also closed this loophole in virtual child porn (March 2008), as lolicon was cited as being artistic, and therefore out of reach of the law.
Britain has recently outlawed hentai type lolicon (April 2008), but may not include softcore ecchi in the ban.

Sexual child avatars in cyberspace such as Second Life, has also been banned by several European countries (throughout 2007).

Does the constitution really apply anymore (including the right to privacy)?

By the way, I was wondering what the difference between fanservice that includes nudity and ecchi is.

 

[Fantasies_only]

Thanks to all the people who took this thread seriously. It is unfortunate that some cheap whore like "Pookie" who is actually just an alt for you-know-who made it a point to ruin it for everyone. Well, at least she showed her ignorance by a total lack of understanding of the law.

She just launched the old attack, popularized by the fatties on here when I first arrived many years ago. I doubt that she ever had any interest in the thread other than to tell everyone that the little terrorist chica is somehow right. What a waste of bandwidth.

Useless whore.

If you meant me, I never even saw this thread before and have not changed my username since I came here in 2006, and I'm a guy.

 

[Karen Kraft]

I'm surprised I didn't find this thread earlier.
You mention free speech in art, free commercial speech, and freedom of the press.
If UNICEF had their way, this would put hentai, anime, and manga lovers (not to mention the adult game industry) in jeopardy.
The Japanese government last year banned the selling and distribution of lolicon and lolicon products, but not the possession of them.
This loophole will be closed at an unknown date.
UNICEF (Japanese branch) is the main voice in this protest and also wants to ban manga and games featuring children in sexually violent or degrading situations (May 2008).
Canada has also closed this loophole in virtual child porn (March 2008), as lolicon was cited as being artistic, and therefore out of reach of the law.
Britain has recently outlawed hentai type lolicon (April 2008), but may not include softcore ecchi in the ban.

Sexual child avatars in cyberspace such as Second Life, has also been banned by several European countries (throughout 2007).

Does the constitution really apply anymore (including the right to privacy)?

By the way, I was wondering what the difference between fanservice that includes nudity and ecchi is.

It boils down to this: The U.S. Constitution only applies to America and places subject to the laws of the United States. The right to "privacy" is only found in the penumbra of other rights. Local jurisdictions still have the right to set reasonable time, place, and manner restrictions on commercial speech, including nude cartoons. Japan might very well be justified in outlawing that sort of thing -- first, I know nothing of their culture; and second, what they do there is up to them.

 

[Fantasies_only]

It boils down to this: The U.S. Constitution only applies to America and places subject to the laws of the United States. The right to "privacy" is only found in the penumbra of other rights. Local jurisdictions still have the right to set reasonable time, place, and manner restrictions on commercial speech, including nude cartoons. Japan might very well be justified in outlawing that sort of thing -- first, I know nothing of their culture; and second, what they do there is up to them.

I agree with you that the U.S. has it's own laws, but an exception should be made when other countries affect us (Internet importers and auctions).

We made a law prohibiting the intention to have sex with a minor when traveling to countries where the age of consent is lower.
Why can't Europe do something similar to imports (I mean allowing travel to and possesion of lolicon in America)?

 

[Karen Kraft]

I agree with you that the U.S. has it's own laws, but an exception should be made when other countries affect us (Internet importers and auctions).

We made a law prohibiting the intention to have sex with a minor when traveling to countries where the age of consent is lower.
Why can't Europe do something similar to imports?

The answer to that question is way beyond me. I have no idea.

 

[Fantasies_only]

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

This is not so.
This is in direct violation of freedom of the press (Howard Stern testifies), so it was noted (you can look this up if you want) that sexual imagery in literature is protected by free speech, photographs do not have such a luxury (case: Playboy lingerie calendar).

Lolicon isn't considered child porn or virtual child porn in America, so there's the exception.

http://www.buddelbini.de/gfx/blechschilder/aa120a.jpg

This is the old version.
In the 80s and again in the 90s, she was revamped to fit the times.
In 2000 a giant billboard was put up where families vacation, and a year later there were complaints about either the objectionable content, obstruction of view, a child distraction, or just a plain old eyesore.
Nothing was said about any under age sexual nature though.

 

[glamorilla]

First, some background materials for those who may not know the definitions of the terms used here:

The First Amendment to the United States Constitution prohibits both the federal and all state governments, including counties and cities, from abridging the right of the people to enjoy free expression: “speech.”

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Over the years, each of these words has been defined by cases heard by the Supreme Court of the United States and other courts of federal or state jurisdiction; suffice it to say, wearing a tee shirt that says, “Fuck The Draft” is protected speech – now generally called “speech and expression.”

Obscenity is also speech or expression. However, the First Amendment does not protect obscenity, which means the Congress and all state and local authorities may pass laws to prohibit it, which they generally do.

Unlike obscenity, pornography is “protected speech or expression,” just like “Fuck The Draft” is protected, but, like commercial speech, it is subject to reasonable time, place, and manner restrictions to protect society from violations of local community standards.

Child Pornography is not obscenity, but it is treated the same as obscenity in that it is 100% illegal. Any and all federal and state jurisdictions are permitted to outlaw it, and international agreements are reached by many nations to do just that. The initial reason for the ban on child pornography was to protect the actors/ models/ subjects of the child pornography from exploitation by those creating the image(s). That is why so-called “virtual child pornography,” which involves no real children at all, but only computer-generated drawings, etc., are considered pornography (quasi-protected speech), not “child pornography.” Why? No child was involved in the creation of the imagery, and protecting the actors, models, subjects, etc. was the sole purpose of outlawing that kind of material.

However, some law enforcement people confuse the definition of “child pornography” with the definition of “obscenity.” This is where the legal problem lies.

OBSCENITY:
OBSCENE, OBSCENITY - Such indecency as is calculated to promote the violation of the law and the general corruption of morals.

The exhibition of an obscene picture is an indictable offence at common law, although not charged to have been exhibited in public, if it be averred that the picture was exhibited to sundry persons for money.

For something to be "obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find (1) that the work appeals predominantly to "prurient" interest; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value.

An appeal to "prurient" interest is an appeal to a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.

The first test to be applied, therefore, in determining whether given material is obscene, is whether the predominant theme or purpose of the material, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole, or the prurient interest of members of a deviant sexual group, as the case might be.

The "predominant theme or purpose of the material, when viewed as a whole," means the main or principal thrust of the material when assessed in its entirety and on the basis of its total effect, and not on the basis of incidental themes or isolated passages or sequences.

Whether the predominant theme or purpose of the material is an appeal to the prurient interest of the "average person of the community as a whole" is a judgment which must be made in the light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and interest in, sex. Contemporary community standards, in turn, are set by what is accepted in the community as a whole; that is to say, by society at large or people in general. So, obscenity is not a matter of individual taste and the question is not how the material impresses an individual juror; rather, as stated before, the test is how the average person of the community as a whole would view the material.

In addition to considering the average or normal person, the prurient appeal requirement may also be assessed in terms of the sexual interest of a clearly defined deviant sexual group if the material was intended to appeal to the prurient interest of such a group.

The second test to be applied in determining whether given material is obscene is whether it depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; excretory functions; or lewd exhibition of the genitals measured against whether the material is patently offensive by contemporary community standards; that is, whether it so exceeds the generally accepted limits of candor as to be clearly offensive.

Contemporary community standards, as stated before, are those established by what is generally accepted in the community as a whole; that is to say, by society at large or people in general, and not by what some groups of persons may believe the community as a whole ought to accept or refuse to accept. It is a matter of common knowledge that customs change and that the community as a whole may from time to time find acceptable that which was formerly unacceptable.

The third test to be applied in determining whether given material is obscene is whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value. An item may have serious value in one or more of these areas even though it portrays explicit sexual conduct.

All three of these tests must be met before the material in question can be found to be obscene. If any one of them is not met the material would not be obscene within the meaning of the law.

CHILD PORNOGRAPHY:
a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or
(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

Note that while “child pornography” is “treated” as obscenity in terms of its prohibition, the test to see if material constitutes child pornography is quite different from the test for obscene materials. With obscenity, the question is whether the material might appeal predominantly to "prurient" interests. Thus, the fact that someone who is a pervert might enjoy looking at the material is important when it comes to obscenity. But remember, “child pornography” is not obscenity. That’s why there is a more specific definition, having nothing to do with the kind of person who would find the material titillating. The definition of child pornography describes certain kinds of materials – they are unprotected whether they appeal to nobody at all, to everyone, or to perverts. It is very strict in its definition and makes no mention of contemporary community standards, etc. If material meets the definition of child pornography, it IS child pornography – period. The mere possession of such material is prohibited, irrespective of the purpose for such possession or the effect it might have on anybody. For example, it is illegal for some assistant district attorneys to mail such pictures to the Center for Missing and Exploited Children. They must send them through special law-enforcement channels, since the Center is not a public agency, etc.

In summary:

Child pornography is based on what is seen in the material.

Obscenity is based on whether it appears to perverts.

The problem is that police forces and their district attorney counterparts tend to screw this up, (particularly around D.A. election time), due to the overwhelming appeal of a strong stance on protecting children. It's like being strongly in favor of honesty: few would challenge or debate the position.

Thus, many people have been charged with trafficking in child pornography “because picture A or picture B would appeal to a pedophile.” These cases are commonly referred to as “Baby-In-The-Bathtub Child Pornography cases.”


Example:

Federal judge orders nude photos of grandkids returned to grandmother

By The Associated Press
06.20.01

NEWARK, N.J. — Nude pictures an Essex County grandmother took of her granddaughters cannot be considered child pornography and must be returned to the woman, a federal judge has ruled.

U.S. District Judge Dickinson R. Debevoise also found, however, that Essex prosecutors and Montclair police acted in good faith in prosecuting Marian Rubin and cannot be sued for monetary damages.

Rubin's lawyer, Jeffrey E. Fogel, said his client was satisfied with the ruling because she mainly wanted the pictures back.

"The state has no right to engage in censorship when there's no evidence that a crime has been committed," Fogel said yesterday.

An appeal was unlikely, said county lawyer Robert C. Scrivo.

Authorities maintained the photographs were contraband, arguing that the images "would provide considerable interest and excitement for a pedophile observer" in violation of state law.

Debevoise disagreed. "The photographs have been reviewed and it cannot be concluded that they were taken by plaintiff for the purpose of sexual stimulation or gratification," he wrote.

Found at:
http://www.firstamendmentcenter.org/news.aspx?id=4937

watch the movie "hard candy".

 

[Karen Kraft]

watch the movie "hard candy".

Yeah.

I loved it.