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

[Karen Kraft]

I'm not sure you have much of an understanding of this based on this post. Your first example with the screenplay wouldn't be child porn as the law is written, IMO.

Here's the law ...

http://www.law.cornell.edu/uscode/18/2256.html

I was trying to say that the adult and the child are having sex with each other in the movie, although we don't see anything that would otherwise qualify it as pornographic.

Most likely, such a film would be prosecuted under PROTECT (the new CP version - coming to theaters and prisons everywhere):

"It targets the person who "advertises, promotes, presents, distributes or solicits . . . any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that it is child pornography.

 

[Karen Kraft]

The Miller test "clarity" assures that something that is legally obscene in one jurisdiction may not be in another.

Pookie -- what I'm saying *sigh* is that the Miller Test IS vague. It has nothing to do with Child Pornography. It is the test for obscenity.

What is NOT VAGUE is the test for child pornography because it has no exceptions (artistic expression, community standards, liked by perverts, etc.) UNLIKE the Miller Test.

 

[Karen Kraft]

When I was a kid the COPPERTONE billboards were everywhere; no one was offended by the naked kid. But you dont see the billboards anymore.

The film ROMEO & JULIET violates the law. You get a nice shot of Olivia Hussey's ass, and she was 14 I think.

No, the film Romeo and Juliet (1996) violates neither the Child Pornography laws NOR the Obscenity laws, as applied in nearly all jurisdictions in the United States. Any local prosecution of it would fail on First Amendment gounds.

Nudity of children is NOT child pornography. That is what the thread is about:

Dumb or "political" prosecutors try to apply the "appeals to perverts" test to materials containing naked children. No such law or test exists.

 

[Mansa Musa]

How does that even remotely compare to the case about a bearskin rug type photo?



Dude, it's just an av.

That and he's not real. I'm hoping you at least have a handle on that one concept.

I'm hyper-tolerant. If I gave you a list of the things that I've done or have full knowledge of, you wouldn't want to stay in the same room with me. But, child molestation isn't funny, it isn't cool and it isn't cute. And I do have one question, which connects to my initial misgivings about the referenced cases: What percentage of the undeveloped pictures were in the cutesy nude vein? As I mentioned before, I've met people who had no qualms about showiing off dozens of nude children pictures.

As a man who was involved with a woman who suffered grievious sexual abuse, I still remember having conversations with her that focused on the fact that her "foster father" would take dozens of pictures of her, knowing that the developers would see them as being harmless. And when he made friends with a worker who shared his "interests", that guy would get first shot at the "real" pictures. If the film store workers jumped the gun at seeing a shot of little Jaden and Emma in a bath, that's ridiculous. But if the grandmother in question was bringing in rolls and rolls of "candid" nude shots of children, then that's a whole different kettle of fish.

 

[Mansa Musa]

The same reason Germans let their munchkins run around in the raw-- they're little and innocent and there's no harm in it. They haven't been taught that nudity is bad and that they should be ashamed of themselves. They're just happy little kids splashing in the bathtub, and that brings people joy.

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

 

[John Doe]

I'm hyper-tolerant. If I gave you a list of the things that I've done or have full knowledge of, you wouldn't want to stay in the same room with me. But, child molestation isn't funny, it isn't cool and it isn't cute.

I don't care.

And I do have one question, which connects to my initial misgivings about the referenced cases: What percentage of the undeveloped pictures were in the cutesy nude vein? As I mentioned before, I've met people who had no qualms about showiing off dozens of nude children pictures.

I don't know.

As a man who was involved with a woman who suffered grievious sexual abuse, I still remember having conversations with her that focused on the fact that her "foster father" would take dozens of pictures of her, knowing that the developers would see them as being harmless. And when he made friends with a worker who shared his "interests", that guy would get first shot at the "real" pictures. If the film store workers jumped the gun at seeing a shot of little Jaden and Emma in a bath, that's ridiculous. But if the grandmother in question was bringing in rolls and rolls of "candid" nude shots of children, then that's a whole different kettle of fish.

I don't care.

So you're an idiot then. Well it would've been a lot easier for both of us if you had just shared that from the beginning.

Have a good day.

 

[John Doe]

The same reason Germans let their munchkins run around in the raw-- they're little and innocent and there's no harm in it. They haven't been taught that nudity is bad and that they should be ashamed of themselves. They're just happy little kids splashing in the bathtub, and that brings people joy.

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?

 

[Karen Kraft]

[snip]. But if the grandmother in question was bringing in rolls and rolls of "candid" nude shots of children, then that's a whole different kettle of fish.

But those are not the facts in that case -- at least that's what the court ruling was.

You have to look at a case based on the facts presented. Otherwise, one could argue: If the grandmother involved was also a bank robber, it was a good idea that she got arrested.

The facts of the case were simply that the prosecutors sought to use one element of the Miller Test (that the pictures might appeal to perverts) which would only apply to obscenity prosecutions, not to child pornography prosecutions. Since none of the pictures involved any of the essential elements of child pornography, the grandmother was properly acquitted.

 

[mscreen]

But those are not the facts in that case -- at least that's what the court ruling was.

You have to look at a case based on the facts presented. Otherwise, one could argue: If the grandmother involved was also a bank robber, it was a good idea that she got arrested.

The facts of the case were simply that the prosecutors sought to use one element of the Miller Test (that the pictures might appeal to perverts) which would only apply to obscenity prosecutions, not to child pornography prosecutions. Since none of the pictures involved any of the essential elements of child pornography, the grandmother was properly acquitted.

Nudity of children is NOT child pornography. That is what the thread is all about....

Can't we just agree that many people are idiots, and some idiots rise to the level of assistant district attorneys, judges, legislators, presidents... there are just lots and lots of idiots.

 

[Mansa Musa]

I don't care.



I don't know.



I don't care.

So you're an idiot then. Well it would've been a lot easier for both of us if you had just shared that from the beginning.

Have a good day.

Good night, pedo.

 

[Mansa Musa]

But those are not the facts in that case -- at least that's what the court ruling was.

You have to look at a case based on the facts presented. Otherwise, one could argue: If the grandmother involved was also a bank robber, it was a good idea that she got arrested.

The facts of the case were simply that the prosecutors sought to use one element of the Miller Test (that the pictures might appeal to perverts) which would only apply to obscenity prosecutions, not to child pornography prosecutions. Since none of the pictures involved any of the essential elements of child pornography, the grandmother was properly acquitted.

Understood. I'd assumed (yes, I know) that the pictures were somehow out of pocket, existing in some sort of nebulous "Could be cutesy, could be kinky" zone, like two naked kids hugging or something. I can understand the bathtime stuff, or the changing diapers stuff. Bt, sometimes, you get the "naked kids on the swings", "naked kids sliding down bannisters", and other things.

 

[Karen Kraft]

Nudity of children is NOT child pornography. That is what the thread is all about....

Can't we just agree that many people are idiots, and some idiots rise to the level of assistant district attorneys, judges, legislators, presidents... there are just lots and lots of idiots.

Ummmm......

I know what this thread is about, and my post in now way suggests that I think that "Nudity of children" is child pornography. What gave you that idea?

 

[Karen Kraft]

Understood. I'd assumed (yes, I know) that the pictures were somehow out of pocket, existing in some sort of nebulous "Could be cutesy, could be kinky" zone, like two naked kids hugging or something. I can understand the bathtime stuff, or the changing diapers stuff. Bt, sometimes, you get the "naked kids on the swings", "naked kids sliding down bannisters", and other things.

Okay.....

.... but I don't understand how "naked kids sliding down banisters" fits into this equation.

Now, if it were "naked kids sliding down barristers," I think I would get your point.

 

[mscreen]

Ummmm......

I know what this thread is about, and my post in now way suggests that I think that "Nudity of children" is child pornography. What gave you that idea?

This isn't about the law... this is about idiots trying to bend the law. Your post is about idiots trying to bend the law. Unfortunately, sometimes the law is ignored and the idiots prevail.

 

[Karen Kraft]

This isn't about the law... this is about idiots trying to bend the law. Your post is about idiots trying to bend the law. Unfortunately, sometimes the law is ignored and the idiots prevail.

More often than we might even think!!!!


.... and you missed my little joke about barristers.

No more Good and Plenty rough for you, buster!!!!

 

[mscreen]

More often than we might even think!!!!


.... and you missed my little joke about barristers.

No more Good and Plenty rough for you, buster!!!!

In truth, I didn't read through the thread... just the highlights.

Good and Plenty rough! DOH... I missed that completely. Damn you demon shiraz....

 

[curious2c]

Child Pornography laws were all about protecting children. The problems that come from those laws are in determining exactly what pornography truly is.

One man's person's) pornography is another man's (person's)usual day to day life.

The main thing is that naked pictures of babies or young children, taken in fun and cherished moments are not pornography. There are those out there though, who 'trade' on little kids pictures, most not taken with parental permission, and most are sexual in nature because of that aspect. A grandparent having naked pics of a grandchild is not, in a word pornography.

And an aside, writing about such things shouldn't be illegal either. Writing like that being made illegal would soon make 'news' stories about the reality of child porn and abuse become no reportable.

 

[John Doe]

Good night, pedo.

Good night, idiot.

 

[Pookie]

That exact photograph, within the four corners of the document, would not be child pornography. Community standards are not applied in the test for child pornography. The picture, as it appears in your post, absent all clothing would survive the test for child pornography (irrespective of the relationship of the actors or models in the material). Why? Let's examine it:

1. Is/are any of the actors or models under the age of 18? YES.

2. Does the image portray the minor involved in sexual intercourse, genital to genital, oral to genital, oral to anal contact? NO.

3. Does the image portray bestiality, masturbation, sadistic or masochistic abuse or lascivious exhibition of the genitals or pubic area of any person? NO.

The following is the law ...

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

And here is the definition of sexually explicit ...

(B) For purposes of subsection 8(B) [1] of this section, “sexually explicit conduct” means—

(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;

(I) bestiality;

(II) masturbation; or

(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;

You're applying standards that aren't the law. You might want to actually read the legal definitions before you continue with this discussion. I'm sure I could find a location that would find that pose with Miley nude as being sexually explicit.

 

[Karen Kraft]

You're applying standards that aren't the law. You might want to actually read the legal definitions before you continue with this discussion. I'm sure I could find a location that would find that pose with Miley nude as being sexually explicit.

Incorrect. As modified by the Supreme Court, the fact that children are naked (meaning you can see their genitals) does not constitute child pornography. The mere fact that one can see a minor's pubic area does not constitute "graphic or simulated lascivious exhibition of the genitals or pubic area of any person" -- and note that the simulated part was ruled unconstitutional in the Ashcroft case. Subsequent cases have held that lascivious exhibition of the genitals are close-ups, pictures or videos where the genitals are the focus of attention, and so on. In the picture you posted, with neither of the subjects wearing a stitch of clothing, the photograph would not be successfully ruled child pornography in any jurisdiction in the United States. Finding a location where Miley being naked would be considered by some judge as pornographic is pointless -- Any such ruling would be reversed immediately as a violation of the publishers' First Amendment rights to free speech and expression.

I could find a jurisdiction that would hold that the JCPenney ad showing kids in swim suits is child pornography. Such a ruling would last about half a day before being overruled.

Not that we really need to get into this all that much, it is helpful to recognize that our "opinions" are not what's important in a legal discussion. The courts have defined what constitutes "lascivious" so we really don't have to. For example:

United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987).

The Dost Factors are:
(1) whether the genitals or pubic area are the focal point of the image;
(2) whether the setting of the image is sexually suggestive (i.e., a location generally associated with sexual activity);
(3) whether the child is depicted in an unnatural pose or inappropriate attire considering her age;
(4) whether the child is fully or partially clothed, or nude;
(5) whether the image suggests sexual coyness or willingness to engage in sexual activity; and
(6) whether the image is intended or designed to elicit a sexual response in the viewer.

 

[Pookie]

Incorrect. As modified by the Supreme Court, the fact that children are naked (meaning you can see their genitals) does not constitute child pornography. The mere fact that one can see a minor's pubic area does not constitute "graphic or simulated lascivious exhibition of the genitals or pubic area of any person" -- and note that the simulated part was ruled unconstitutional in the Ashcroft case. Subsequent cases have held that lascivious exhibition of the genitals are close-ups, pictures or videos where the genitals are the focus of attention, and so on. In the picture you posted, with neither of the subjects wearing a stitch of clothing, the photograph would not be successfully ruled child pornography in any jurisdiction in the United States. Finding a location where Miley being naked would be considered by some judge as pornographic is pointless -- Any such ruling would be reversed immediately as a violation of the publishers' First Amendment rights to free speech and expression.

I could find a jurisdiction that would hold that the JCPenney ad showing kids in swim suits is child pornography. Such a ruling would last about half a day before being overruled.

Not that we really need to get into this all that much, it is helpful to recognize that our "opinions" are not what's important in a legal discussion. The courts have defined what constitutes "lascivious" so we really don't have to. For example:

United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987).

The Dost Factors are:
(1) whether the genitals or pubic area are the focal point of the image;
(2) whether the setting of the image is sexually suggestive (i.e., a location generally associated with sexual activity);
(3) whether the child is depicted in an unnatural pose or inappropriate attire considering her age;
(4) whether the child is fully or partially clothed, or nude;
(5) whether the image suggests sexual coyness or willingness to engage in sexual activity; and
(6) whether the image is intended or designed to elicit a sexual response in the viewer.

Sorry, but Courts that have interpreted "lascivious exhibition" have done so very broadly. Also, I never claimed nudity alone was child porn. But at least you seem to be using the actual legal definition of child porn and some case law instead of what you were using in the OP, which is what I meant in my last post.

In US v Knox (1994) - "as used in the child pornography statute, the ordinary meaning of the phrase "lascivious exhibition" means a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer."

Oh boy, is there a lot of room for subjective interpretation in that! Even the Dost standards has those kinds of subjective measures -- "sexually suggestive", "unnatural pose", "inappropriate attire", "suggests sexual coyness", etc. Who gets to define all those things? If there is an objective legal interpretation/definition for each of those, please post them.

And to top it off, the Court ruled in Knox that the model didn't even have to be nude for it to be a "lascivious exhibition" -- "the statutory term "lascivious exhibition of the genitals or pubic area," as used in 18 U.S.C. � 2256(2)(E), does not contain any requirement that the child subject's genitals or pubic area be fully or partially exposed or discernible through his or her opaque clothing."

As I previously stated, there is a whole lot of gray area within all of this. So much is up to subjective interpretation by communities. I suggest you do a bit more reading.

 

[Pookie]

I was trying to say that the adult and the child are having sex with each other in the movie, although we don't see anything that would otherwise qualify it as pornographic. ...

Actually, this is what you posted ...

If there was a screenplay that featured a stepfather and a stepdaughter of 13 or 14 years of age, played by an actress over the age of 18, and they ended a particular scene with the two of them hugging in the same bed, fading out to dramatic music, it would be illegal (unprotected speech) due to the suggestion of coitus between the two of them.

You didn't say they were having sex. Are you just making stuff up as you go along and hoping you get it right? You didn't even seem to know what the language of the actual law was until I posted it. You're pulling stuff out of your ass with many of your posts.

Again, you may want to do some reading before you continue with this discussion.

 

[Karen Kraft]

Actually, this is what you posted ...



You didn't say they were having sex. Are you just making stuff up as you go along and hoping you get it right? You didn't even seem to know what the language of the actual law was until I posted it. You're pulling stuff out of your ass with many of your posts.

Again, you may want to do some reading before you continue with this discussion.

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.

 

[Karen Kraft]

Sorry, but Courts that have interpreted "lascivious exhibition" have done so very broadly. Also, I never claimed nudity alone was child porn. But at least you seem to be using the actual legal definition of child porn and some case law instead of what you were using in the OP, which is what I meant in my last post.

In US v Knox (1994) - "as used in the child pornography statute, the ordinary meaning of the phrase "lascivious exhibition" means a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer."

Oh boy, is there a lot of room for subjective interpretation in that! Even the Dost standards has those kinds of subjective measures -- "sexually suggestive", "unnatural pose", "inappropriate attire", "suggests sexual coyness", etc. Who gets to define all those things? If there is an objective legal interpretation/definition for each of those, please post them.

And to top it off, the Court ruled in Knox that the model didn't even have to be nude for it to be a "lascivious exhibition" -- "the statutory term "lascivious exhibition of the genitals or pubic area," as used in 18 U.S.C. � 2256(2)(E), does not contain any requirement that the child subject's genitals or pubic area be fully or partially exposed or discernible through his or her opaque clothing."

As I previously stated, there is a whole lot of gray area within all of this. So much is up to subjective interpretation by communities. I suggest you do a bit more reading.

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.

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 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.

 

[Mansa Musa]

Okay.....

.... but I don't understand how "naked kids sliding down banisters" fits into this equation.

Now, if it were "naked kids sliding down barristers," I think I would get your point.

No pedo jokes!!

I tend to be a bit sensitive about anything that triggers my "pedo-sense", and pictures of naked children are my main trigger. I know that nudity is a natural state, but the idea of people saving up pictures of naked children gives me the shivers, and nowhere near in a good way. Hell, I've read documents written by actual child molesters detailing their ability to masturbate to orgasm by looking at catalog models for children's clothes. They don't need udity, just imagination. I know that the vast majority of people can look at a naked child without having any sort of erotic reaction to the sight, but on a visceral level the idea of people (adults) having even the slightest capability of using those sights for self-gratification or justification for future abuse sickens me. Once again, I'll repeat: Child nudity isn't wrong, but taking multiple photographs of naked children (regardless of reason) is my biggest squick. I'll leave the rest of this discussion to the seasoned debaters.