Article 51852 of alt.sex: Relay-Version: VMS News - V6.0-3 14/03/90 VAX/VMS; site husc3.harvard.edu Path: husc-news.harvard.edu!husc8.harvard.edu!silvers3 Newsgroups: alt.sex Subject: REPOST: Child Porn (Was: Is Porn Legal?) Message-ID: <1992Aug18.103913.14849@husc3.harvard.edu> From: silvers3@husc8.harvard.edu (Jolyon Silversmith) Date: 18 Aug 92 10:39:09 EDT Organization: Harvard University Science Center Nntp-Posting-Host: husc8.harvard.edu Lines: 606 The previous version of this post was rather horribly garbled, despite the instruction of someone who claimed to know what they were doing :(. Hopefully this will work better. This term paper was written in May, 1992 for Government 1341: Constitutional Law at Harvard University by Jolyon A. Silversmith. This document is not in the public domain; however, excerpts and the document as a whole may be used freely if properly attributed and not altered as to distort the meaning and intent of the original document. Contact with the author at silvers3@husc.harvard.edu is appreciated but not required. The Application of Child Pornography Statutes to Non-Obscene Art and Family Photography Statutes addressing the creation and distribution of child pornography have long presented quandaries for civil libertarians. The First Amendment right of free speech and whatever penumbras of privacy that are embodied in the Constitution must be balanced against the potential abuse and exploitation of children, against the state's ability to protect its citizens, in determining the moral and Constitutional permissibility of these laws. The application of these statutes has been especially problematical in the decade since New York v. Ferber (1982); that decision validated the regulation of visual depictions of minors that are not obscene but simply incorporate sexual conduct. Contemporary state statutes, despite exemption clauses, on their surface now often prohibit non-pornographic photographs of children not intended for dissemination beyond the family and legitimate works of art, both of which many individuals would find to be morally acceptable and legally permissible. Such cases may represent a mere fraction of all child pornography cases, but they do exist. This paper will examine investigations and prosecutions in which there was, at least to some degree, doubt that the accused individuals had sought to create the materials that child pornography statutes were enacted to prevent. Continuing problems of application, enforcement, and construction have long left unresolved this conflict of rights and responsibilities. Individual morality is ultimately the determining factor in any decision as to what types of art and family photography are permissible, as to what they actually are, as well as to how great a danger is posed for Constitutionally protected behavior, for activities with societal value, by existing child pornography statutes. All but one of the actions considered in this paper transpired in the wake of the landmark Ferber case; child pornography statutes now encompass the greater leeway granted to governments by this decision. The Supreme Court ruled on July 2, 1982 that to be regulated by a state, visual depictions of sexual acts involving children need not be judged obscene by the standard established in Miller v. California (1973). Under certain narrow circumstances, a ban on non-obscene depictions of children engaged in sexually explicit conduct does not run afoul of the First Amendment. This reversed a decision by the New York Court of Appeals that found a statute prohibiting the knowing promotion of a sexual performance by a person under 16 as underinclusive and overbroad. Noting that this was the Court's first examination of sexual activity involving children, Justice White wrote for the majority that the potential adverse effects upon children of being subjects of pornography were sufficient to justify intervention by the state; the 'prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance' (757). The Miller formula alone was not a 'satisfactory solution to the child pornography problem' (761). Any literary, scientific, or educational, value in such material was rare; '[t]he value of permitting... photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis' (762), and educational and medical works were exempted from the New York law. The regulation of a class of material based on content was not unprecedented nor impermissible; other communicative materials had been regulated because the evil in them outweighed any expressive interest (764). However, the existence of physiological, emotional, and mental dangers for children did not grant states a carte blanche to circumscribe the First Amendment. New York statute $ 263.05 was an example of a narrowly-tailored law; there was a further expectation that courts would not give such statutes overbroad interpretations (773). They must apply only to visual depictions of minors below a specific age and the term 'sexual conduct' must be 'suitably limited and described' (764). The Court declined to define child pornography itself. Justices O'Connor and Brennan in separate concurring opinions noted that laws such as New York's might yet be overbroad but no hypothetical was substantial enough to warrant affirming the lower court's ruling (777, 781). The case of The People of the State of Illinois v. Lerch (1985) involved a pre-Ferber statute which required depictions of children to be obscene by the Miller standard. As for all of the actions in this paper, the photographs in question were not of a purely innocent character. Additional evidence of abuse or exploitation was lacking, but the character of the photos was such as to warrant an investigation of the condition of the depicted child. However, as in all of the post-Ferber cases, the statute if not the outcome of this specific prosecution condoned broad intervention into the lives of individuals by the state. A central question therefore is whether such intervention is justified or at the bare minimum tolerable when the nature of the photographs and the process of their creation is not clearly reproachable, much less the underlying intent of the actors and the perceived value of the photographs censurably lascivious. The columnist Nat Hentoff argues that it is not. Recounting the Lerch case anonymously before its final appeal, he asserted that the broad terms of the Illinois child pornography statute allowed Lerch to be convicted of 'creating pornography' while all he had done was take innocent photographs of his wife and child frolicking as children are inclined to do. However, the prosecution was not so clearly a persecution. In December, 1982, Lerch took photos of his six-year old daughter in the nude, sometimes alone and sometimes with his wife Mariann. As in most contemporary child pornography actions, the police became aware of his actions by a film technician reporting the presence of potential child pornography on a roll of film. Both parents were arrested and charged with creating child pornography and permitting their child to be the subject of child pornography. Eventually, only William Lerch was convicted of the former charge under Ill. Rev. Statute 1981, ch. 38, $ 11-20a(b)2, a felony, and was given one year's conditional discharge. Emotional trauma aside, the court's description of the photographs indicates that an investigation was warranted. Some of the photographs depict Mariann Lerch interacting with the nude child - there is no sexual contact, but in some photographs her gaze is apparently directed at the exposed pubic area of child, and in others her face is upon the child's breast. When depicted alone, in some photographs the child is 'posed in positions which clearly reveal and focus attention on her genital area.' (647). Despite the lack of any evidence that these photographs were intended to be disseminated, the only necessary matter of concern for the court was whether the photographs were obscene. The Illinois statute, based upon the Miller standard, succinctly defined child pornography as featuring as a participant 'a child under the age of 16 or who appears pre-pubescent,' as depicting patently offensive sexual conduct, as appealing to what according to contemporary community standards is a purient interest, and as lacking any serious purpose or value. One of the grounds of Lerch's appeal was therefore that mere nudity is not patently offensive. The court countered that proscribable sexual conduct included not only intercourse but the lewd exhibition of the genitals or pubic area. References to mere nudity was a gross mischaracterization - some of the photographs depicted imminent incest and contrived gymnastic positions similar to ones that had been found obscene in other cases (650). Both parties might agree that it is 'difficult to discern the intent behind photographs featuring young children' (650). The court concluded, however, that because children may not understand the significance of such conduct and because it is the intent and duty of the state to protect children from exploitation, the conduct of children need not be as 'suggestive or as imminent' as that between adults to be judged offensive (651). The court also asserted that although the average person applying contemporary standards might not find the dominant theme of any of the photographs to appeal to a purient interest, Mishkin v. New York (1966) ordained that when material is designed for a clearly defined deviant sexual group, the standard is satisfied if the material appeals to a purient interest of members of that group. State law further mandated that child pornography 'shall be judged with reference to... specially susceptible audiences if it appears from the character of the material... to be specially designed for or directed to such an audience' as the court found some of the photographs to be (652). Finally, the court denied that the photographs had any artistic merit as part of a collection of family pictures. The presentation of the photographs was lacking in any of the nuances that had prevented photographs in other cases such as United States v. Various Articles of Obscene Merchandise (1978) from being found obscene; there was no special lighting, costuming, set design, theatrical posing, or gestures of dance and composition to add 'interest, taste, and quality'; these images of a child did not capture a 'moment of uninhibited spontaneity' but were deliberately posed and were thus lacking in merit (653). In summary, the Illinois court pronounced that even though this case's origins antedated the revision of the state's child pornography statutes, 'the proposition that the state is entitled to greater leeway in the regulation of pornographic depictions of children is strongly supported by Ferber' (656). The listing of censurable sexual conduct in Miller was not intended to be comprehensive, and the behavior in question in this case was of the sort which the state could prohibit as a legitimate extrapolation of Ferber (Ward v. Illinois (1977)) and as a compelling interest overriding the rights of the parents. This conclusion is indicative of the difficulties that yet exist in regard to the reach of child pornography statutes. Whether the default status of minor nudity before the law should be impermissible or permissible is still a matter of debate. Illinois here assumes that visual depictions of minor nudity are more often than not exploitative; if this conclusion is not based on moral principles itself, it certainly has the function of promulgating standards. Even a more narrowly-phrased-and-enforced statute, such as one requiring 'lascivious' intent, yet requires that a potentially controversial moral choice be made in its application and construction because the term yet requires interpretation. Lerch's photographs were intolerable for society because they would appeal to the purient interests of an audience that would never see them; again, the state's interest in protecting its citizens must be balanced against the wide implications of this incidental for free expression. Further, by creating a set of standards to determine whether a photograph has artistic value or not, the court endorsed the very dubious proposition that definitive artistic standards based on objective values may be promulgated. Even if the photographs in this particular case were not worthy of First Amendment protection, the matter of overbroad child pornography statutes remains, an issue not at all addressed by the Supreme Court until the 1990 case of Commonwealth v. Oakes. The Ferber decision lowered the standards for state action on this matter, leaving the ultimate limits to restrictions upon the depiction of nude children to be determined by enacted statutes, pending future cases. The child pornography laws that emerged in the early 1980's were therefore distinct; Massachusetts's law, for example, on its surface prohibited all visual depictions of children nude. Ironically, virtually all organized production of child pornography had been eliminated by the late 1970's but increasingly stricter child pornography statutes were adopted throughout the following decade (Stanley 356). The application and enforcement of these statutes has therefore often been inconsistent and impassioned, especially in regard to works that were not intended to be pornographic, much less obscene. In order to prevent the sexual 'abuse' and 'exploitation' of children, it has been argued that the creation and distribution of images of merely nude children should be prohibited; the risk that they might be used 'for the purpose of sexual stimulation or gratification of any individual who may view such depiction' is inescapable (De Grazia 50). Further, most post-Ferber statutes had been adopted by legislators, applied by law enforcement officers, and construed by judges who have a 'complete ignorance of art history, of the aesthetics of nude portraiture, and of the traditional use of children as nude models' (Ginsberg and Richey 42). A contemporary example of the application of child pornography statutes to legitimate artists involved the photographer Alice Sims of Alexandria, Virginia. In preparation for a mixed media series entitled 'Water Babies' she took nude photographs of her 1-year old daughter and a friend's 4-year old daughter on June 29, 1988. Although these were not the first photographs of this type to be taken by Sims, they required special handling that brought them to the attention of the local police and United States postal inspectors. Her home was raided on July 14, 1988 for the production of 'sexually explicit visual material'; her daughter and her 6- year old son were taken into custody. Under Virginia law, the state can remove children from their homes when there is merely thought to be a 'clear and substantial danger' to their life or health. The children were returned the next day after physical exams showed no evidence of abuse. Sims' lawyer, Stephen W. Rideout, stated that the police would have been recalcitrant not to investigate. 'Under certain circumstances, some of the photographs might be construed as being pornographic' (Jenkins, August 4, 1988 D6). However, he attributed the removal of the children to the hysterical attitude of law enforcement officers towards any materials that depicted nude children. The investigators 'went wild' over photographs 'every parent has taken'; they were clearly 'appalled' by Sims' artwork focused on the nude female form displayed throughout the house, despite the display of her work in distinguished galleries and in Washington D.C. libraries (Hess 32). The police took possession of her address book 'to identify other possible victims' (Jenkins, July 19, 1988 B5) and cited her photographs as being in violation of Federal law by containing 'lascivious display[s] of the genitals' (Kaltenheuser 16). Postal Inspector Robert Northrop said that he was disturbed by the presence of the older child's hands on her genitals, apparently engaged in masturbation, in some of the photographs; Sims countered that infants don't stay still and that she would have painted over such displays in her completed works (Ibid.). Sims admitted that she violated the letter of the law, but asserted her rights as an artist and criticized the reaction of authorities such as Northrop who said 'Art is anything you can get away with... this is all filth' (Hess 32). Virginia ultimately declined to press charges against Sims, the only evidence against her being the photographs. Deputy Commonwealth's Attorney S. Randolph Sengel stated that although 'some of the photographs seized in this case fall within the kind of material that is prohibited by Virginia law... it does not appear they were produced with any criminal intent.' (Jenkins, August 4, 1988 D1) The state also denied acting improperly in taking the children into immediate custody. The vast majority of such cases also involve physical abuse (Kennedy 15) and are not reversed. 'There's always going to be a group of people criticizing you because you take a kid out of the home. But you leave the kid in the home and let him get killed, then listen to the criticism. You're damned if you do and damned if you don't' (Jenkins, August 8, 1988 D5). Although the Sims case did not go to trial, it also served to indicate some of the civil liberties issues inherent in child pornography laws. An investigation of her art may have been warranted, but some individuals sincerely believe that any depiction of a minor nude, no matter what its use, is a danger to society. Rideout stated that the 'legislation is sound as far as its purpose and intent to protect children who can't defend themselves' (Kaltenheuser 17). However, crusaders such as Northrop believe that 'it's not healthy to send the message you can do [anything] if you call yourself an artist.... Isn't Larry Flynt an artist?' (Ibid.) This concern is valid. But it is questionable if the appropriate response is to not make any distinctions and prohibit all such depictions. The emphasis on intent in the Sims case is also a concern. Exploitation should be distinguished from art, but too strict an outline defines what art is, what types of speech are acceptable based on taste rather than any compelling interest. 'Had [Sims] not been the caliber artist she is... the outcome could have been different' (Jenkins, August 8, 1988 D5). Individuals who cannot point to artistic intent are likely to be prosecuted, as was William J. Kelly of Falls Church, Virginia (Stanley 345). The photographs in that case were ultimately proven to have been taken by his children themselves, who were coerced into making statements against him. Northrop attempts to resolve this dilemma by asserting that '[i]ntent is something defined not by state of mind but overt acts' (Kaltenheuser 17). But acts too must be construed; they involve a mixture of conduct and speech. If '[a]rtistic people are funny,' the variety of their works makes it difficult to assert that 'the evidence speaks for itself' (Hess 32). A more complex example involved the photographer Jock Sturges of San Francisco, known for his nude photographs of families. On April 25, 1990 a joint Federal Bureau of Investigation-San Francisco police strike force raided his studio after having been made aware of several sheets of negatives taken at a 'clothing-optional' beach in France. California is one of the few states in the nation to require that commercial film processors report photos of minors engaged in sexual acts or graphic displays of genitalia to law enforcement authorities (Atkins 76). The obsession demonstrated by the police with child pornography here exceeded that in the Sims case; they arrived without a warrant, and occupied Sturges's studio for several hours while waiting for it to arrive, when they then damaged and seized unrelated materials and equipment and did not return most of it until forced to by a Federal court order (Wilkes, April 1991). Sturges described the action as that of 'a government that has lost control of its perspective and a sense of priorities' (Ginsberg and Richey 47). Sturges' position was more precarious than that of Sims because of the sheer volume of his work and his non-relation to any of his subjects, even though he had always obtained parental consent and had maintained records of his subjects in conformity with the Child Protection Act of 1984 (Atkins 76). The police, however, focused upon the photographs as primarily being of nude girls twelve years of age and under (Shapiro 41). California law prohibits the developing or duplication of a photograph that shows 'the genitals, pubic or rectal areas' of a person under 14 years of age 'for the purpose of sexual stimulation of the viewer.' Similarly, the F.B.I. insisted that the 'focus of the photos is directed towards the genitalia,' a 'lascivious display' by persons under 18 that is proscribed from interstate transport by Federal law (Bishop). Joe Semien, the owner of the film laboratory, tried as best as he could to defend his friend's work within the law, characterizing it as 'portraits, nudes on beaches, and images of fathers and daughters, most of them old friends' (Atkins 76). He admitted that the photographs in question differed from the norm, but insisted that '[s]ociety should wait until they see what the content is before they jump to conclusions' (Bishop). For his efforts, the police initially charged him with two felony counts of producing and ten of possessing child pornography and held him in jail for two days; the charges were later dropped. Again, a lack of further evidence and a popular backlash led no charges to be filed against the artist. The San Francisco Board of Supervisors passed a resolution by a vote of 9 to 2 on July 9, 1990 urging that the investigation against a man who has similar works in the Metropolitan Museum of Art in New York and Bibliotheque Nationale in Paris to be ended (Bishop). On September 14, 1991, a Federal grand jury declined to indict Sturges, a rare rebuff for Federal prosecutors ('Panel Rejects Pornography Case'). However, this outcome does not lessen the significance of the indignities suffered by Sturges, nor, more importantly, the underlying rationales for the government's pursuit of him and the resulting implications for the application of child pornography statutes. Assistant U.S. Attorney Rodolfo Orjales insisted that objective standards could be discerned for determining whether asserted art is deserving of First Amendment protection: 'the apparent age of the child, whether the photo focuses on the genitals, whether the child is in an unnatural position' (Shapiro 41). He adds that according to United States v. Arvin (1989) expert testimony on artistic merit is not necessarily relevant or even admissible. 'This guy is claiming to be a professional photographer... But the only thing that makes it different is he knows how to take pictures. The guy is saying we're infringing on his artistic activity. That's b.s.' (Shapiro 41). Sturges disagrees, asserting that pornography 'focuses on the body of the subject and ignores entirely the... personhood... of the individual depicted...' (Ginsberg and Richey 47). Undercurrents of sexuality in depictions of minors may be the works' communicative value (Atkins 76). Again, a conflict exists as to whether speech is tangential to the exploitation inherent in depictions of nude children or vice versa. Further, the influence of attitudes and beliefs is again inescapable. 'Photographers may photograph nude minors for many reasons' and attempting to discern 'intent' is as nebulous an effort as determining what a photograph 'means' (Stanley 27). Even if an artist's state of mind is relevant, even if an artist is sexually attracted to a subject, it does not immediately follow that a work is without First Amendment merit. Well intentioned attempts to protect citizens, mentally and physically, can lapse into thought control. Separate laws addressing the abuse and exploitation of children exist. The conclusion that simple eroticism is wrong may lead to the regulation of artistic content, method and style that is characteristic of totalitarian societies. On October 10, 1985, Douglas Oakes of Worcester, Massachusetts was convicted of violating the state law that made a criminal of anyone who 'hires, coerces, solicits, or entices, employs, procures, uses, causes, encourages or knowingly permits' a child under the age of 18 to pose in a state of nudity for the purpose of creating visual materials. Oakes had in February, 1984 taken photos of his 'physically-mature' 14-year old stepdaughter with her breasts exposed and was as a result sentenced to 10 years in prison under Massachusetts statute 272-29A, originally adopted several months after the Ferber decision. This case is a less than ideal case study because Oakes' behavior was of a questionable sort, although he was never charged with any other crime. The value of the Oakes case is the overbreadth challenge that led it to the Supreme Court. On remand, the Supreme Judicial Court determined on March 20, 1990 that the statute could be applied to Oakes himself because in the mixed conduct/ speech process of photography the expressive interest did not outweigh the state's traditional police power to protect its citizens. If the photographs had been intended for dissemination, Oakes ironically might have been vindicated. 'Regulations governing activities of distributors of child pornography may be viewed with greater scrutiny than those regulating activities of coercers and producers because the latter are considered to regulate primarily conduct and only incidentally speech.' United States v. Reedy (1986). The Supreme Judicial Court of Massachusetts heard an appeal by Oakes on February 3, 1987, and on February 1, 1988 in a 4-to-3 decision sustained his challenge to $ 272-29A. Justice Wilkins, writing for the majority, asserted that the court need not consider Oakes's behavior because the statute itself was fatally overbroad. That photography is entitled to First Amendment protection is not 'seriously debatable' (603); Oakes's conduct in posing his daughter 'cannot fairly be isolated' from that expressive process. 'Speech is conduct, and actions speak' (604). Recounting the standard set by United States v. O'Brien, (1968) the court writes that a 'sufficiently important governmental interest in regulating a non-speech element can justify infringement on first amendment freedoms.' However, this interest does not exist for non-obscene, non-pornographic photographs taken and kept in an individual's home (604). Even if a state assume interest yet justified intervention, $ 272-29A was still so overbroad as to warrant striking it down. According to Broadrick v. Oklahoma (1973) 'where conduct and not merely speech is involved... the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep' (605). The statute at issue '[c]riminalizes conduct that virtually every person would regard as lawful'; it 'makes a criminal of a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool.' The artists who painted many of the world's greatest paintings would be similarly liable (605). The judgment was therefore reversed and the verdict set aside. The dissenting opinion written by Justice O'Connor asserted that the proposition that the state could protect children from abuse and exploitation was no less beyond debate. The photographs at issue may not have been obscene, but they were 'sexually provocative' (606); the trial judge concluded that it was an 'insult to anybody's intelligence' to deny that a minor had not been coerced into experiencing the 'psychological, emotional and mental' harms whose causes Ferber had been intended to prohibit (606). Under $ 272-29A, the lack of dissemination and the occurrence of the photographs within the family home were irrelevant. The issue was whether First Amendment analysis was appropriate, whether overbreadth was a relevant consideration. The dissenters argued that they were not. The statute was not intended to address communication but action; the photographic process was here not 'used to express an idea' (608) but to facilitate speech and was thus within the legitimate sweep of the laws. The state has the leeway to regulate that which is 'distinctly conduct' (610); overbreadth analysis should not have been used, for there was not a 'common comprehensible form of expression' present (610). Permitting a minor to pose for nude photographs is no more speech than is setting a house afire in order to photograph a burning house (610). According to the standards set in O'Brien, the government may infringe upon an individual's First Amendment interests only when the regulation is within the power of the government, a sufficiently weighty government interest is furthered, the regulation is unrelated to the suppression of expression, and the regulation's provisions are sufficiently narrowly tailored. One of the central issues the Oakes case was therefore whether the intrusiveness of the prohibition of all visual depictions of child nudity was justifiable. The Petitioner's brief reiterates that the cited dangers must be real and substantial. The Petitioner asserts that the Respondent fails to refer to any cases beyond a core of criminal conduct that the state may legitimately prohibit; there is no overbreadth because there is no demonstrated chilling effect (28). When applied, the statute has been directed against photography which itself has been a part of the exploitation of children (15). In an amicus curiae brief rendered by the District Attorney for the Middle District of the Commonwealth of Massachusetts, the hypothesis that nearly every parent in the state is subject to arrest is dismissed as 'implausible' (8). The application of the statute is described as 'even-handed,' with no evidence of likely misapplication in the past or future. The statute was adopted promptly after Ferber, so it was intended to emulate its narrow terms, according to the amicus curiae brief of Covenant House and the National Center for Missing and Exploited Children. The charge of overbreadth trivializes real dangers to children (12). Further, nudity is no less trivial for children than adults, so it is within the power of the state to protect citizens who cannot grant informed consent (19). A completely opposite viewpoint is expounded by the amicus curiae brief of the American Sunbathing Association. The A.S.A. argues that children are 'natural nudists' (4). More significantly, nudist family photographs as well as visual publicity are illegal under $ 272-29A, fulfilling O'Connor and Brennan's concerns in Ferber (12). Minor nudity is not inherently sexual - the portrayal of the nudist lifestyle has been defended by cases such as Erznozik v. City of Jacksonville (1975). Statutes targeting the real exploitation of minors, not the 'hunch' of the Petitioner that the statute will not be applied to innocuous subjects, should be relied upon. There may be no real cases to cite because the chilling effect has been so large as to completely silence the public. The Respondent's brief provides further examples of how the statute might be misapplied; a parent who proudly stood by while other individuals photographed her child could be prosecuted, and pictures of nude war victims were illegal under $ 272-29A (13). The nudity provision could not simply be exorcised, according to the amicus curiae brief of the Law and Humanities Institute. 'The trouble with vague laws is that one must guess at their meaning (53). Federal law does not use the term nudity as it is too vague (De Grazia); the Massachusetts legislature should be required to be equally concise. Further problems exist with the statute, such as that the exemption clause applies only to disseminated works with more than just commercial artistic value, and consent is entirely meaningless (35). Privacy, parental control, and free speech should be paramount except where abuse and exploitation are present and proved (57). This debate emphasizes the difficulties generated by the failure of the Ferber court to definitively define child pornography. Massachusetts law was based upon the assumption that the state interest in protecting children was far more substantial than any speech incidentally restricted, especially when the obstruction of that speech was unclear. But civil libertarians could counter that the relation between child pornography and abuse demonstrates that the statutes prohibiting the production of such materials are often redundant but prevent the public emergence of an entire class of speech. Oakes does not ultimately address a specific set of photographs but rather what types of images are acceptable and what are exploitative. The underlying questions are therefore of philosophy and morality, of the response of human beings to images, of the parent-child relationship, of the ability to grant consent. Some standards must be set by courts and governments, but little guidance has been made available. Unfortunately, the Supreme Court's ruling in Massachusetts v. Oakes (1989) has not greatly improved the situation. In the interim before the case was heard by the Court on January 17, 1989, Massachusetts amended $ 272-29A to apply only to images created with 'lascivious intent.' The central concern of the Court therefore became whether a state might render a First Amendment overbreadth challenge moot by amending the challenged statute. In a split decision on June 21, 1990, six justices voted to vacate and remand the case although five justices asserted that the challenge was not moot. But even though the court avoided the Constitutional child pornography issue, non-doctrinal insights still may be discerned from the Oakes decision. The plurality opinion written by Justice O'Connor emphasized that only under First Amendment overbreadth doctrine may individuals assert the rights of parties other than themselves (581). This concern for chilling effects upon third parties was rendered moot by the amendment of the statute; O'Connor found it analogous to a limiting construction (584). Issues of doctrine are not relevant for the purposes of this paper; however, an important premise has been the nature of the rights at issue. Although free speech has been central, when child pornography statutes are applied to artists and family photography, an additional region of privacy is a factor. The standards applied to child pornography are more limiting than those ordinarily applied to political speech, and qualities of art and the family are not as easily quantifiable. Justices Scalia, Blackmun, Brennan, Marshall, and Stevens agreed that the overbreadth defense remained available even after statutes had been amended because it also served to prevent legislatures from revising statutes to the disadvantage of defendants. However, Scalia and Blackmun did not find the original $ 272-29A impermissibly overbroad. Scalia wrote that the possibility of unconstitutional application appeared insubstantial, and the scope of the statute had already been validated by Ferber except with reference to non-pornographic depictions of pre-adolescent genitals and post-adolescent genitals and female breasts. The burden is on the defendant to show from text and fact that the overbreadth is substantial (New York Club Association v. New York City (1988)). Scalia could discern only two possible examples - art not 'produced, processed, published, printed, or manufactured' for a school, museum, or library and family photos - and he was dubious as to whether the former was protected, and found no evidence of prosecutions of the latter. In contrast, Justices Brennan, Marshall, and Stevens asserted that the former version of the statute was impermissibly overbroad. Massachusetts lacked a compelling interest to justify the extent of its statute: 'Non- obscene representations of minors, even some that are pornographic, are shielded by the Constitution's guarantee of free speech' (591). Although he recognizes the 'surpassing importance' of preventing child pornography, Brennan reiterates that not all visual representations of nude minors need be proscribed if the goal of the statute is that of Ferber, the prevention of their sexual exploitation (592). Non-exploitative photography, modeling, and art involving nude minors exists; there are already 'comprehensive' laws for the evils of sexual abuse and exploitation (594). In addition, the penalties imposed by the statute assists in demonstrating its overbreadth (Ferber 773); Oakes was sentenced to ten years in prison and could have been given a $50,000 fine based upon ten photographs alone (596). The statute could be narrower and yet achieve its purpose. Citing Houston v. Hill (1987): '[t]he ordinance's plain language is admittedly violated scores of times daily, yet only some individuals... are arrested' (598). The Supreme Court was unable to resolve this controversy because even the nine Justices, eight of whom participated in Ferber, do not have a clear consensus as to the ultimate intent of that decision. The sexual exploitation of children is agreed upon to be the evil addressed, but the exact boundaries and characteristics of that evil are highly subject to individual construction; Scalia and Brennan argue past, not to, each other in Oakes. What Scalia finds speculative, Brennan find substantial (Moran 230). Scalia is unsure any private art work should be exempted, while Brennan would allow displays of nude minors in commercial and other public venues, even pornographic displays under certain circumstances. Scalia believes that the 'chilling effect' is presently insubstantial, but that there is a danger of encouraging behavior (Young v. American Mini Theatres (1976) 60); Brennan considers the absence of these depictions to be proof of a chilling effect. Scalia would place the default burden on artists and parents; Brennan would place it on the state. The underlying values which determine these viewpoints are not based in legal doctrine; the conflicts in Oakes and the other cases and investigations in this paper demonstrate why legal doctrine is necessary, for there presently is a chaos of application, enforcement, and construction. For lack of guidance, actors must follow their own principles and values or attempt to second-guess those of legislators and/or the Supreme Court. The result is inconsistency. This is evident even within Ferber. It is somewhat ludicrous to suggest that adults can fulfill every artistic role intended for a minor, nor that the effects of this type of restriction upon art and free speech are negligible (Jaeger 619). Constructing a legal definition of child pornography that better accounts for free speech and privacy interests may not be a simple task, but it is a vitally important one. The absolute and yet incomplete standards presently in use have left no one, prosecutor, defendant, crusader, or legislator completely satisfied and have created a increasingly nebulous area of law. There may be a danger in 'suppressing protected expression by allowing the hand of the censors to become unduly heavy' (Ferber 756); however, First Amendment overbreadth doctrine is an exceptional and potentially devastating last resort medicine (Brief for Petitioner 10). Individuals believe that any minor nudity is exploitative, that the act of taking a photograph is separable from free expression. (Brief of the District Attorney 8); others individuals such as Alan Dershowitz assert that almost any parent may be pursued by zealots under current law (English). The Citizens for Decency Through Law proposed that a requirement of 'purient purpose' would prevent 'morally innocent' prosecutions (Brief 41); Covenant House and the National Center for Missing and Exploited Children assert that any standard such as 'lewdness' is illogical because it is dependent on depend on responses that transpire after a work's creation (Brief 20). Four weeks after the Massachusetts Supreme Judicial Court issued it final ruling in Commonwealth v. Oakes, the Supreme Court announced its decision in Osborne v. Ohio (1990). Although the case was a step towards a more coherent, if not civil liberties-oriented, judicial doctrine on child pornography, it was far from a complete step. The ruling validated laws prohibiting the simple possession of child pornography and gave child pornography a broader definition than in Ferber; it also validated statutes that implicate simple nudity although are given a more limited construction by state courts, such as of 'where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals' (112). The implications of this ruling for artists and families is unclear. The statute applies to possession, not creation, and individuals' wards and children are exempted. But although the Court recognized that the statute's construction might criminalize some constitutionally protected conduct, it declined to find the instances significant enough to warrant overbreadth (113). Therefore, child pornography statutes that address legitimate works of art and photographs not intended for dissemination beyond the family have in the past decade provided serious dilemmas, and not just for civil libertarians. Due to a lack of comprehensive judicial doctrine, the application, enforcement, and construction of these laws has been subjective. The consequences have been the outcome of a mixture of individual standards, intense ideology, and unclear criterion to distinguish speech and conduct and the significance of intent. -- Jolyon A. Silversmith __________________________________________________________ silvers3@husc.harvard.edu President "Eternal Vigilance is Mather House 100 ACLU of Harvard College the Price of Liberty" Cambridge, MA 02138 ____________________________________________________________ Article 51853 of alt.sex: Relay-Version: VMS News - V6.0-3 14/03/90 VAX/VMS; site husc3.harvard.edu Path: husc-news.harvard.edu!husc8.harvard.edu!silvers3 Newsgroups: alt.sex Subject: REPOST: Child Porn Appendices (Was: Is Porn Legal?) Message-ID: <1992Aug18.110636.14850@husc3.harvard.edu> From: silvers3@husc8.harvard.edu (Jolyon Silversmith) Date: 18 Aug 92 11:06:35 EDT References: <1992Aug18.042134.19955@mnemosyne.cs.du.edu> <1992Aug18.083258.10737@nntp.uoregon.edu> Organization: Harvard University Science Center Nntp-Posting-Host: husc8.harvard.edu Lines: 528 The previous version of this post was rather horribly garbled, despite the instruction of someone who claimed to know what they were doing :(. Hopefully this will work better. This is the appendix and bibliography of a term paper written in May, 1992 for Government 1341: Constitutional Law at Harvard University by Jolyon A. Silversmith. This document is not in the public domain; however, excerpts and the document as a whole may be used freely if properly attributed and not altered as to distort the meaning and intent of the original document. Contact with the author at silvers3@husc.harvard.edu is appreciated but not required. The tabs in this document are set for use in Times 14 The Application of Child Pornography Statutes to Non-Obscene Art and Family Photography Appendix: Excerpts from the Child Pornography Statutes of California, Illinois, Massachusetts, New York, Ohio, Virginia, and the United States California Penal Code, Sexual Crimes Against Person, Etc., $ 311-Obscene Matter $ 311.3 Depicting by film, photograph, videotape, etc. sexual conduct by person under age 14; punishment; exemptions (a) A person is guilty of sexual exploitation of a child when he or she knowingly develop, duplicate, print, or exchange any film, photograph, video tape, negative or slide in which a person under the age of 14 years engaged in an act of sexual conduct. (b) as used in this section 'sexual conduct' means any of the following: (1) Sexual intercourse, including genital-genital, oral-genital, anal- genital, or oral- anal, whether between persons of the same or opposite sex or between humans and animals. (2) Penetration of the vagina or rectum by any object. (3) Masturbation, for the purpose of sexual stimulation of the viewer. (4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer. (5) Exhibition of the genitals, pubic, or rectal areas of any person for the purpose of sexual stimulation of the viewer. (6) Defecation or urination for the purpose of sexual stimulation of the viewer. (c) Subdivision (a) shall not apply to the activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses or to legitimate medical, scientific, or educational activities, or to lawful conduct between spouses. (e) The provisions of this section shall not apply to an employee of a commercial film developer who is acting within the scope of his employment and in accordance with the instructions of his employer, provided that the employee has no financial interest in the commercial developer by which he is employed. $ 311.4 Employment or use of minor to perform prohibited acts; previous conviction; exception (c) Every person who, with knowledge that a person is a minor under the age of 17 years, or who, in possession of any facts on the basis of which he or she should reasonably know that a person is a minor under the age of 17 years, or any parent or guardian of a minor under the age of 17 years under his or her control who knowingly permits the minor, to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing a film, photograph, negative, slide or live performance involving sexual conduct by a minor under the age of 17 years alone or with other persons or animals, is guilty of a felony. It shall not be necessary to prove commercial purposes in order to establish a violation of this subdivision. (d) As used in subdivisions (b) and (c), 'sexual conduct' means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals, pubic, or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans or animals. An act is simulated when it gives the appearance of being sexual conduct. (e) This section shall not apply where the minor is legally emancipated, including lawful conduct between spouses when one or both are under the age of 17. $ 311.11 Possession or control of matter depicting a person under the age of 14 years engaging in or simulating sexual conduct; punishment; previous condition (a) Every person who knowingly possesses or controls any matter, the production of which involves the use of a person under the age of 14 years, knowing that the matter depicts the person under the age of 14 years personally engaging in or simulating sexual conduct... is guilty of a public offense.... (c) It is not necessary to prove that the matter is obscene in order to establish a violation of this section. (d) This section shall not apply to drawings, figurines, statues, or any film rated by the Motion Picture Association of America.... Criminal Code of Illinois, Chapter 38, Sex Offenses, $ 11-20-Obscene Material $ 11-20.1 Child Pornography (a) A person commits the offense of child pornography who: (1) films, videotapes, photographs, or otherwise depicts or portrays by means of any similar visual medium or reproduction any child whom he knows or reasonably should know to be under the age of 18... where such child... is: (i) actually or by simulation engaged in any act of sexual intercourse with any person or animal; or (ii) actually or by simulation engaged in any act of sexual contact involving the sex organs of the child... and the mouth, anus, or sex organs of another person or animal; or which involves the mouth, anus, or sex organs of the child... and the sex organs of another person or animal; or (iii) actually or by simulation engaged in any act of masturbation; or (iv) actually or by simulation portrayed as being the object of, or otherwise engaged in, any act of lewd fondling, touching, or caressing involving another person or animal; or (v) actually or by stimulation engaged in any act of excretion or urination within a sexual context; or (vi) actually or by simulation portrayed or depicted as bound, fettered or subject to sadistic, masochistic, or sadomasochistic abuse in any sexual context; or (vii) depicted or portrayed in any pose, posture, or setting involving a lewd exhibition of the genitals, pubic area, buttocks, or, if such person is female, a fully or partially developed breast of the child or other person; or (4) solicits any child whom he knows or reasonably should know to be under the age of 18... to appear in a stage play, live presentation, film, videotape, photograph or other similar visual reproduction in which the child... is or will be depicted in any act, pose, or setting described in subparagraphs (i) through (vii) of paragraph (1) of this subsection; or (5) is a parent, legal guardian, or other person having care of a child whom the person knows or reasonably should know to be under the age of 18... and who knowingly permits or arranges for such child to appear in any stage play, live performance, film, videotape, photograph, or other similar visual presentation, portrayal, or simulation of any act described in subparagraphs (i) through (vii) of paragraph (1) of this subsection; or (6) with knowledge of the nature or content thereof, possesses any film, videotape, photograph or other similar visual reproduction of any child... whom the person knows or reasonably should know to be under the age of 18 engaged in any activity described in subparagraphs (i) through (vii) of paragraph (1) of this subsection. (b) (3) The charge of child pornography shall not apply to the performance of official duties by law enforcement or prosecuting officers, court personnel or attorneys, nor to bona fide treatment or professional education programs conducted by licensed physicians, psychologists, or social workers. $ 11-20.2 Commercial film and photographic print processor--Reports Any commercial film and photographic print processor who has knowledge of or observes, within the scope of his professional capacity or employment, any film, photograph, videotape, negative or slide which depicts a child whom the processor knows or reasonably should know to be under the age of 18where such child is: (i) actually or by simulation engaged in any act of sexual intercourse with any person or animal; or (ii) actually or by simulation engaged in any act of sexual contact involving the sex organs of the child... and the mouth, anus, or sex organs of another person or animal; or which involves the mouth, anus, or sex organs of the child... and the sex organs of another person or animal; or (iii) actually or by simulation engaged in any act of masturbation; or (iv) actually or by simulation portrayed as being the object of, or otherwise engaged in, any act of lewd fondling, touching, or caressing involving another person or animal; or (v) actually or by simulation engaged in any act of excretion or urination within a sexual context; or (vi) actually or by simulation portrayed or depicted as bound, fettered or subject to sadistic, masochistic, or sadomasochistic abuse in any sexual context; shall report such instance to a peace officer immediately or as soon as possible. In The Illinois Revised statutes of 1981, Chapter 38 $ 11-20a(b)(2) reads '[a]ny person who photographs, films, videotapes, produces, publishes or otherwise creates child pornography, or knowingly causes another to do so, commits a... felony....' $ 11-20a(a)(1) (A) through (D) asserts that '[m]atter or a performance, whether live, cinematic, or over broadcast media, of whatever nature, is 'child pornography'... if: (A) it has one of its participants or portrayed observers a child under the age of 16 or who appears pre-pubescent; and (B) it contains depiction or descriptions of sexual conduct which are patently offensive; and (C) taken as a whole, the average person, applying contemporary standards of this State, would find it has as its dominant theme an appeal to purient interest; and (D) taken as a whole it lacks serious literary, artistic, educational, political, or scientific purpose or value.' $ 11-20a(a)(2) (A) through (F) are essentially equivalent to the contemporary $ 11-20.1(a)(1) (i) through (vii); they provide that sexual conduct includes any sexual intercourse, normal or perverted, actual or simulated or exhibition of the genitals or pubic area of any person. General Laws of Massachusetts, $ 272-Crimes Against Chastity, Morality, Etc. $ 272-29A. Child Pornography; Enticement, Solicitation, Employment, Etc. of Children (a) Whoever, either with knowledge that a person is a child under eighteen years of age or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, and with lascivious intent hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment.... (b) Whoever, either with knowledge that a person is a child under eighteen years of age or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to participate or engage in any act that depicts, describes, or represents sexual conduct for the purpose of representation or reproduction in any visual material, or to engage in any live performance involving sexual conduct, shall be punished by imprisonment.... (c) In a prosecution under this section, a minor shall be deemed incapable of consenting to any conduct of the defendant for which said defendant is being prosecuted. $ 272-29B. Child Pornography; Dissemination of Material Depicting Sexual Conduct by Children (e) Pursuant to this section, proof that dissemination of any visual material that contains a representation or reproduction of sexual conduct or of any posture or exhibition in a state of nudity involving the use of a child who is under eighteen years of age was for a bona fide scientific, medical, or educational purpose for a bona fide school, museum, or library may be considered as evidence of a lack of lascivious intent. $ 272-31. Definitions 'Lascivious intent,' a state of mind in which the sexual gratification or arousal of any person is an objective. For the purposes of prosecution under this chapter, proof of lascivious intent may include, but shall not be limited to, the following: (1) whether the circumstances include sexual behavior, sexual relations, infamous conduct of a lustful or obscene nature, deviation from accepted customs and manners, or sexually oriented displays; (2) whether the focal point of a visual depiction is the child's genitalia, pubic area, or breast area of a female child; (3) whether the setting or pose of a visual depiction is generally associated with sexual activity; (4) whether the child is depicted in an unnatural pose or inappropriate attire, considering the child's age; (5) whether the depiction denotes sexual suggestiveness or a willingness to engage in sexual activity; (6) whether the depiction is of a child engaging in or being engaged in sexual conduct, including, but not limited to, sexual intercourse, unnatural sexual intercourse, bestiality, masturbation, sadomasochistic behavior, or lewd exhibition of the genitals. 'Minor,' a person under eighteen years of age. 'Nudity,' uncovered or less than opaquely covered human genitals, pubic areas, the human female breast below a point immediately above the top of the areola, or the covered male genitals in a discernibly turgid state. For purposes of this definition, a female breast is considered uncovered if the nipple or areola only are covered. 'Sexual conduct,' human masturbation, sexual intercourse, actual or simulated, normal or perverted, any lewd exhibition of the genitals, flagellation or torture in the context of a sexual relationship, any lewd touching of the genitals, pubic areas, or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals, and any depiction or representation of excretory functions in the context of a sexual relationship. Sexual intercourse is simulated when it depicts explicit sexual intercourse which gives the appearance of the consummation of sexual intercourse, normal or perverted. 'Visual material,' any motion picture film, picture photograph, videotape, any book, magazine, or pamphlet that contains pictures, photographs, or similar visual representations or reproductions.... $ 29A and $ 29B were rewritten after $ 29A was declared unconstitutional by the Supreme Judicial Court of Massachusetts in 1988 to include provisions for 'lascivious intent' as well as additional minor grammatical and organizational changes. Further definitions were added to $ 31 and others revised at that time as well. Previously nudity had been defined as 'uncovered or less than opaquely covered post-pubertal human genitals, pubic areas, the post-pubertal female breast below a point immediately above the top of the areola, or the covered male genitals in a discernibly turgid state. For purposes of this definition, a female breast is considered uncovered if the nipple or areola only are covered. In the case of pre-pubertal persons nudity shall mean uncovered or less than opaquely covered pre-pubertal genitals or pubic area.' New York Code, Penal Law, $ 263-Sexual Performance by a Child $ 263.00 Definitions As used in this article the following definitions shall apply: (1) 'Sexual performance' means any performance or part thereof which includes sexual conduct by a child less than sixteen years of age (2) 'Obscene sexual performance' means any performance which includes sexual conduct by a child less than sixteen years of age in any material which is obscene.. (3) 'Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals. (4) 'Performance' means any play, motion picture, photograph, or dance. Performance also means any other visual representation exhibited before an audience. (6) 'Simulated' means the explicit depiction of any of the conduct set forth in subdivision three of this section which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks. $ 263.05. Use of a child in a sexual performance A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes, or induces a child less than sixteen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such a child, he consents to the participation by such child in a sexual performance. $ 263.10 Promoting an obscene sexual performance by a child A person is guilty of promoting an obscene sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any obscene performance which includes sexual conduct by a child less than sixteen years of age. $ 263.15 Promoting a sexual performance by a child A person is guilty of promoting an sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age. Ohio Code, Crimes-Procedure, $ 2907-Sex Offenses $ 2907.321 Pandering obscenity involving a minor (A) No person, with knowledge of the character of the material or performance involved, shall do any of the following: (1) Create, reproduce, or publish any obscene material that has a minor as one of its participants or portrayed observers; (5) Possess or control any obscene material that has a minor as one of its participants; (B) (1) This section does not apply to any material or performance that is sold, disseminated, displayed, possessed, controlled, brought or cause to be brought into this state, or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance. $ 2907.322 Pandering sexually oriented matter involving a minor (A) No person, with knowledge of the character of the material of performance involved, shall do any of the following: (1) Create, record, photograph, film, develop, reproduce, or publish any material that shows a minor participating or engaging in sexual activity, masturbation, or bestiality; (5) Solicit, receive, purchase, exchange, possess or control any material that shows a minor participating or engaging in sexual activity, masturbation, or bestiality; (B) (1) This section does not apply to any material or performance that is sold, disseminated, displayed, possessed, controlled, brought or cause to be brought into this state, or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance. $ 2907.323 Illegal use of minor in nudity-oriented material or performance (A) No person shall do any of the following: (1) Photograph any minor who is not the person's child or ward in a state of nudity, or create, direct, produce, or transfer any material or performance that shows the minor in a state of nudity, unless both of the following apply: (a) The material or performance is, or is to be, sold, disseminated, displayed, possessed, controlled, brought or cause to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance; (b) The minor's parents, guardian, or custodian consents in writing to the photographing of the minor, to the use of the minor in the material or performance, or to the transfer of the material and to the specific manner in which the material or performance is to be used. (2) Consent to the photographing of his minor child or ward, or photograph his minor child or ward, in a state of nudity or consent to the use of his minor child or ward in a state of nudity in any material or performance, unless the material or performance is sold, disseminated, displayed, possessed, controlled, brought or cause to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance. (3) Possess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity, unless both of the following apply: (a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought or cause to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance; (b) The person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred. Code of Virginia, Crimes and Offenses Generally, $ 18.2 $ 18.2-374.1. Production, publication, sale, possession with intent to distribute, financing, etc., of sexually explicit items involving children; presumption as to age; severability. A. For the purposes of this article... 'sexually explicit visual material' means a picture, photograph, drawing, sculpture, motion picture film or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity... or sexual excitement, sexual conduct or sadomasochistic abuse... or a book, magazine, or pamphlet which contains such a visual representation.... B. A person shall be guilty of a class 5 felony who: 1. Accosts, entices, or solicits a person less than eighteen years of age with intent to force such person to perform in or be a subject of sexually explicit visual material; 2. Produces or makes or attempts to or prepares to produce or make sexually explicit visual material which utilizes or has as a subject a person less than eighteen years of age; or 3. Who knowingly takes part in or participates in the filming, photographing or other reproduction of sexually explicit visual material which utilizes or has as a subject a person less than eighteen years of age; United States Code, Title 18, Chapter 110-Sexual Exploitation of Children. $ 2251. Sexual exploitation of children (a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct shall be punished... if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce.... (b) Any parent, legal guardian, or person having custody or control of a minor who knowingly permits such minor to engage in... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct shall be punished... if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce.... $ 2256. Definitions for chapter For the purposes of this chapter, the term -- (1) 'minor' means any person under the age of eighteen years; (2) 'sexually explicit conduct' means actual or simulated -- (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person; $ 2257. Record keeping requirements (a) Whoever produces any book, magazine, periodical, film, videotape, or other matter which -- (1) contains one or more visual depictions made after February 6, 1978 of actual sexually explicit conduct; (2) is produced in whole or part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transport in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction. Table of Cases and Works Cited Commonwealth v. Douglas Oakes, 401 Mass. 602 (1988) Commonwealth v. Douglas Oakes, 407 Mass. 92 (1990) Massachusetts v. Douglas Oakes, 491 U.S. 576 (1989) and briefs in the Supreme Court of the United States on Petition for a Writ of Certiorari to the Supreme Judicial Court for the Commonwealth of Massachusetts for the Petitioner and Respondent and briefs amici curiae in support of Petitioner and in support of Respondent. New York v. Ferber, 458 U.S. 747 (1982) Osborne v. Ohio, 495 U.S. 103 (1990) The People of the State of Illinois v. William Lerch, 134 Ill. App. 3d 643 (1985) Atkins, Robert. 'Art Police Strike in S.F.' The Village Voice. 12 June 1990: 75-76. Avril, Nanette Ann. 'Constitutional law-Massachusetts's Child Pornography Statute Declared Unconstitutionally Overbroad.' Suffolk University Law Review, Fall 1988: 877-885. Bishop, Katherine. 'Photos of Nude Children Spark Obscenity Debate.' The New York Times. 23 July 1990: A8. Bossert, Rex. 'Artist Seeks Return of Nude Photos.' The Los Angeles Daily Journal. 7 February 1991: 3. Brelis, Matthew. 'Supreme Court sends pornography case back to SJC.' The Boston Globe. 22 June 1989: 29. Carelli, Richard. 'Supreme Court to hear Mass. child porn case.' The Boston Globe. 24 May 1988: 3. De Grazia, Edward. 'The Big Chill: Censorship and the Law.' Aperture. Fall 1990: 50. English, Bella. 'In defense of children.' The Boston Globe. 11 January 1989: 17. Ginsberg, Allen and Joseph Richey. 'The Right to Depict Children in the Nude.' Aperture. Fall 1990: 41-49. Hentoff, Nat. 'This Is Child Porn?' The Washington Post 2 August 1984: A15. Hess, Elizabeth. 'Snapshots, art, or porn?' The Village Voice. 25 October 1988: 31-32. Jaeger, Eric. 'The Regulation of Non-Obscene Nude Photography of Children.' Boston College Law Review. March 1989: 614-620. Jenkins, Kent Jr. 'Artist Won't Be Charged in Child Photo Case.' The Washington Post. 4 August 1988: D1, D6. Jenkins, Kent Jr. ''Explicit Photos of Children Land Va. Mother in Court. The Washington Post. 19 July 1988: B1, B5. Jenkins, Kent Jr. 'Va. Artist Wins Custody of Children.' The Washington Post. 25 August 1988: D1. Jenkins, Kent Jr. 'Va. Photos Put Focus on Fiery Issues.' The Washington Post. 8 August 1988: D1, D5. Jordan, Mary. 'Father Accused of Abuse Wins $55,000 in Suit Against Fairfax Police.' The Washington Post 27 August 1987: C1, C4. Kaltenheuser, Skip. ''They Don't Understand My Art.'' Legal Times. 26 September 1988: 1, 16-17. Kennedy, John H. 'High court set to hear Mass. child-porn appeal.' The Boston Globe. 16 January 1989: 13, 15. Kenney, Charles. 'Child pornography law signed.' The Boston Globe. 21 July 1982: 17. Moran, Tim. 'First amendment overbreadth doctrine.' Harvard Civil Rights- Civil Liberties Law Review. Winter 1990: 221-239. Osanka, Franklin Mark and Sara Lee Johann. Sourcebook on Pornography. Lexington, Massachusetts: D. C. Heath and Company, 1989: 12-13, 448- 468, 510-512. 'Panel Rejects Pornography Case.' The New York Times. 15 September 1991: 29. Shapiro, Bruce. 'The Art Cops.' The Nation. 9 July 1990: 40-41, 57. Stanley, Lawrence A. 'Art and 'Perversion.'' Art Journal. Winter 1991: 20-27 Stanley, Lawrence A. 'The Child Porn Myth.' Cardozo Arts and Entertainment Law Journal. Winter 1989: 295-358. 'Supreme Court is asked to study overturned child pornography law.' The Boston Globe. 2 April 1988: 72. Tallman, Susan. 'Innocence, Experience, and Naked Teenagers.' Arts Magazine. Summer 1991: 25-26. Udesky, Laurie. 'When Innocence is Called Obscene.' The Progressive. September 1990: 13. Wilkes, Anastasia. 'Sturges Sues FBI.' Art in America. March 1991: 167. Wilkes, Anastasia. 'Sturges Wins in Court.' Art in America. April 1991: 33. The tabs in this document were set to preserve the original formatting of the statutes. As a result, without several hours of work, they do not adapt well to 80 columns. This document was originally written in Times 14; for best viewing, download this file and view it in that or a similar font. -- Jolyon A. Silversmith __________________________________________________________ silvers3@husc.harvard.edu President "Eternal Vigilance is Mather House 100 ACLU of Harvard College the Price of Liberty" Cambridge, MA 02138 ____________________________________________________________