>From: "Peter McWilliams" >Subject: Undelieveable! >Date: Mon, 31 Jan 2000 04:40:59 -0800 >X-Mozilla-Status: 8001 >X-Mozilla-Status2: 00000000 > > >Does the insanity never end? > >Enjoy, > >Peter > > >---------------------------------------------------------------------------- >---- > > > > > >-------------------------------------------------------------------------- > > salon.com > Mothers Who Think Jan. 31, 2000 > URL: http://salon.com/mwt/feature/2000/01/31/kincaid/index.html > > Is this child pornography? > > American photo labs are arresting parents as child pornographers for >taking pictures of their kids in the bath. > > - - - - - - - - - - - - > By James R. Kincaid > > Picture this: A photo of a boy and girl -- unmistakably naked, posed >and giggling -- holding two very large sausages (Italian?). The boy is maybe >8, the girl maybe 6. They are not touching each another, nor does the camera >seem especially interested in their genitals. What catches the eye are those >sausages, but not that they are involved in anything you or I would call, >right off, sexual: They are not being licked, stroked or inserted. They are >more atmospheric, I guess you could say. > > Is this child pornography? Well, if you are a photo lab manager in >Burbank, Calif., you follow the in-store policy and ask the store manager. >The store manager, noticing the nudity and the meat, follows what he takes >to be the law and calls the Burbank police. The police send two undercover >cops out with instructions to nab the photographer. The cops then order the >photo lab manager to phone the customer, tell him his prints are ready and >instruct him to come pick them up right away. > > The customer agrees to drop everything and run over, but then doesn't >show, forcing the undercover police to cool their heels for six hours before >giving up. Later the cops do nab the suspect, who says the photos were taken >by the kids' uncle who thought the children's play with the sausages was >"funny." The Burbank police decide to let it go with a warning laced with >disgust: There's nothing "funny" about photos like these, photos that are >indecent, degenerate and, next time, criminal. > > As a script written for the Keystone Kops, this much ado about >sausages scenario would be funny. But it is a true story. It is a sorry saga >about our confused desires when it comes to kids and sex, and the way these >collective desires are reflected in our failure to clearly define and >execute the laws governing child pornography. This black comedy set in >Burbank proves a scary point: At this time there is no way to >differentiate -- legally -- between a family snapshot of a naked child and >child pornography. > > Not that photo labs don't try. They do, and every now and then they >light upon (or concoct) what they take to be a case of child pornography. >There are about 10 cases in the last dozen years that have emerged in the >press. Some are worthy of mention here, mostly because they weren't worthy >of attention when they occurred: > > > a.. William Kelly was arrested in Maryland in 1987 after dropping off >a roll of film that included shots his 10-year-old daughter and younger >children had taken of each other nude. > > > > b.. David Urban in 1989 took photos of his wife and 15-month-old >grandson, both nude, as she was giving him a bath. Kmart turned him in and >he was convicted by a Missouri court (later overturned). > > > > c.. A gay adult couple in Florida decided to shave their bodies and >snap their lovemaking, convincing a Walgreens clerk that one of them was a >child. They are suing the Fort Lauderdale police. > > > > d.. More recently, Cynthia Stewart turned in bath-time pictures of her >8-year-old daughter to a Fuji film processing lab in Oberlin, Ohio. The lab >contacted the local police, who found the pictures "over the line" and >arrested the mother for, among other things, snapping in the same frame with >her daughter a showerhead, which the prosecution apparently planned to >relate somehow to hints of masturbation. > > > Even though the number of arrests is not large and the circumstances >seem ridiculous, this photo lab idiocy is a serious matter: It puts all of >us at risk, and it significantly erodes free speech protection by insisting >that a photograph of a child is tantamount to molestation. Since it is what >is outside the frame (the intention of the photographer, the reaction of the >viewer) that counts legally, we are actually encouraged to fantasize an >action in order to determine whether or not this is child pornography. > > Every photo must pass this test: Can we create a sexual fantasy that >includes it? Such directives seem an efficient means for manufacturing a >whole nation of pedophiles. > > The laws, whether state or federal, are inevitably firm-jawed when it >comes to meting out punishment to child pornographers. But they seem >uncertain both in what it is they want to put an end to and how far they >want to reach into our home photo albums to do it. > > In the great sausage caper, the photo lab operator and the Burbank >police acted as our representatives to decide whether pictures of children >and sausages constitute child pornography. This suggests that they have a >clear idea of what a child is and that they know porn when they see it. What >this also means is that we have a system that allows criminal conduct to be >determined by just about anybody. > > So, how do I know which kid pictures I can take to Wal-Mart, and how >does the Wal-Mart photo guy know when to call the police about my pictures? >The short answer is that there is no way I can know because there is no way >he can know. > > Some states require that photo labs report any photo that they deem >suspicious to the police while others do not, but none give much help in >explaining what suspicious photos of children actually look like. State law >on child pornography is murky at best, and it varies from state to state. >And when a photo lab sends its material to another state for developing, >federal laws (which may differ from the state laws, but are equally murky) >come into play. > > In the absence of clear jurisdictional authority, much less clear >laws, anyone snapping pictures of kids and wanting to avoid the slammer >might decide to simply ask about the policies of their local labs and the >corporations that direct them. How do they separate those who are simply >charmed by their naked kids from those who seek to charm others for profit? > > I expended no little energy trying to unearth the guidelines from the >corporate headquarters of photo developing giants. I may as well have tried >to get to the bottom of Cosa Nostra rub-out policies by making a few calls. >I did discover that the world of photo developing is surprisingly small and, >perhaps not so surprisingly, secretive. > > When one talks to people at the top, as I did, one finds a penetrating >and pervasive fear of public exposure. My sources promised to speak only on >guarantee of anonymity. Too many lawsuits are pending and too many threats >of others simmer to allow policy issues to be made public, said a top lawyer >at one of the nation's largest photo developing companies. > > Still, according to all my sources (which include executives on the >corporate level and also five local photo-lab people incautious enough to >spill the beans), the correct procedures for handling questionable >photographs are never clear and they vary -- even within the same >corporation -- according to state law. They do not pertain to erotic >pictures of adults unless they appear to depict rape or some other illegal >activity. (Or unless one of the adults could be mistaken for a child.) > > Kids are different. Naked kids under the age of 5 or 6 are probably >OK, so long as nothing else in the picture invites suspicion. Nudity in >older children may be a problem -- or maybe not. It is up to the lab person >or a supervisor to consult his or her own sense of propriety and moral >sensitivities, as well as any rough-and-ready training that has been given >in how to determine whether a photo constitutes child pornography. > > Actually, given that the focus of the law has shifted from the photo >to the reaction of the viewer, the wise technician will consult his or her >loins: A turn-on means porn. > > In any case, it seems obvious that only a society under great stress, >wanting to look at kids' bodies and blame it on somebody else, would >tolerate dissemination of its policing functions to photo development >clerks. We put photo labs in the position of resolving a massive cultural >confusion that is both vicious and duplicitous. > > No one, of course, is allowed to say that improper snapshots are not a >problem -- much less that child pornography in all forms is nothing but an >urban legend. Nevertheless, according to state police officials in >California, there is no commercially produced child pornography in this >country and hasn't been for some time. The risks of making it, they say, are >simply too great. > > Several speakers at an L.A. police seminar I attended a few years back >laughingly admitted that the largest collection of child porn in the country >is in the hands of cops, who edit and publish it in sting operations. There >is at most, they say, a small cottage industry among civilians in which >pictures (most of them vintage) are traded. > > Even so, one might argue that amateurs are pros-in-the-making and that >the problem of distribution is not solved by such a distinction. But as >Philip Stokes, a photographer and senior research fellow at Nottingham Trent >University, points out, although it may be true that somebody guilty of >assault on a child has nude photos of children, that does not allow us to >reverse the argument and say that possession of such photos means someone is >contemplating the act. One might as well assume, he says, that anyone >possessing antique magazines is on the road to burglary. > > The truth is that true research in this area is impossible, given that >it's illegal to look at anything that is or might be child pornography. As a >result, nobody knows exactly what child pornography is, what forms it takes, >where it is, how much of it exists -- or even if it exists. We seem happy >that nobody knows: That way we can take our fantasies, project them onto >phantom demons (the child pornographers) and feel righteous. > > As for kiddie porn developed by mainstream photo labs, I would bet >that it hardly exists at all. Oh sure, you may be able to find a case or >two, but, allowing for a certain hyperbole on my part, I would say that we >are off on another loud ride into fairyland, duplicating our earlier trips >into satanic ritual abuse and recovered memory accusations. > > We know that kids are not harmed by family snapshots or any other kind >of photography this side of snuff films and photographs that document actual >cases of assault, rape and other forms of violent coercion. So when was it, >exactly, that the law lost the ability to tell the difference between a >family snapshot and kiddie porn? > > The latest wave of confusion comes from two developments in the '80s >and early '90s: New laws were passed to differentiate child porn from >unapologetic adult hardcore porn, and a new philosophy of pornography >emerged that insisted that a potentially lurid photo can be considered not >just illegal but a criminal assault on its subject. > > We owe the latter assertion to the lamentably influential anti-porn >feminists Catherine MacKinnon and Andrea Dworkin. They argued that porn >(originally adult heterosexual porn) constituted not just image but >action -- action identical to sexual assault that is repeated each time the >photo is distributed or viewed. (They did not, however, bother to define >"pornography"; they assumed we all knew it when we saw it, which, in turn, >ensured that we could never really know when we were not seeing it.) > > Child protection experts used these arguments to redefine activities >that looked vaguely pedophilic as criminal actions. Child pornography became >tantamount to murder. Lloyd Martin, the infamous LAPD officer who was >considered a national expert on the dangers to children throughout the '80s, >popularized the equation. Any form of pedophilic activity, he announced, is >"worse than homicide." > > I think I'd rather my uncle take a picture of me with any number of >sausages than kill me, but the real question is: Why would we make such >comparisons? Why does a nude kid with a sausage make us think of murder? >What leads us to feel that family photos of naked kids might demand >attention? What are we criminalizing? What are we protecting? Can't we tell >the difference between a photo and an action? Even if the photos seem, to >some people and to some degree, erotic, so what? Can't we sense the erotic >without acting on it? Why do we pretend that photo lab operators and cops >are experts in the interpretation of images and the erotic impulses of those >who record them and those who look at them? > > The law provides no answers. In fact, we have made the key terms in >operative legal statutes so vague that we can hardly be certain that any >photo is clearly pornographic or, more to the point, not pornographic. > > In 1982 (N.Y. vs. Ferber), child pornography, as yet undefined, was >declared to have no artistic significance and to be indefensible on those >grounds. > > In 1984, child pornography was, for the first time, distinguished from >adult pornography in federal law and defined as the "lascivious exhibition >of genitals" in an underage subject. > > By 1989 (Mass. vs. Oakes), "nudity with lascivious intent" was added >to the definition. (All of this, I should add, is a part of federal law, >which comes into play only in cases of interstate activity. Otherwise it >functions as no more than a set of suggestions for state laws, which vary >widely and wildly.) > > The inclusion of "intent" shifted attention from the photo itself to >the motives of the photographer and even the receiver of the photo. As a >result, more laws were needed to list the elements that might provide clues >to the photographer's intentions. Now such things as a "visually suggestive >setting or pose," "inappropriate attire considering the child's age," a >suggestion of "sexual coyness," an intent "to elicit sexual response in >viewer" or the use of a photo, regardless of the photographer's intent, are >specified "factors" in making the determination as to whether or not a >picture of a child can be considered pornographic. > > And that's not all. The subject need not be naked for a photograph to >qualify as child pornography. In 1994, Janet Reno decreed: "Neither nudity >or [sic] discernability of genitals through clothing is a required element >of the offense." It is also not clear whether child pornography needs to >involve actual children. If the photo conveys the impression that a child is >involved in lascivious photos, that may be good enough. So morphed and >simulated photos may still be judged to have a devastating "secondary >effect" by stimulating the public appetite for such photos. > > The law leaves us in a fog surrounded by murk enveloped in blackness. >Sometimes adults who look like kids are photographed lasciviously. Other >times, what are clearly kids are pictured in what some regard as lascivious >attire. New York Mayor Rudy Guiliani and many others were deeply shocked by >a proposed Times Square billboard showing small boys in expensive underpants >bouncing on a suitably expensive couch. He thought it might encourage >lascivious thoughts -- not in him but in pedophiles. Calvin Klein backed >down and allowed the furor to give him the publicity the billboards were >aimed at. > > Makes one wonder. What would it take to produce a picture of a child >that was indubitably not pornographic? Put another way, why do we declare >some things innocent and some criminal, some cute and others disgusting? > > Consider this: Within the same cultural climate that sees sausages, >showerheads and sofas as erotic props, "Naked Babies," a book of photographs >of the same by Nick Kelsh with text by Anna Quindlen, is not just >acceptable -- it's in its second printing. Quindlen's prose -- full of >treacle and truism, bathos and balderdash -- provides a sentimental >counterpoint that negates any suspicions aroused by Kelsh's rain of naked >bodies: "Adults in the presence of a naked baby reach out their hands," she >oozes, "as though to warm themselves at the fire of perfection." > > But how exactly is it that nakedness is divine at one point and the >desire to touch it an act of flat-out reverence when, a few years later on >in the child's life, nakedness becomes shameful and any adults reaching out >hands to warm themselves at the fire of perfection will find themselves in >manacles? According to Quindlen, a naked baby is "androgynous," "sensual as >anything but not sexual at all," while "a boy, a girl -- well, they are >something else." > > I agree that children are at risk -- but not from cameras. Children >are put at risk by neglect, emotional and physical abuse, bad health care, >lousy education, lack of hope. Even sexual abuse, which ranks low among >their torments, is not a problem of stranger abductions, child >pornographers, priests or scout masters; it's a family problem. And we all >know that. It's so well-known it can, it seems, be ignored. > > Even sexual abuse, though it commands our attention, is not, >statistically, a highly significant form of child abuse. The National >Committee to Prevent Child Abuse reports that 11 percent of reports to child >protective agencies involve sexual abuse (a little higher than "other"), far >below physical abuse (30 percent) and neglect (47 percent). > > One almost wishes that what we call "abuse" were the only nightmare >kids have to face. For instance, 500,000 kids a year are classified as >"throwaways" by the FBI. They are not foster children nor runaways (there >are even more of those), but kids who really are set adrift, kids who would >like to stay somewhere if someone would let them. But nobody will. > > And yet we hurl our outrage and our resources and our art-critic >police headlong into solving the non-problem of improper snapshots. It's a >little like starting a campaign for flossing in the midst of the Black >Death. > > Our alarm at abuse through camera lenses is a clear instance of the >way we substitute a trivial problem for a perilous one. It is also a clear >instance of the confusion that drives us to do just that. We seem so >obsessed by the need to distinguish sharply between kids and eroticism that >we inevitably stir them together; meaning to put them in separate rooms, we >provide secret passageways so they can visit. We say so often and loudly >that there's nothing erotic about kids that we cement the association. > > We are so obsessed by the bodies of children and are so devoted to >protecting those bodies that we construct a world where very nearly everyone >(but us) is driven wild by the sight of a child. Though we treat people who >are sexually aroused by children as monsters possessed by feelings >altogether unknown to the rest of us, we also act as if they were >everywhere. > > We like to say that the child pornography business is enormous, a >multibillion-dollar industry; that the Internet is crawling with pedophiles >distributing kiddie porn as they go; that millions of children are sexually >molested by adults. > > At the same time, we act as though these predators are not of us, are >none of us, are as unknowable and rare as werewolves. Pedophiles are >everywhere and nowhere, common and freakish; above all, they act as >scapegoats for our own confused desires. We enter into heated mock battles >with them at the oddest places: day-care centers, Satanic sites, schoolrooms >and now photo labs. > > We would not find ourselves in the midst of such a collective mess if >we did not, on many levels, collectively want to be there. We all gain from >sideshows like photo lab stings. And what we gain is immunity from thinking >our own feelings. If we blame others loudly enough, we need not look at our >own hearts and desires. It is a Gothic world we create with simple villains >(the pedophiles) and equally simple rescuers (us). > > Jock Sturges, the art photographer who has spent years in court for >his photographs of children, analyzes all this very clearly for us: "I had >to pretend to be something that, quite frankly, I'm probably not, which is a >lily-white, absolutely artistically pure human being. In fact, I don't >believe I'm guilty of any crimes, but I've always been drawn to and >fascinated by physical, sexual and psychological change, and there's an >erotic aspect to that. It would be disingenuous of me to say there wasn't." > > So shines an honest man in a weary world. We all should be drawn to >and fascinated by the beautiful and the arresting, including beautiful and >arresting children, without being terrified by the erotic aspect in our >fascination. Admitting to an erotic attraction is not the same thing as >admitting to rape or assault: We do not commonly attack what we love and we >do not feel the need to act on every impulse. Finding something erotic does >not drive us irresistibly to mount it. We could use more complexity in our >thinking on this subject, more tolerance for difficulty. And a lot more >honesty. > > The price we allow our children to pay for our scapegoating cowardice >is enormous. Our kids, caught in the middle of all this, don't mind our >snapping lenses, but they do mind the ghastly world we picture for them. It >is a world filled with dangers around every curve, with safety only in >non-pedophilic adults and our friends, the police. We ought to examine more >searchingly if we are really doing all this for their good, if we really >need to see the world this way, if we aren't the ones afraid of the demons. >Especially the demons inside us. > salon.com | Jan. 31, 2000 > > > > - - - - - - - - - - - - > > About the writer > James R. Kincaid is the author of many books, including "Erotic >Innocence: The Culture of Child Molesting" and "Child-Loving: The Erotic >Child in Victorian Culture." He teaches at the University of Southern >California. > > > > >-------------------------------------------------------------------------- > > > > > > > >================================================================ > >This message is sent to you because you are subscribed to > the mailing list . >To unsubscribe, E-mail to: