According to Hatch, et al., a danger is posed to children because pornographic depictions may be created from conventional images of fully-clothed children or images of adults "morphed" down to child-like form with the result that law enforcement officials would be unable to tell whether a "real" child ever engaged in the "sexually explicit conduct" shown. The purported harm is two-fold. First, a real child who had not actually engaged in "sexually explicit conduct," but was depicted as engaging in such conduct, would be profoundly embarrassed to the point of suffering serious psychological harm equivalent to that caused by actual sexual abuse. (This is what the Hatch proposal says.) To place this in further perspective, a written fantasy in which a child is nude or engaged in sex would be cause only for a libel action if the story were published and some real person recognized him- or herself in the text. A visual depiction of the same fantasy would be punishable by a jail term of up to ten years even if it was never disseminated, but simply kept in the privacy of the creator's home. In other words, the Hatch proposal would not only blur the line between fantasy and reality, it would invade the wholly private sphere with all the power of the state.
Second, Hatch worries, where no actual child is recognizable, the image will be used to seduce innocent children into "having fun." ("Having fun" are Hatch's words.) The claim that images of children nude or engaged in sexual acts are "often" used to seduce children into "having fun" is a law enforcement myth. Both the psychological literature and clinical experience have established the simple fact that most adults who engage in sexual conduct with minors have little or no exposure to child pornography. In fact, they have little or no exposure to pornography of any kind.
As Kenneth Lanning, the FBI's most knowledgeable authority on child pornography and paedophilia testified before the Meese Commission (and as many other experts will attest), when adults who engage in sex with children do use pornography to stimulate a minor's sexual interest, materials such as Playboy or conventional adult pornography are most likely to be used. Others who testified before the Meese Commission feared that adults might share The Joy of Sex or Nancy Friday's books with children in order to introduce them to sex. Common sense would support this view. If someone wished to seduce a child, what better way than to show the child images of adults doing grown-up things? On the other hand, many children would run screaming if an adult showed them pornography, especially child pornography, but would find candy, money, drugs, and alcohol sufficient inducement to engage in sex. Has anyone thought to outlaw these?
Hatch's proposal is a dangerous expansion of current law. Under 18 U.S.C. Section 2256, "sexually explicit conduct" means, in addition to actual sex (i.e., masturbation, intercourse, anal sex, fellatio, cunnilingus), a "lascivious exhibition of the genitals." When the phrase was first used in the early 1970s, it referred to images in which the model was opening her legs and inviting the viewer by her physical posture and enticing facial expression. In other words, "beaver" shots. The word no longer has this meaning under the federal child pornography law. Now the phrase refers to images in which the genitals are simply visible and the viewer is able to read some erotic intent or content. One case which has been quoted favorably throughout the federal courts defines a "lascivious exhibition of the genitals" as a pose where any one of the following might apply: the focal point of the visual depiction appears to be on the child's genitalia or pubic area; the setting of the visual depiction is "sexually suggestive;" the child is depicted in an "unnatural" pose, or in "inappropriate" attire; the depiction (not necessarily the child) suggests sexual coyness or a willingness to engage in sexual activity; or the depiction is apparently intended or designed to elicit a sexual response in the viewer.
Under United States v. Knox, the phrase "sexually explicit conduct" was expanded to include not only depictions in which the genitals are visible, but those in which the clothing covering the genitals is visible. (The Knox case explains why the Justice Department announced that it would investigate Calvin Klein for "child pornography.") In the Knox case the Third Circuit also found that images of fully-clothed children made on playgrounds weighed in favor of a finding of "lasciviousness," since playgrounds are associated with children and adults who are sexually attracted to children would find playgrounds more alluring than, say, super- markets.
The Hatch proposal would take this already vast (and very dangerous) gray area and add a proscription on depictions in which buttocks and (female) breasts are visible. Presumably the new law will also apply to images in which the clothing covering the buttocks and breasts are visible. Family snapshots of children in the proverbial nude pose on a bearskin rug would now be actionable. The child in the bathtub who turns its genitals away from the camera and sticks out its behind may well be found to be engaging in a "lascivious" exhibition of the buttocks. The "wrong" facial expression or "saucy" gesture will make the difference between innocence and the jailhouse door.
As if this weren't serious enough, the Hatch proposal will also criminalize drawings, paintings, and other images created with or entirely without computer, which depict minors (under 18) engaged in sex or in which the minor's genitals, breasts, or buttocks are visible and some erotic element is perceived. The possibilities for prosecution are endless and the sentences are drastic: the creation of a single image is punishable by a minimum sentence in excess of three years. Such sentences do not involve parole, which was eliminated for all federal prisoners in 1987. (Federal prisoners must now serve 85% of their sentences.)
Mainstream artists and photographers whose work is already published are, generally-speaking, not in danger from this law. It is unlikely that the feds will raid the museums and galleries to seize the work of world-famous artists such as Balthus (whose highly erotic work of pubescent girls is created using real pubescent models), Caravaggio, Egon Schiele, Hans Bellmer, Gaughin, Henry Scott Tukes, Thomas Eakins, Alice Neel, Eric Fischl, Graham Ovenden, Sidney Goodman, Mike Cockrill, R. Crumb, Leonor Fini, or Rita Ackerman. But works by each of these artists do run afoul of S.1237. The feds are also unlikely to engage in a book-burning campaign of mainstream books by such photographers David Hamilton, Jock Sturges, Sally Mann, and Graham Ovenden. Then again, work by each of these photographers has been questioned, although not prosecuted, by the authorities over the past several years. There is little question but that if the S.1237 is passed, lesser known artists -- and everybody else -- will be well-advised to create, publish, or possess artwork depicting children on less censorious shores.
How could these expansions serve to protect children? Under the current child pornography laws, abuses by prosecutors have been rampant. Hundreds of parents have been arrested after taking harmless snapshots of their children to local film labs. It is beyond question that artists and publishers have been chilled from creating and publishing images of nude children -- although there is no evidence that the thousands of children depicted nude in mainstream (not pornographic) magazines and books over the past century have ever suffered psychological harm. (In fact, those who are interviewed about their experiences of being depicted nude generally attest to the harmlessness or benefits of their experiences.) Despite the fact that law enforcement officials, prosecutors and courts often make it so, sex and nudity are not synonymous.
As law enforcement officials have already admitted to the press in the wake of the AOL child pornography sting operation, current law is sufficient to protect real children from being harmed from participation in child pornography. (Unfortunately, in its excesses the current law is also harmful to the welfare of children and society. But that is another article.) In instances of "morphed" child pornography which does not involve the use of a real child engaged in sex, current law (and case law interpreting current law) places the burden of proof wholly on the defendant to prove that the visual depiction did NOT depict an actual minor. The government is not required to prove that a real child was involved. If the defendant fails in his or her proof, s/he goes to jail. Period. In order to protect real children from participation in child pornography, law enforcement officials need only enforce current law against depictions of real children engaged in real sex -- not chase fantasies and their depiction in art.
Copyright (c) 1995 Lawrence A. Stanley, Esq. This article may be freely posted to any newsgroup on the Internet. All other reproduction by any means is subject to the prior written consent of the writer.