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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, Jan. 31, 2000  

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:

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.

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).

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.

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


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