April 1, 2012 by Tom Roberts, Esq.
Innocent Child Photographs and the Law
Billy, a minor child, using a disposable camera, took a number of photographs that one would expect from a 8 year old. Among the many childish photographs, Billy, took 2 or 3 photographs of his older sister Susie, age 11, capturing her as she ran around the house in her underwear without a shirt, which exposed her breasts, showing the beginning of adolescent development. Susie due to her mental development has the maturity of a 5 year old. The photos were flagged by the CVS film developer and Chesterfield County police were notified. The police confiscated the photographs and contacted the parents. A detective and a uniformed police officer met with Susie to inquire of her who took the photographs. Susie ultimately informed the officers that she was confused as a result of their questions. The detective suggested to Billy’s father that the child was “exploring his sexuality” which upset the family, imputing to Billy, instead of innocent child play, a maturity and motives that Billy has been shielded from by his protective parents. A second detective wants to interview Billy. The family believes that the photographs are not lewd and that further contact with the police will over emphasis Billy’s childish actions and invade the parents’ constitutional right to raise and discipline their children as they deem best. The police have informed the parents that they will keep and may eventually destroy the photographs. The family believes that they are the ones who should decide what to do with the photographs. Again, as a matter of principal, cherishing the freedoms that so many have sacrificed to secure, the parents are not willing to simply give away the freedom and responsibilities guaranteed to them by the Constitution and bestowed upon them by their Creator.
Summary – Non-Incident
The photographs do not implicate any Virginia law. The photographs are not a violation of Code § 18.2-374.1. (set out below) In Asa v. Commonwealth, 17 Va. App. 714, 718-719 (Va. Ct. App. 1994), the Virginia Courts made clear that nudity alone is not enough to make material legally obscene. The court emphasized that it is the “lewd” exhibition of nudity that is prohibited by § 18.2-374.1. “Lewd” is a synonym of “lascivious” and “indecent”. “Lascivious” is “state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite.”
The photographs taken by little Billy are not in violation of the law.
The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” The U.S. Supreme Court has long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.”
The liberty interest at issue here — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by the United States Supreme Court and Virginia Courts., 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (discussing “the fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right . . . to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children, including medical treatment decisions.
Virginia Law Explaining § 18.2-374.1
Code of Virginia § 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 and Article 4 (§ 18.2-362 et seq.) of this chapter, the term “sexually explicit visual material” means a picture, photograph, drawing, sculpture, motion picture film, digital image or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent.
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 induce or force such person to perform in or be a subject of sexually explicit visual material; or
2. Produces or makes or attempts 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 by any means, including but not limited to computer-generated reproduction, which utilizes or has as a subject a person less than eighteen years of age; or
4. Sells, gives away, distributes, electronically transmits, displays with lascivious intent, purchases, or possesses with intent to sell, give away, distribute, transmit or display with lascivious intent sexually explicit visual material which utilizes or has as a subject a person less than eighteen years of age.
C. A person shall be guilty of a Class 4 felony who knowingly finances or attempts or prepares to finance sexually explicit visual material which utilizes or has as a subject a person less than eighteen years of age.
D. For the purposes of this section a person who is depicted as or presents the appearance of being less than eighteen years of age in sexually explicit visual material is prima facie presumed to be less than eighteen years of age.
E. The provisions of this section shall be severable and, if any of its provisions shall be held unconstitutional by a court of competent jurisdiction, then the decision of such court shall not affect or impair any of the remaining provisions.
Va. Code Ann. § 18.2-374.1 (emphasis added)
As referenced above, the court in Asa v. Commonwealth, 17 Va. App. 714, 718-719 (Va. Ct. App. 1994), stated in pertinent part as follows:
Sexually explicit visual material is statutorily defined to include “a . . . photograph . . . which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in [Code] § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse.” Code § 18.2-374.1(A). Nudity is statutorily defined as “a state of undress so as to expose the human . . . female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple.” Code § 18.2-390(2).
It is well established that “nudity alone is not enough to make material legally obscene.” Jenkins v.Georgia , 418 U.S. 153, 161, 41 L. Ed. 2d 642, 94 S. Ct. 2750 (1974). Several of the photographs that Asa produced depict the teenager standing nude with her feet together and her hands at her side. In those photographs, the teenager’s breasts, buttocks, and genitals are pictured but are not the central focus of the photographs. Those photographs do not meet the statutory requirement of “sexually explicit visual material.” See Frantz v. Commonwealth, 9 Va. App. 348, 354, 388 S.E.2d 273, 276 (1990).
Nude photographs are sexually explicit if they are “lewd.” Code § 18.2-374.1. “‘Lewd’ is a synonym of ‘lascivious’ and ‘indecent.'” Dickerson v. City of Richmond , 2 Va. App. 473, 479, 346 S.E.2d 333, 336 (1986). This Court has also “defined ‘lascivious’ to mean ‘a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite.'” Id. (citations omitted).
Asa’s photographs of the teenager in this case include photographs depicting her posing in a sexually provocative manner, with the camera’s eye focused on her genitalia. Included in the seized photographs are close-up photographs depicting the teenager’s genitalia as the primary object depicted in the photograph. “‘Patently offensive representations or descriptions of . . . lewd exhibition of the genitals’ are among the ‘plain examples of what a state statute could define for regulation.'” Freeman v. Commonwealth, 223 Va. 301, 311, 288 S.E.2d 461, 466 (1982) (quoting Miller v. California , 413 U.S. 15, 25, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973)). These photographs, which contain as their primary focus the close-up views of the teenager’s genitalia, depict the teenager sitting with her knees up to her breast and her legs widely spread to expose a frontal view of her genitalia. Those photographs are sexually explicit within the meaning of Code § 18.2-374.1.
Asa v. Commonwealth, 17 Va. App. 714, 718-719 (Va. Ct. App. 1994)(emphasis added)
Even states that might be critical of the law in Virginia , would not disagree with the conclusion that the photos taken by J.R. of his sister are not a violation of law.
In Purcell v. Commonwealth, 149 S.W.3d 382, 391-392 (Ky. 2004), the court in Kentucky stated “We find more persuasive the holdings of other jurisdictions that consider other factors, including the photographer’s intent and the intended reaction of the expected viewer, in determining whether a particular performance was a “lewd exhibition.” See United States v. Knox, 32 F.3d 733, 747 (3d Cir. 1994) (lasciviousness n13 is determined from the viewpoint of the intended audience); United States v. Villard, 885 F.2d 117, 125 (3d Cir. 1989) (look at intended, not actual, effect on the viewer; however, innocent photograph of nude child does not become lewd because subsequently placed in the hands of a voyeur); United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987) (“Lasciviousness is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or likeminded pedophiles . . . that is, so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur.”); United States v. Mr. A., 756 F. Supp. 326, 329 (E.D. Mich. 1991) (because it is child abuse for a photographer to sexually pose a child for purposes of the photographer’s sexual gratification, “the apparent motive of the photographer and intended response of the viewer are relevant.”);Alexander v. State, 906 S.W.2d 107, 110 (Tex. App. 1995) (“whether the content of a photograph constitutes a lewd or lascivious exhibition of a child’s genitals depends on the intent of the photographer”). We conclude that the best approach is to consider all factors, i.e., the nature of the depiction, the intent and demeanor of the child, and the photographer’s intent with respect to the effect of the depiction on its intended audience.
In conclusion, the photos should be returned immediately to the parents and your investigation should be concluded and all references to the investigation expunged.
As the United States Supreme Court’s decisions have made clear, “‘nudity alone’ does not place otherwise protected material outside the mantle of the First Amendment.” Schad v. Mount Ephraim, 452 U.S. 61, 66 (1981) (quoting Jenkins v. Georgia, 418 U.S. 153, 161 (1974)); see alsoFW/PBS, Inc. v. Dallas, 493 U.S. 215, 224 (1990) (plurality opinion); id., at 238, n. 1 (BRENNAN, J., concurring in judgment); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-933 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-558 (1975); California v. LaRue, 409 U.S. 109, 118 (1972), Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975).
Nudity, without more is protected expression. New York v. Ferber, 458 U.S. 747, 766 ( U.S. 1982). A well-known commercial advertisement for a suntan lotion shows a dog pulling down the bottom half of a young girl’s bikini, revealing a stark contrast between her suntanned back and pale buttocks. That this advertisement might be illegal in Ohio is an absurd, yet altogether too conceivable, conclusion under the language of the statute. “Many of the world’s great artists — Degas, Renoir, Donatello, to name a few — have worked from models under 18 years of age, and many acclaimed photographs and films have included nude or partially clad minors.” Massachusetts v. Oakes, 491 U.S. 576, 593 (1989) (BRENNAN, J., dissenting) (footnote omitted). In addition, there is an “abundance of baby and child photographs taken every day without full frontal covering, not to mention the work of artists and filmmakers and nudist family snapshots.” Id. , at 598 (BRENNAN, J., dissenting). In New York v. Ferber, 458 U.S. 747, 765 ( U.S. 1982), the court stated “As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Smith v. California , 361 U.S. 147 (1959); Hamling v. United States , 418 U.S. 87 (1974).”
In 1984, respondent Douglas Oakes took approximately 10 color photographs of his partially nude and physically mature 14-year-old stepdaughter, L. S., who at the time was attending modeling school. Tr. 22-30. The photographs depict L. S. sitting, lying, and reclining on top of a bar, clad only in a red and white striped bikini panty and a red scarf. The scarf does not cover L. S.’s breasts, which are fully exposed in all the photographs. But other nonobscene representations of minors, including some that are pornographic, are shielded by the Constitution’s guarantee of free speech. New York v. Ferber, 458 U.S. 747 (1982), at 764-765. In particular, “nudity, without more is protected expression.” Id. , at 765, n. 18, citing Erznoznik v. City of Jacksonville , 422 U.S. 205, 213 (1975).
Massachusetts v. Oakes, 491 U.S. 576, 591 ( U.S. 1989)
The Commonwealth lacks an overriding interest, however, in prohibiting adults from allowing minors to appear naked in photographs, films, and pictures with their genitals or, in the case of adolescent girls, their breasts less than opaquely covered under all circumstances except the production of such works “for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library.” § 29A. One situation where the Commonwealth’s interest falls glaringly short was cited by the Massachusetts Supreme Judicial Court: parents might want to photograph their infant children or toddlers in the bath or romping naked on the beach, yet § 29A threatens them with a prison term of between 10 and 20 years or a minimum fine of $ 10,000 for doing so. And § 29A imposes those penalties even though parents have the same First Amendment interest in taking those photographs as they do in keeping a diary or boasting of their children’s antics, and even though their children would not thereby be harmed. Amicus American Sunbathing Association, a nudist organization with 30,000 members in the United States and Canada, further notes that family photographs taken by its members would subject them to possible prosecution, notwithstanding the protected character of their activity and their denial of any intrinsic connection between public nudity and shame. Massachusetts likewise lacks a compelling interest in forbidding nonexploitative films or photographs of topless adolescents — for instance, the poolside shots that are the norm rather than the exception along the Mediterranean seaboard, and that occur with some frequency on this side of the Atlantic as well — or in barring acting or professional modeling by teenagers that does not involve sexually explicit conduct. Massachusetts v. Oakes, 491 U.S. 576, 592-593 ( U.S. 1989) JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE STEVENS(dissenting)
Osborne v. Ohio , 495 U.S. 103, 132 ( U.S. 1990)
“[N]udity alone is not enough to make material legally obscene.” Jenkins v. Georgia , 418 U.S. 153, 161 (1974). But the word “nudity” in subsection A does not exist in a statutory vacuum. The depiction of nudity is proscribed only if it is “obscene for children”. Moreover, Code § 18.2-390(2) defines nudity, in part, as “a state of undress so as to expose the human male or female genitals”. “Patently offensive representations or descriptions of . . . lewd exhibition of the genitals” are among the “plain examples of what a state statute could define for regulation”. Miller v. California , 413 U.S. 15, 25 (1973). Such materials are not constitutionally protected if they “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” Id. at 27. As we construe our statutes, material depicting the lewd exhibition of a juvenile’s genitals is “hard core” obscenity for children.
Freeman v. Commonwealth, 223 Va. 301, 311 ( Va. 1982)
Washington v. Glucksberg, 521 U.S. 702, 719, 138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997)
521 U.S. at 720; see also Reno v. Flores, 507 U.S. 292, 301-302, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993); Troxel v. Granville, 530 U.S. 57, 65 ( U.S. , 2000)
More than 75 years ago, the Court in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, the Court in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925), again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” The Court explained in Pierce that “the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” 268 U.S. at 535. The Court returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children, stating “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” 321U.S. at 166. In subsequent cases also, the Court has recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘comes to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'” (citation omitted)); Wisconsin v. Yoder
Troxel v. Granville, 530 U.S. 57, 65-67 ( U.S. , 2000)
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