Facts
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
Constitution
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."[1]
The Clause also includes a substantive component that "provides
heightened protection against government interference with certain fundamental
rights and liberty interests."[2]
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.[3],
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,[4]
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.
5. [Repealed.]
B1. [Repealed.]
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.
Conclusion
In conclusion, the photos should be returned immediately to the
parents and your investigation should be concluded and all references to the
investigation expunged.
Miscellaneous
Notes:
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 also FW/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)