Many family photo and video collections have pictures of young nude children. But when children are no longer babies and have begun to develop sexually, is photography of them by parents and stepparents sexual abuse? This question has been before a number of U.S. courts, with results similar to the following case.
The defendant took color photos of his physically mature 14-year-old stepdaughter, showing her fully exposed breasts. He was convicted in a jury trial and sentenced to 10 years in prison. The Massachusetts Supreme Judicial Court reversed the conviction, holding the statute to be overbroad. The U.S. Supreme Court vacated the Massachusetts Supreme Court ruling and remanded the case for further hearings. On remand, the Massachusetts Supreme Judicial Court upheld the defendants conviction, holding that although his photographs were not obscene, the state had a legitimate interest in protecting minors from such practices and that interest was more compelling than the defendants restrictive speech interest under the First Amendment.*
Convictions of other defendants in similar situations have been affirmed. In Perry v. State, 568 So. 2d 339 (Ala. Cr. App. 1990), the defendant photographed not only his 15-year-old daughter but also her 14-year-old friend. In Brackins v. State, 578 A.2d 300 (Md. App. 1990), the court affirmed defendants conviction for child sexual abuse based on the semi-nude photographing of a 12-year-old stepdaughter.*
Nude home photos can also result in prosecution under the federal child pornography statutes, including the PROTECT Act. In a 2010 case the Sixth Circuit Court of Appeals upheld the conviction under 18 U.S.C. §§ 2251 and 2252 of a defendant charged with possession of child pornography based on home pictures. The defendant took nude photographs of his 10-year-old daughter and her friends. He did not distribute the photographs or show them to other people. Because the pictures showed actual children in sexually suggestive positions, the court said the pictures were child pornography and violated the statutes. The court also held that Congress had power to regulate the activity under the Commerce Clause because of the possibility that homemade child pornography would hinder the purpose Congress has in regulating national child pornography.*
In the July 2010 issue of the FBI Law Enforcement Bulletin, an article entitled Sexting: Risky Actions and Overreactions discusses the problems related to juveniles sexting naked or near-naked pictures of themselves to others. Sexting is defined as sending or posting sexually suggestive messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet. The article suggests that juveniles consider the consequences of sexting, and offers this advice:
Before hitting send, remember that you cannot control where this image may travel;
If you forward a sexual picture of someone underage, you are responsible for this image as the original sender.
Think about the consequences of taking, sending, or forwarding a sexual image of yourself or someone else under age.
You Be the Judge
With modern technology like smart phones, taking photographs can be both easy and secretive. Upskirting, in which a person surreptitiously takes photographs of the female anatomy visible under skirts being worn by the females, has regrettably become a practice using cell phones as cameras. Two cases have come before you, where defendants are charged with violation of statutes making it a crime to secretly photograph a person who is nude or partially nude, or to secretly photograph the uncovered genital area of a person.
In one case, the defendant was seated on a public trolley, and bending over, used his cell phone to upskirt women standing in the trolley. In the other case, the defendant attached a cell phone to his shoe, and walking through a mall, stood behind females wearing dresses and used his cell phone to photograph their anatomy under their skirts.
Both defendants have moved to dismiss the charges filed against them. The first defendant contends he took the photographs in a public place. The second defendant contends none of the photographs he took showed uncovered genitalia.
Should you dismiss the charges? Assume in the first case the statute is identical to the one at issue in Commonwealth v. Robertson, 5 N.E.3d 522 (Mass. 2014). Assume in the second case the statute is identical to the one at issue in Delagrange v. State, 5 N.E.3d 354 (Ind. 2014). What is your decision?
