Is This Child Pornography?

Internet article

By: James R. Kincaid

Date: January 31, 2000

Source: Kincaid, James R. "Is This Child Pornography?" Salon, January 31, 2000. 〈http://www.salon.com/mwt/feature/2000/01/31/kincaid/index.html〉 (accessed March 7, 2006).

About the Author: James R. Kincaid is the Aerol Arnold Professor of English at the University of Southern California and has written extensively on the subject of sexuality in literature and in modern society.

INTRODUCTION

From Vladimir Nabakov's 1955 novel Lolita to Internet websites devoted to international child pornography trafficking, the topic of child pornography in the United States is a complex legal and social issue that carries taboo, disgust, and tense questions about the line between normal childhood sexuality and pornographic exploitation of children.

The reference guide to published articles, The Reader's Guide to Periodical Literature, began including the categories of "child pornography" and "child sexual abuse" in 1974. In the late 1970s and early 1980s, the issue of child pornography reached the public in the United States through a series of media exposés, in which pamphlets and materials depicting naked children in the Netherlands were investigated by the United States Senate. The Kildee-Murphy proposal, passed in 1977, made child pornography illegal in the United States. Until then, pornography depicting children engaged in sexual acts with other children or with adults was openly sold and traded. Most publishers of child pornography stopped voluntarily, but a small underground publishing enterprise continued.

Most American and European countries have enacted laws that make child pornography illegal. The age of consent often determines whether pornography is "child pornography" or legal pornography. In the United States, the age of consent is considered to be eighteen, and any depiction of a person under eighteen in pornographic photos or films is classified as child pornography and is, therefore, illegal. However, some states within the United States have set the age of consent at sixteen or seventeen; in these situations, would pornographic pictures of a sixteen- or seventeen-year-old legally be deemed child pornography?

This question—What constitutes child pornography?—created a series of laws and procedures that addressed particular situations as they came before the courts and the public, but which still, to this day, leave much to be interpreted. Is a picture of a child, alone and nude, pornography? Is a clothed child positioned in a sexually suggestive way in a movie being exploited, and, therefore, is the film child pornography?

Children, historically, have been held up as innocent, asexual creatures. Parents in the United States often snap photos of children in the bathtub, playing outdoors, or swimming, with the children in various states of undress. In Europe, where public nudity standards are more open than in the United States, naked toddlers and young children are a more common site on beaches and at lakes during vacation times. At what point do those family snapshots cross a legal line?

PRIMARY SOURCE

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SIGNIFICANCE

In the 1994 United States Supreme Court case United States of America v. Stephen A. Knox, the "principal question presented by this appeal is whether videotapes that focus on the genitalia and pubic area of minor females constitute a 'lascivious exhibition of the genitals or pubic area' under the federal child pornography laws even though these body parts are covered by clothing."

The case garnered significant attention from child advocacy groups, such as The Center for Missing and Exploited Children and brought to the forefront of public attention the definition of child pornography. In that case the Supreme Court found for the plaintiff, declaring that "a 'lascivious exhibition of the genitals or pubic area' … encompasses visual depictions of a child's genitals or pubic area even when these areas are covered by an article of clothing and are not discernible."

As laws tightened in the U.S. concerning child pornography, photo labs faced a new challenge. Employees who worked in drugstores, retail establishments, and grocery stores faced the responsibility to report illegal photographs. Was a mother breastfeeding her three-year-old a pornographic scene? What about an eight-year-old in a bathtub? With no clear-cut, objective guidelines for understanding what child pornography is, and what it is not, many parents and individuals who took pictures of children in various states of undress and had the film developed in a retail store found themselves in violation of a law that neither they—nor their accuser—fully understood.

Federal law in the United States defines child pornography as the visual depiction of a minor engaged in sexual acts, or in "lewd" or "lascivious" behavior or presentation. Simple nudity of a child in photographs or on film does not automatically constitute child pornography, though individual state statutes vary on the nudity issue. Because state law overlaps with federal law, the definition of child pornography—especially in photo lab cases where an employee must make a decision, on the spot, concerning a photograph's legality—creates serious questions about children's sexuality in modern American culture.

As Kincaid notes in this article, whether a photograph is child pornography depends largely on the point of view of the person examining the photo and deciding on the reason for the photo: "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." Because state and federal law are murky and contradictory at times, and because each individual brings a different set of cultural and sexual assumptions to the viewing of the photograph, the question "What constitutes child pornography?" remains difficult to answer.

FURTHER RESOURCES

Books

Sandfort, Theo G. M., and Jany Rademakers, editors. Childhood Sexuality: Normal Sexual Behavior and Development. Binghamton, N.Y.: Haworth Books, 2000.

Periodicals

Jackson, Judy, and Debbie Nathan. "The Hunting of Dr. Craft." The Nation (January 10, 2005).

Web sites

Findlaw.com "United States of America v. Stephen A. Knox." 〈http://laws.lp.findlaw.com/3rd/940734p.html〉 (accessed March 7, 2006).

Innocent Images National Initiative. 〈http://www.fbi.gov/innocent.htm〉 (accessed March 7, 2006).

Korosec, Thomas. "1-Hour Arrest." Dallas Observer, April 17, 2003. 〈http://www.dallasobserver.com/issues/2003-04-17/feature2.html〉 (accessed March 7, 2006).