What defines illegal child pornography? In many jurisdictions this is utterly unclear, because mere nakedness may in theory be permissible, but too close a focus on the genitals may constitute an illegal “lascivious display” or an “indecent” image. An allegedly suggestive pose can tip the balance from legal to illegal, even if the child is fully clothed.
The recent high profile arrest of pediatrician, Dr. Richard Keller, who practised at Boston Children’s Hospital and taught at the Harvard Medical School, has foregrounded the conundrum. He and a string of others have been arrested in the past few months on suspicion of child porn possession, reportedly based in each case on naturist material from an eastern European source, Azov Films.
The background to these cases, including detailed descriptions of the police operation, the material at issue and the American law involved (notably the much used “Dost test”, developed in California), have been very well presented here. Those who check out this documentation can form their own judgment as to whether the Azov material was merely “naturist” or something more.
One thing is sure though: law enforcers have a dangerous habit of pushing their remit to the limit and beyond if they can get away with it. And they nearly always can. Lawyers tend to advise clients that juries will be inclined to give the benefit of the doubt to the prosecution in such cases. Fighting a case, they are told, will just get them a bigger sentence. Most defendants, lacking the money to pay for a top-flight lawyer, just plead guilty. Often, it will be a wise choice.
One notable exception to the common fate is the case of Michael Jackson. He was never charged with possessing child porn as the prosecution had bigger fish to fry. In the end, famously, those fish were never even netted. Jackson was found not guilty on the child molestation counts he faced. So prosecutor Tom Sneddon may have ended up regretting that porn possession was never laid as a criminal charge; Jackson’s two books featuring extensive child nudity were presented merely as embarrassing background to the main case. They were intended as circumstantial evidence that the superstar was a paedophile.
As it happens, I personally saw every photo in both of Jackson’s books back in the days (before 1988) when possession became illegal in the UK. On that basis, I can offer from distant memory my view that one of the books, titled The Boy, might well be accepted by juries as legal naturist photography. The second, though, called Boys Will Be Boys, featured a higher percentage of nudity than the first, with more emphasis on the genitals and some questionable poses. A Californian jury today might well decide that many of the images amounted to “sexual conduct” under Section 311.3.(b) of the state’s penal code. This states that sexual conduct includes “exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer”.
The photos in Jackson’s books were not necessarily posed by the boys, nor taken, nor published, “for the purpose of sexual stimulation of the viewer”, but they arguably could have been. So it should not be beyond the wit of an imaginative prosecutor to detect such transgressions in any photo where there was a “prominent display” of a child’s naked genitals.
All in all, we might ask ourselves whether the District Attorney in the Jackson trial would have been deterred from bringing a possession case if the possessor had been an ordinary Joe – someone lacking the means to mount a vigorous defence.
While I am at it, I might as well put in a plug for my book, Michael Jackson’s Dangerous Liaisons, in which I discuss the contents of The Boy, and Boys Will Be Boys somewhat further. Here also you will find the ONLY full trial report on Michael’s case in the entire world – and probably beyond it!