Nanny Cams/child pornography

[pkbites]

I'm looking for some legal precedent on this. Specifically Wisconsin.


A PI friend of mine told me about a precarious situation he and one of his clients found themselves in.

They were concerned the baby sitter (teenager) may be being mean to their child so they had him set up some "nanny cams" in common areas of the house. To their horror things were far worse than they thought and it turned out the kid was being sexually abused.

The sitter, of course, has been fired, but the client wants prosecution. But they are concerned with the video as technically it's child pornography. My friend has been dealing with his lawyer so he has been getting actual legal advice. They intend on going to the Sheriff before the end of today.

This story sounds like an urban legend, but I assure you it isn't. I would think this isn't the first time something like this has happened. Any cites are greatly appreciated.

[chacoguy]

For it to be considered porn, it needs be shown that the intent of the filming was for sexual stimulation. IANAL

[Johnny L.A.]

Originally Posted by chacoguy

For it to be considered porn, it needs be shown that the intent of the filming was for sexual stimulation. IANAL

That's what I was going to say.

[Musicat]

Originally Posted by chacoguy

For it to be considered porn, it needs be shown that the intent of the filming was for sexual stimulation. IANAL

Cite?

[Johnny L.A.]

Originally Posted by Musicat

Cite?

IANAL, and don't necessarily know where to look; but I did find this [emphasis mine]:

The representation in books, magazines, photographs, films, and other media of scenes of sexual behavior that are erotic or lewd and are designed to arouse sexual interest.

Pornography is the depiction of sexual behavior that is intended to arouse sexual excitement in its audience.

<snip>

In 1957, the U.S. Supreme Court, in ROTH V UNITED STATES, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, stated that obscenity is "utterly without redeeming social importance" and therefore is not protected by the First Amendment. The Roth test for obscenity is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient [lewd or lustful] interest."

[Derleth]

Being accused of creating child pornography, on the other hand, knows no such restrictions:

You go on vacation to San Diego and take more than 100 photos of your three daughters, ages 5, 4 and 18 months. You also take seven or eight shots of your girls playing together at bathtime. Then you return home to Peoria, Ariz., bring your memory stick into Walmart for processing, and lose custody of your children because an employee finds the photos, decides they are pornographic, and alerts the police.

That is what Lisa and Anthony Demaree say happened to them last year. Accused of sexual abuse, they were not allow to see their girls for several days, and did not regain custody for a month while the state conducted an investigation, their lawyer told Arizona Republic reporter Dustin Gardiner.

I'm sure there have been other cases like this, but I can't find them easily at the moment. No charges were brought but, in some respects, the damage had already been done.

[Colibri]

Since this concerns a specific legal situation, it's best suited to IMHO.

Colibri
General Questions Moderator

[TriPolar]

I don't see how the couple in the OP are any different than the photo lab who notifies the authorities.

[Flyer]

Originally Posted by TriPolar

I don't see how the couple in the OP are any different than the photo lab who notifies the authorities.

I don't know about you, but I would NOT want to assume that the relevant DA is that sensible. There's an awful lot of unpleasantness in store for anybody who guesses wrongly.

[TriPolar]

Originally Posted by Flyer

I don't know about you, but I would NOT want to assume that the relevant DA is that sensible. There's an awful lot of unpleasantness in store for anybody who guesses wrongly.

Then they can engage an attorney. But the answer is not to hide evidence of a crime of this nature.

[pkbites]

Originally Posted by TriPolar

I don't see how the couple in the OP are any different than the photo lab who notifies the authorities.

Because the photo lab didn't intentionally set up the camera.

Update: I've heard nothing from my friend yet, so I don't have any new info.

[TriPolar]

Originally Posted by pkbites

Because the photo lab didn't intentionally set up the camera.

Update: I've heard nothing from my friend yet, so I don't have any new info.

The camera wasn't set up for the purpose of capturing pornographic images. No more so than the lab set up their processing equipment for that purpose.

[alphaboi867]

Originally Posted by pkbites

Because the photo lab didn't intentionally set up the camera.

Update: I've heard nothing from my friend yet, so I don't have any new info.

Say a gas station owner set's up cameras in the back room because she think's her employees are stealing stock. Then one night the clerk rapes 13 yr old girl in said backroom. Could the owner be arrested for making child pornography? Just like in the OP's example it's somebody setting up a camera to detect employee miscoduct, not thinking it would capture criminal sexual misconduct. If the owner (or the couple) don't go to the police could they be charged with a crime for not reporting a crime?

[Wesley Clark]

Any law enforcement or judicial official who isn't a by the book moron is going to realize that isn't CP. the problem is can you trust the police or prosecutors to have common sense to understand making evidence of abuse is not the same as creating a trophy of abuse? I don't know. I would hope the majority do, but have no idea what minority % do not.

Never underestimate overaggressive morons.

[Manda JO]

Originally Posted by Wesley Clark

Any law enforcement or judicial official who isn't a by the book moron is going to realize that isn't CP. the problem is can you trust the police or prosecutors to have common sense to understand making evidence of abuse is not the same as creating a trophy of abuse? I don't know. I would hope the majority do, but have no idea what minority % do not.

Never underestimate overaggressive morons.

Does that mean you let a child molester go unreported?

If my child were molested by the babysitter, and I found out that not only had my neighbors known about his tendencies, but had photographic evidence of his crimes and had withheld that information for fear that an overzealous legal system might possibly cause problems for them . . . I can't imagine my reaction.

[Wesley Clark]

Originally Posted by Manda JO

Does that mean you let a child molester go unreported?

If my child were molested by the babysitter, and I found out that not only had my neighbors known about his tendencies, but had photographic evidence of his crimes and had withheld that information for fear that an overzealous legal system might possibly cause problems for them . . . I can't imagine my reaction.

Based on your name I'm assuming you are a woman. As a woman you really don't understand what it is like for men living in a society where everyone wants to throw the term 'sex offender' around as loosely as possible. Men generally don't understand the feelings and fears women have about rape, but women probably don't understand how men feel about being falsely labeled a sex offender. Women really don't have to worry about that happening to them.

[Kimmy_Gibbler]

Originally Posted by pkbites

Update: I've heard nothing from my friend yet, so I don't have any new info.

Your "update" is that you have no new, updated information?!?

[Oakminster]

Your friend has a lawyer, presumably licensed in the appropriate jurisdiction and knowledgeable in this area of law. What exactly is it you want from us?

[emeraldia]

This does sound like an urban legend. Whatever it is, it seems very silly to me. It's obviously not child pornography and no D.A. in the world would ever file charges against your friend for it. I don't care about the photo processing cases. What do you think an attorney is going to recommend to your friend? "Oh.. well... you're going to have to destroy that evidence. Yeah, it's illegal. In fact, if it weren't for attorney client privilege I would be obligated to turn you in." Come on. Call the police, it's going to be OK.

[emeraldia]

Originally Posted by Wesley Clark

Based on your name I'm assuming you are a woman. As a woman you really don't understand what it is like for men living in a society where everyone wants to throw the term 'sex offender' around as loosely as possible. Men generally don't understand the feelings and fears women have about rape, but women probably don't understand how men feel about being falsely labeled a sex offender. Women really don't have to worry about that happening to them.

I agree with your sentiment, but it would be absurd to think a D.A. would file charges in this case. (assuming the OP's friend is telling the truth (and/or the OP is telling the truth.))

[DataX]

Of course it's child porn if it actually shows stuff. And of course he isn't going to be charged. Unless the DA/ASA is a moron - which his lawyer should know.

Teenagers have been charged with possession of child porn for having nude pictures of THEMSELVES. This is when they want to get the kids for something. The state (generally) doesn't go around charging victims of crimes with crimes just cause they technically could. The priority here is getting the child molester.

[Blackberry]

DAs are elected in Wisconsin. Imagine how this story would play out in the media or anywhere at all ever.

[drewtwo99]

Never underestimate what an over-zealous District Attorney is capable of. One DA pretty much single-handedly completely and utterly destroyed a relationship between my half-brother and his dad (my father too). A really sad, personal story that I really don't feel comfortable airing out here in public but yeah, DAs can really fuck over innocent people.

[minlokwat]

Originally Posted by pkbites

A PI friend of mine told me about a precarious situation he and one of his clients found themselves in.

Don't mean to hijack but what the hell is a "PI friend"?

"politically incorrect", "physically impaired", "Pacific Islander"?

[TriPolar]

Originally Posted by minlokwat

Don't mean to hijack but what the hell is a "PI friend"?

"politically incorrect", "physically impaired", "Pacific Islander"?

Private Investigator.

[minlokwat]

Originally Posted by TriPolar

Private Investigator.

Oh, right. Duh. I think I should have figured that one out myself.

Carry on.

[Loach]

Can't find the cite right now but turning such materials over to the police or DA in a timely manner (without keeping copies of course) releases you of any criminal liability. At least in my state.

*The state does not like making it easy to find cites about the law here in NJ. It's partivlcularly hard to do so on my phone.

[pkbites]

Originally Posted by Oakminster

Your friend has a lawyer, presumably licensed in the appropriate jurisdiction and knowledgeable in this area of law. What exactly is it you want from us?

I was just looking to see if there were any precedents on cases like this. Thanks to those that offered or attempted to offer actual cites instead of opinions and speculations.

He doesn't want to talk to much about whats going on for obvious reasons, but they have an appointment tomorrow to speak with someone in the DA's office.

I picked up the phone yesterday morning to "first camera install I've had in 3 years and guess what happens....!" Back in the 80's and 90's he and I used to install cameras all the time (mostly for businesses trying to detect theft and drug use) to supplement our income as police officers. That was before cameras got so small and cheap and folks could do them themselves. I made a ton of money renting out my equipment and time lapse VCR's. Then the technology jumped and the market dropped. Very few PI's I know do many camera installs.

Anyway, with the nanny cam thing I would have thought there would have been more instances of something like this happening and was looking for some actual case law.

[RaftPeople]

Originally Posted by Oakminster

Your friend has a lawyer, presumably licensed in the appropriate jurisdiction and knowledgeable in this area of law. What exactly is it you want from us?

At the top of this thread there is a thing we at the SDMB call an "OP".

Inside that OP there are details about the thread. This particular thread starts out with this line:
"I'm looking for some legal precedent on this. Specifically Wisconsin. "


So, I'm going to go out on a limb here and take a wild guess: the poster is looking for legal precedents on this, in Wisconsin.


Sometimes it's very tricky to figure these threads out, but I think I got this one right.

[digs]

Originally Posted by Blackberry

DAs are elected in Wisconsin. Imagine how this story would play out in the media or anywhere at all ever.

And don't forget that the one for your state is an ambitious partisan hack of dubious intelligence. "Caveat Pkbites", as they say in Latinvia.

[dstarfire]

Here's the exact text of wisconsin law on the issue (emphasis mine):

Whoever does any of the following with knowledge of the character and content of the sexually explicit conduct involving the child may be penalized under sub. (2p):
(a) Employs, uses, persuades, induces, entices, or coerces any child to engage in sexually explicit conduct for the purpose of recording or displaying in any way the conduct.
(b) Records or displays in any way a child engaged in sexually explicit conduct.

The situation you describe fails the "with knowledge ..." requirement.

[Manda JO]

Originally Posted by Wesley Clark

Based on your name I'm assuming you are a woman. As a woman you really don't understand what it is like for men living in a society where everyone wants to throw the term 'sex offender' around as loosely as possible. Men generally don't understand the feelings and fears women have about rape, but women probably don't understand how men feel about being falsely labeled a sex offender. Women really don't have to worry about that happening to them.

Right, but it doesn't matter if I understand. I mean, if a bus is barreling down on a kid, there's a chance that my attempt to snatch him out of the way will lead to my maiming or death. But I still have a moral responsibility to risk it because there is a near certainty that he will die otherwise.

In the same way, if you have proof that the neighborhood babysitter is child molester, and it is nearly certain that he will molest other children, you have a moral responsibility to step forward, even if it means taking a very small risk that you will be unjustly accused and an even smaller risk that you will be unjustly convicted. That sucks. But I don't see "But I didn't want anyone to blame ME and there are a few cases in the news where something sorta not really like that happened" as a reason to let a child molester go.

It doesn't matter how horrible the worst case scenario would be, or if I can imagine it. It's still a slight risk vs a huge known damage to uncountable children.

[Blackberry]

Originally Posted by digs

And don't forget that the one for your state is an ambitious partisan hack of dubious intelligence. "Caveat Pkbites", as they say in Latinvia.

It would take far more than dubious intelligence to prosecute someone for this. You'd have to be like aggressively out of your fucking mind.

[Lord Mondegreen]

Originally Posted by Wesley Clark

Well I'm a man, and I agree with Manda JO.

Does anyone really think that "being fired" is adequate punishment for child sexual abuse? Since I don't know how the system works, I (as the parent) would go straight to a lawyer to see how I could compel the PI to hand over the recording so I could go about starting the process to get the bastard babysitter in prison.

[Hershele Ostropoler]

I don't see law enforcement deciding on their own that this is child porn, but I can see that being the nanny's defense. But IANAL.

[Bam Boo Gut]

Originally Posted by Lord Mondegreen

Well I'm a man, and I agree with Manda JO.

Does anyone really think that "being fired" is adequate punishment for child sexual abuse? Since I don't know how the system works, I (as the parent) would go straight to a lawyer to see how I could compel the PI to hand over the recording so I could go about starting the process to get the bastard babysitter in prison.

Indeed.

[Projammer]

Originally Posted by Blackberry

It would take far more than dubious intelligence to prosecute someone for this. You'd have to be like aggressively out of your fucking mind.

I don't think anyone here would have to look very hard to find glaring examples of someone being willfully and agressively out of their fucking minds in any context.

That said, and IANAL and all that. The camera wasn't set up with the intent of recording CP. Nor was it set up where CP would have been a forseeable outcome. Everything should be fine with turning the recording over to the DA in a timely manner.

The flip side. Concealing or erasing the recording is guaranteed to bring down grief upon him. Destroying/tampering with evidence. Accessory after the fact. Impeding/interfering with an investigation. The list goes on.

[pkbites]

Originally Posted by Lord Mondegreen

Since I don't know how the system works, I (as the parent) would go straight to a lawyer to see how I could compel the PI to hand over the recording so I could go about starting the process to get the bastard babysitter in prison.

WTF are you talking about? My friend is working with the parents on this.

And as a licensed PI he is required to report a felony, which he has done. He, his clients, and a sheriffs investigator are having a meeting with an ADA tomorrow about all this.

[muldoonthief]

Originally Posted by pkbites

Anyway, with the nanny cam thing I would have thought there would have been more instances of something like this happening and was looking for some actual case law.

Wouldn't the absence of case law just mean that so far, no DA has been insane enough to try to prosecute the parent/nanny cam operator who came to them with evidence?

[Disheavel]

Steven Powell (and many other stories if you wish to google), who is one of the most unlikeable humans you'll ever hear of, was convicted of voyeurism but not of child pornography even though he had pictures of neighbor kids bathing in his bathtub. The State could not demonstrate that they were taken for a "sexual nature" and as such they didn't have a case. So if there is not intent for sexual intent by the viewer/filmer/audience, there can be no charges (and believe me there was incredible pressure to throw the book at this guy in every way possible).

[I realize that this is just one case that exemplifies what many others upthread have said. But I don't want to quote anyone or tie their username to a search term.]

[Wesley Clark]

Originally Posted by Lord Mondegreen

Well I'm a man, and I agree with Manda JO.

Does anyone really think that "being fired" is adequate punishment for child sexual abuse? Since I don't know how the system works, I (as the parent) would go straight to a lawyer to see how I could compel the PI to hand over the recording so I could go about starting the process to get the bastard babysitter in prison.

I never said don't report it. If the guy has done it once he will probably do it again and sexual abuse thrives on secrecy.

Even if you did get charged, which is unlikely, it is worth it to protect your kids and other kids. If I knew there was a 1% chance I'd be falsely accused of manufacturing child porn for turning over evidence of my children being abused would I still tell the police about what was happening? Yes. But that doesn't change the fact that an overeager prosecutor can ruin an innocent person's life and that they should do everything they can to protect themselves from that.