Okay, heres one for the legal eagles. Say someone is an insurance investigator. Now say he’s conducting surveillance on a guy who claims to be hurt due to a job injury and is collecting workers compensation. The investigator follows the guy to a public place, such as a park or the forest. The guy proceeds to make passionate, extremely physical love to a woman at this public place.
(Don’t laugh. It happens!). The investigator video tapes the event, thinking that he’s getting great evidence that the guy is not as injured as he claims. Because this takes place in a public place the investigator was clear to video tape (I already looked it up!). However, later on the investigator finds out that the “woman” was only 17, therefore legally a child. Is the investigator guilty of making, and/or possesing child pornography? Would the tape be allowed in court when the insurance company charges the claimant with fraud? I posed this question to a friend of mine who actually is a private detective and all he did was turn white.
Although “Kiddy Porn” is a “cause celebre” (just listen to media pundits talking about the net – you’d think every third guy was a weirdo), I don’t think judges are going to be nuts about applying it where it doesn’t make sense.
A recent example I heard of was the movie “American Beauty”. Apparently there are some provocative scenes involving a girl who isn’t quite 18. However, it is considered sensible within the framework of the film, and not intended to breed unbridled lust.
In other words, I think intent is important.
Two more examples: parents might have photos of their baby having a bath. Not illegal. Naturalists might have pictures of the family at a “clothing optional” beach. If it doesn’t “fall into the wrong hands”, the intent is clearly innocent.
If your detective friend blanched when you told him your theory, I think he should be looking for a new job, because he clearly doesn’t know the kind of things he should.
Well, since in the Midwest they busted into a few Barnes & Nobles and busted them for the “kiddie porn” in some art books, I would say-- burn the tape, NOW. The minor boost to your job is not worth a conviction, or even an arrest for “child porno”. Seriously, take my advice. Burn it. NOW!!
Hell, if “traci Lords” is “child” porn, I’d hate to see what they think an adult looks like.
No it won’t be considered child porn, but rather evidence. As the girl is 17 she will be considered a “minor” not a “child” and that is an important distinction. Also check the age of consent in your state…in many states it is 17, 16, or even as low as 14. Now if you tried to distribute the tape, you could get into trouble for many legal reasons, but if you use it in court procedings, it will not be considered “porn”
pkbites lives in Wisconsin, one of the few states that still has an age of consent of 18. The youngest age of consent in the US is Hawaii’s 14. Here is a chart outlining the age of consent in various jurisdictions around the world. Spain’s age is listed as 12 but I believe it was raised to 13 recently.
Under the new kiddie porn laws in Canada (and I think in the U.S. as well), all that is required to convict someone is the ‘depiction’ of someone under 18. That means you can photograph two over-18 adults having sex, but if you dress one up to look like a child, it’s kiddie porn.
For that matter, you can be charged with kiddie porn for simply drawing a picture of two children having sex. A man in British Columbia was recently convicted under the kiddie porn statues for making a comic book that had images of children having sex.
There have been arrests of guys who took pictures of children fully clothed & alone. They were posed sexually.
BTW: An american going to another country & having sex with anyone under 18 is guilty of a US crime.
I am neither an authority nor legal beagle, but could make some assumptions based on what I’ve observed in the media.
I would agree with Timothy Campbell who said that intent would most likely play into the legality of (or at least enforcement of laws regarding) this tape…especially in a case of “evidence gathering.” Not only has the PI obtained evidence regarding fraud, but depending on the state in which the event took place, s/he may also have evidence of statutory rape. Destroying the evidence, I would imagine, could be construed as “accessory after the fact” for failing to report such a crime. Also, I would think that, theoretically, the longer this person holds on to the tape without taking action in some manner, the greater the risk of misunderstanding the intent and content. (Just MHO.)
Regarding other comments:
Actually, this was also discussed on the commentary track (DVD version) for “American Pie” regarding one of the male teenage actors who was 17 at the time of filming (in a Mrs. Robinson scenario). The directors/producers opted to go off-screen and allude to action through vocalization, music, etc. rather than skate some like of what could and could not be shown or implied.
Gee, you would think so…however, recently in the State of Ohio a woman was brought up on charges and had to plea bargin to avoid a trial on this very issue. It seems that she had decided to document her daughter’s entire life for her daughter’s personal use and memories. Her daughter is no longer a toddler (I don’t recall the age but think it was somewhere between 5 and 8 yrs old) and the mother had taken bath photos of her. An employee at the store developing the film for the woman decided there was something perverse in this woman’s photos and turned them over to police.
The woman was arrested and charged. As I said, in order to avoid a lengthy and painful trial, the woman agreed to (I believe) a year of counseling and destroying the photos. There was nothing sensual in the photos, nor were they being sold, distributed or used for anything sensual/sexual, merely a complete record of her child’s life. I could probably find actual news documentation regarding this case if anyone was interested in fact-checking.
That’s my two-cents!
Holy crap, my own wife beat me to it!! Here’s a link to some good coverage of the aforementioned story from the Cleveland Free Times:
http://www.freetimes.com/issues/833/features-coverstory.php3
Tim,
You’re right that intent is critical.
Every act, in order to be a crime, must consist of both a prohibited act (actus reus) and a guilty mind (mens rea). The latter is often called the scienter requirement.
The private investigator filming in the park lacked the requisite mens rea, and would not be guilty of the crime of producing child pornography.
Incidentally, even if a law purports to remove any scienter requirement, due process may demand that the courts infer one anyway. Due process is, at its heart, the concept of basic “fair play” and requires that every citizen have a reasonable chance to understand what conduct is prohibited, and act reasonably in avoiding such conduct.
For example, the legislature might set the age of consent at 17, and provide that mistake of age is no defense. In such circumstances, a man accused of sleeping with a 15 year old could probably not raise a mistake of age defense by merely claiming that the girl looked 17. But if he could prove that he was aware of the law, that the girl looked 18, and that he checked two forms of ID from her and talked to her parents, and that all these measures failed to disclose her true age, he might show that he took every reasonable measure to avoid violating the law. In such a case, the court might infer a scienter requirement and find the man not guilty based on it.
- Rick
Might bring up another law, where you can’t do an audio recording of someone without their consent…
In the end it comes down to intent not some weird legalities. If you can prove that the intent of the photos was to provide wank material to pedophiles, guess what you got kiddie porn.
The videotape in the OP is far from child pornography, first off you’ll need to prove that so-and-so’s intent was to make wank material, obviously it wasn’t. So then the blame could goto the older man, well she’s a minor, not a child - big difference. Now its an issue of having sex with a minor, which is an entirely different question.
I had an issue of Penthouse that had Vanessa L. Williams’s nude photos. Those weren’t k.p., but there was also a photo spread of Tracy Lords before she turned 18, 2 or 3 years before she disclosed her true age.
'I had an issue of Penthouse that had Vanessa L. Williams’s nude photos. Those weren’t k.p., but
there was also a photo spread of Tracy Lords before she turned 18, 2 or 3 years before she disclosed
her true age."
What about Pretty Baby? Lots of video stores have it. They used to have Tracy too. I remember that when they found out her true age. Stores took her videos out ASAP.
I read about (been awhile) a guy either A) getting busted for or B) making the obsrevation that some of Tracy Lords first movies were sold under the 8mm format. Since that is a film strip, every single frame (of sex) could be counted as an individual snapshot punishable by law. I forget the figures, but lets say 25 minutes of sex (during a 30 minute film) times 24 frames a second equals 36,000 counts of child pornography. UL? Maybe so. Interesting though.
Was this the Meese commision? Let me check…
Traci Lords did about 14 movies in 1984, when she was only 15 & 16 years old!
IMDb notes on some of her movies that her scenes were deleted for future distributions.
I just wanted to point out that if you go to the age of consent reference page cited and click on Canada, you’ll see a contribution from yours truly 