Okay, hypothetical situation (I’ve been reading porn threads for the last ten minutes and now I have a question of my own) - I take a picture of a 18 year old girl, naked, in a suggestive manner. She’s just turned 18, and looks young for her age.
Someone finds it, and accuses me of having underage porn. How could I prove she’s old enough?
Or vice versa, how could someone prove that a picture I have is an early-blooming 17 year old as opposed to someone of age?
Many porn tapes and DVDs start with a screen that says that proof of age of all participants is on file somewhere in accordance with a particular law (they include the number of the relevant section of the law, which I believe is a federal law).
I don’t have any porn handy and I don’t think my wife would believe I need to watch some right now for research purposes. If nobody can cite the exact wording of the statement, I’ll try to find it later. But I’m sure there is a single guy with a huge stash of porn who can cite the disclaimer for you.
If it’s a digital camera pic, it is usually digitally (invisibly) stamped with time and date. I assume that can be faked, but I’m not sure. You should photograph her ID (two forms, including a photographic one) immediately afterward. Huzzah, proof. Or at least, as much proof as you need for the law.
If it turned out to be a fake ID that the girl owned, you weren’t qualified to know that was so.
Federal law requires that if you’re taking pictures like that, and they end up in interstate distribution, you must “…ascertain, by examination of an identification document containing such information, the performer’s name and date of birth, and require the performer to provide such other indicia of his or her identity…” and keep records of same.
In other words, the law puts the burden on you to not only check IDs, but keep a record of same.
See 18 USC § 2251 et seq.
as long as i can jerk off to it, i don’t really care
A digital camera’s date stamp is no real evidence at all, because the user can set the date and time to anything at all.
IANA lawyer, but I’ve spokin to one on a related subject – proving my state of knowledge.
A typical proof involves maintaining a daily, bound, business calendar, noting when such pictures are takin and what evidence the model has provided that she is of legal age. A photocopy of that evidence would be very helpful as well.
The point of the bound daily calendar is that it’s fairly easy to detect if someone alters past data, and fairly difficult and time-consuming to rewrite in its entirety in order to conceal some past act. You have thus met your burden of proof, and if you are accused of having falsified your documents, the purden of proving that falls upon the accuser.
This is very much a case of YMMV with your own jurisdiction. Since Speaker is from Canada, let’s use the Canadian statute, the Criminal Code. The relevant provision is s. 163.1(5), which reads:
This provision creates a defence of due diligence, but how does that defence work in practice? Well, the general rule in Canadian criminal law is that the accused never has to prove anything. The presumption of innocence means that the onus is always on the Crown, both to prove the elements of the offence and to disprove a defence, once raised by the accused. (I believe that this is an area where Canadian law takes a different approach than U.S. law - we don’t recognize a distinction between negative and affirmative defences for the purposes of the Crown’s onus of proof.)
The leading Supreme Court on s. 163.1 is R. v. Sharpe, [2001] 1 S.C.R. 45. In considering another defence under the section, artistic merit, the Court stated the following:
So it sounds like in a case like this the accused would have to point to something that suggested he had taken reasonable steps to verify the girl’s age, and the Crown would then have to disprove the defence, beyond a reasonable doubt.
Of course, this is just a Sunday morning WAG. The above is not intended as legal advice about your personal situation, but simply to comment on a matter of public interest and discussion. If you need legal advice about your own situation, you should contact a lawyer.
“Someone finds it, and accuses me of having underage porn. How could I prove she’s old enough?”
How would you prove she was old enough?
You could ask her.
At the very least, your post is obscene and jerkish. Don’t post crap like that again or you will lose your posting privileges.
bibliophage
moderator GQ
Speaker for the Dead
If you are using film, the first frame should show the model’s face, the model’s PHOTO ID held next to the cheek and the day’s front page from a recognized newspaper below the chin. This is a close-up. All subsequent exposures on the film should not be broken. i.e., taking a shot of something outside the studio and then returning to the shoot.
Digital shoots, it doesn’t matter what time or date the camera is set for, it’s the model’s date that is important. Use the same procedure above.
If there is a break in the sequence or when starting a new roll of film, shoot the model- photo id –newspaper again.
I hope this helps.