The Hunting of Dr. Craft
What, exactly, is "lascivious exhibition of the genitals"? Is it always a result of a child being posed by or for pedophiles? Or could a harmless family snapshot of a toddler in the tub also qualify? Police and prosecutors often swear they can tell the difference. But by the late 1980s, so many mom and pop shutterbugs were getting arrested that in a case known as Dost, a judge in a state district court in California came up with a test that poses six questions to determine if a picture is kiddie porn. The list includes queries such as: Is the focal point of the image the child's genitals? Is the setting a place generally associated with sex? Is the child nude? Posed or dressed inappropriately? Displaying "sexual coyness"?
The answers might at first seem obvious, but in the end they're mired in subjectivity. In one case where the test was used, the government argued that it was improper to photograph a child on a beach because "many honeymoons are planned around beach locations" (a federal appeals court rejected the argument). In another case, the fact that kids were snapped at a playground and a park was deemed incriminating, since children are often found at playgrounds and parks, and pedophiles may get aroused by these venues.
Even nakedness is no longer required to define a picture as criminal. In the mid-1990s, a case known as Knox v. the United States started moving through the courts after Pennsylvania State University graduate student Stephen Knox was convicted for owning a videotape, marketed by a company in Nevada, that zoomed in on the pelvic area of underage girls doing sexy, gymnastic moves while dressed in leotards, shorts and bathing suits. A federal appeals court held that photos and videos can show "lascivious exhibition of the genitals" even when the genitals are covered up.
Such decisions won't hurt "normal" people, authorities insist. The tapes Stephen Knox bought were clearly advertised as pedophile material, and the laws are meant to catch deviants and leave everyone else alone. The language of federal and state statutes specifies that images are illegal only when made to get the producer, the child or the viewer sexually excited. Absent that intent, we're supposed to rest assured that our baby-on-the-bear-rug photos are fine.
But who decides intent? In Augusta, District Attorney Craig was enraged that Bruce Craft shot pictures of naked children who weren't his: children on the potty and peeing, children whose genitals sometimes peeked from their shorts when they were sprawled at play or asleep. Craft says he took them out of a mania for capturing Kodak moments. Craig didn't believe it, even though no pornography was found in the Crafts' home or on their computers, Craft never distributed the images and he had no history of urges toward children. No matter--since he took the pictures, he's a pedophile. And since he's a pedophile, he took the pictures to get aroused. Which makes him a pedophile. It's like the whirlpool in Aguirre, the Wrath of God. There's no way out, especially since a Georgia appeals court ruled that it could infer Craft's lust even if evidence demonstrating it is "exceedingly weak and unsatisfactory."
Few First Amendment analysts have examined this vortex of unreason, but one who has looked carefully is New York University School of Law professor Amy Adler. In densely footnoted law-journal articles written over the past few years, she warns that the Supreme Court is signing off on blurry lower-court decisions in child-porn cases instead of drawing bold lines around prohibited expression in order to protect what is allowed--as the High Court does habitually for other kinds of speech.
And she has deeper worries about the entire culture. With their obsessive emphasis on parsing child images for lewdness, lasciviousness and focus on clothed and unclothed genitals, the current kiddie-porn laws push all of us to see, and to think, like pedophiles. As an example, Adler takes us to 1999, when Calvin Klein ran an ad campaign for his line of children's underwear. One ad, which appeared in newspapers and on a giant Times Square billboard, showed two preschool-aged boys laughing and jumping on a sofa in their briefs. A public outcry ensued, and one critic suggested that genitals were discernible in the photo. "I went back and looked," Adler writes. "One of the little boys' underpants seem baggy as he jumps in midair. Is that an outline of his genitals I wondered? It was then, as I scrutinized the picture of the five-year-old's underwear, that I realized I was participating in a new order, a world created and compelled by child pornography." She wonders if that world is provoking more real sex abuse.
The possibility of real abuse should be carefully investigated, Adler notes, and this is where photos and videos can be quite useful. Creepy but not overtly sexual images can prompt inquiry into what else, if anything, the adult was doing besides taking pictures. "Prosecute people who molest children as molesters," she says, and not as the creators of borderline photos and videos. "Pursue the underlying act. Not the representation."