Prosecuting Innocence

Prosecuting Innocence

Like countless parents, Cynthia Stewart of Oberlin, Ohio, is an ardent amateur photographer who loves to take pictures of her child.


Like countless parents, Cynthia Stewart of Oberlin, Ohio, is an ardent amateur photographer who loves to take pictures of her child. As has happened to a small but disturbing number of such parents around the country, Stewart is now facing prosecution for making “child pornography” and is being investigated by child protection services for possible child abuse.

What happened? In a now-familiar scenario, a technician at a Fuji Film processing lab turned in to authorities a roll of film containing pictures of Cynthia’s 8-year-old daughter, Nora, at various stages of taking a bath. Add a zealous county prosecutor and a good dose of inflammatory news coverage–the Cleveland Plain-Dealer did a front-page story, a local TV news broadcast put Cynthia’s mug shot on the screen, the Oberlin News-Tribune covered her arraignment under a banner headline “Bus driver, parents charged with abuse” (the parents being a couple who had starved their 5-year-old down to twenty-five pounds)–and you have all the ingredients necessary for the financial and emotional destruction of a family that has done nothing wrong, nothing unusual, nothing that would have seemed remarkable when they themselves were children.

I should explain that Cynthia and her partner, David Perrotta, Nora’s father, are Nation people. David, who is now involved in the magazine’s electronic publishing projects, used to be the magazine’s operations manager, running our computer system, not to mention patiently and good-humoredly helping premodern butterfingers like me retrieve lost work and wrestle with e-mail programs. The love and devotion of David and Cynthia for their little girl is obvious to all who know them. It was, indeed, largely to give her a safe, happy, unfrenetic childhood in a close-knit community that in 1997 he and Cynthia relocated to Oberlin, where Cynthia, who attended Oberlin College, has lived for most of the past thirty years. Until she was placed on “voluntary” leave of absence as a result of the charges against her, she worked as a schoolbus driver, and is a well-known and well-liked local figure, who has much support in the town.

How does it happen that one day a mom is taking her daughter to Suzuki violin class and the next she is being led from her home in handcuffs as a child pornographer and hit with two felony charges, each carrying a maximum eight-year sentence? Even by the famously subjective standards of obscenity law, Ohio’s child pornography statute, passed in 1996, is seriously flawed. Take the two provisions Cynthia is accused of violating. The first, on its face, seems to criminalize the mere taking of a picture of a child “in a state of nudity,” with exceptions for certain purposes, among which the family photo album is not mentioned. (Ohio case law has determined that “nudity” must mean a presentation of the child that is both lewd and graphically focused on the genitals, but the statute itself has not been amended to reflect that, and a prosecutor does not have to advise a grand jury of the relevant rulings.) The second count involves “pandering,” which usually means selling or procuring or distributing something illicit and sexual–some sort of sordid exchange between two or more people. In Ohioese, however, it seems to mean that the prosecution plans to argue that the pictures show Nora masturbating.

I’ve spent days talking to legal experts, and I still don’t understand what is supposed to be pornographic about taking a picture of your naked child. Depending on the child, it might be a bad idea–or a good idea–but unless you believe nakedness itself is obscene, what makes it porn? It can’t be the use to which the picture is put. The state is not arguing that Cynthia was planning to do any of the things people do with porn: publish it, sell it, trade it, use it for personal sexual gratification, like those home videos people make of themselves having sex. What makes the photos of Nora porn seems to be that they struck a handful of total strangers as “over the line,” in the words of the Oberlin cop who first investigated the photo lab referral. Such a judgment call raises the question of whose judgment is being called upon. In one photo Nora’s facial expression appears to the prosecutor as “provocative”; to Cynthia’s lawyer Amy Wirtz it looks “sarcastic.” The showerhead Cynthia’s accusers apparently see as a masturbatory aid looks to others who have seen the photos like, well, a showerhead.

The same picture can look sexual or nonsexual depending on the beholder and the context. For Cynthia the context is her photo albums with their thousands of pictures documenting Nora’s life. At Fuji Film the context is an official policy that requires workers to watch out for suspicious photos and report them. Moreover that policy exists within a larger context–our ongoing fascination and panic over everything to do with children and sex. At the same time as children’s bodies are relentlessly sexualized in the popular culture–think of JonBenet Ramsay–many cling to the notion that children are, or should be, asexual. In this overheated atmosphere, as the art historian Anne Higonnet points out in her brilliant study of representations of children, Pictures of Innocence, simplistic ideas about photographs as direct and unmediated images of “reality” can easily wreak havoc.

David and Cynthia took out a $20,000 lien on their house to post bond to get her out of jail. They have spent $20,000–their life savings–on legal expenses so far, with more to come. Although Nora’s school has been warm and protective, she has been taunted on the playground and is under a lot of stress–as what child would not be who knows her mother faces sixteen years in jail for taking her picture?

The whirlwind of activity undertaken by the state of Ohio supposedly on Nora’s behalf has brought her nothing but misery and fear. However the case turns out–it will probably go to trial early next year–a great deal of damage has already been done. Cynthia and David’s friends are raising money for her legal expenses. Contributions to the Cynthia Stewart Defense Fund can be sent to the Main Post Office, Box 332, Oberlin, OH 44074-0332.

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