The Claptrap Over Child Porn, Part II (Ignore at your own risks)

http://freedom.orlingrabbe.com/lfeti...ddie_porn2.htm

The Claptrap Over Child Porn, Part II

Part 2: The US Government Enters the Child Porn Business
by Jim Peron

With the demise of the kiddie porn industry, the US government was faced with a problem: no one was breaking the law — or at least very few were. By changing the rules of the game midterm, the federal government was able to create entire new classes of criminals. One substantial change made was that individuals were now regularly solicited by various police agencies to purchase the newly banned items.

The government created dozens of phony companies and began soliciting people to purchase the material. Often the government would use mailing lists of regular porn sellers, or they collected names and addresses from address books of people they had investigated. In other cases they would run ambivalently worded advertisements in magazines targeted toward swingers, porn consumers, or gay men. In one case they confiscated the mailing list of Award Films, a video company, which distributed mainstream films with gay themes. The list of purchasers of films such as Suddenly Last Summer or Taxi Zum Klo was then distributed to various police agencies for use in their sting operations.

Government agencies would send brochures under a phony company name to the individual they targeted. In some cases the brochures made it clear that the items being offered were sexually explicit material of individuals under the age of 18. In other cases the brochure used terms like "youthful" or "girls" and assumed that anyone reading it knew that the reference was to an underaged individual. In still other cases they would send personal letters claiming that a "mutual friend suggested I write you." If the individual ordered anything, they were arrested with great publicity. Some of the people arrested had no idea that so-called child porn was being offered. Others continually refused to purchased but were solicited over and over until, perhaps out of curiosity, they sent in an order. It made no difference to the law officials.

In some cases the police would place ads in adult publications pretending to be a woman with a young daughter. This "woman" would solicit correspondence from men. The letters the police sent were sexually explicit and, after gaining the confidence of the man, the "woman" would mention that she had a younger daughter who was planning to become sexually active. She would claim to be concerned about what her daughter's first experience would be like and began suggesting that this man might help her out. Finally, she would solicit him to have sex with this imaginary daughter. If the man agreed he was arrested and charged with "child endangerment" even though no child, in fact, existed.

These "sting" operations were quite successful and the police authorities managed to create criminals on a grand scale. Without these operations it is highly unlikely that the bulk of the individuals arrested would ever have committed a "crime" by purchasing child porn, especially since the only source for the material was the US federal government. Attorney Lawrence Stanley points out, "the line between law enforcement and inducing law-breaking has become highly blurred, as undercover "friends" encourage the forbidden fantasies of their targets and sell or send them child pornography after a great deal of prodding. In some cases, the forbidden fantasies are those of the investigating agent."

O'Malley's Legacy
One of the largest sting operations in American history was conducted by a customs agent named Jack O'Malley. O'Malley was absolutely hysterical when it came to alleged child porn. He was convinced that tons of the material was being distributed throughout the United States. He claimed that 20 million copies of child porn tapes were sold or rented in the United States each year and that on a world-wide basis the number would exceed 250 million. He claimed that child porn produced larger profits than all the US TV networks and Hollywood film studios combined, and estimated that child porn was a $3 billion a year business in the States.

Now with millions and millions of child porn tapes being distributed one would think that O'Malley would have been able to find some. But he couldn"t. According to Newsweek: "O'Malley and his colleagues noticed that the volume of child porn seized by customs agents at O'Hare International Airport and other points of entry for overseas mail was dropping off." In fact, such shipments did drop off but from very low numbers to begin with. O'Malley, instead of seeing the obvious fact that child porn was a very small business that was in decline, "concluded that foreign distributors had found ways to circumvent U.S. interceptions. The only way to find the customers then, O'Malley decided, was to have Uncle Sam go into the porn business."

O'Malley created a company called Produit Outaouais which offered photos and videos. The government officials would reproduce photos of young children and mail them to individuals they targeted. Newsweek reported: "Together with similar stings run by the U.S. Postal Service over the past few years, federal agents have become major traffickers in kiddie porn." In this one sting operation alone two individuals who were entrapped by O'Malley committed suicide; one a 25-year-old student and the other an attorney.

Cops Go After Parents
With broadened definitions the police began going after other nefarious individuals—artists or parents with nude pictures of their children. David and Patsy Urban were arrested for producing child pornography. David Urban is a photographer who returned home one day as his wife was about to take a bath with their 15 month old grandchild. The child was playing and Urban took some photos, which were dropped off at a local store for developing. When he went to pick up the photos he was arrested and police falsely told local media that the photos included ones of Patsy having sex with the child.

Photographer Alice Sims had taken some nude photographs of her daughter which attracted local police. When US Postal Inspector Robert Northrup raided the woman's home she pointed out her artistic credentials and argued that the photo was not pornographic. Northrup told her: "Art is anything you can get away with. This is all filth."

Police in San Francisco raided the home of photographer Jock Sturgis alleging that he was a child pornographer. Sturgis had taken many photos of families at various nudists resorts in the US and Europe. Police charged that these photos were actually child pornography because they included nude children. Sturgis reported: "In the course of their investigation, the FBI effectively traumatized the hell out of a lot of children." He told of one child who was interrogated without the presence of her parents and who thought she was in trouble and would go to jail "for having made naked pictures". Without exception the parents all defended Sturgis and his work, which was not sexual.

Photographer Ejlat Feuer of New Jersey had his children taken into "protective custody" in the middle of the night because he had photographed his daughter in the nude. Dr. Mary Ann LoFrumento, a pediatrician who examined Feuer's daughter said that the police investigation traumatized the child. She said: "Leah is not suffering from the effects of the pictures, but from the arrest of her father and questioning by the police."

William Kelly was arrested because his young son and daughter had used the family camera and taken nude photos of each other. Police insisted that Kelly had taken the photos and the children were threatened with jail time in juvenile hall if they didn't charge their father. The girl finally accused her father but in court admitted "I told him [the police officer] yes. I thought if he heard what he wanted to hear everything would be all right." Kelly sued the police for abuse and was awarded $55,000 but the award was later overturned when a judge ruled that the police are immune from liability.

James Smith was convicted of child pornography for some photos he took of three young girls. The girls were totally clothed in all the pictures but the court ruled them pornographic because the girls were playing with a mink tail and pretending to whip each other with it. Prosecutors claimed the tail was a "whip-like device" and that the horsing around of the children was "sadistic and masochistic abuse."

In some cases the courts have convicted individuals of child porn—not because the photos were actually pornographic, or even nude, but because the court believed the photographer was sexually stimulated by the photos. A man in southern California was convicted of child pornography because he took photos of some teenaged boys shirtless. The court contended that the man was attracted to teenaged boys, therefore the photos were child pornography. In another case a man was convicted of child pornography because he hired a photographer to take photos of clothed girls. Neither the photographer nor the parents were charged—just the man who commissioned the photos because he allegedly found such photos erotic. FBI agent Ken Lanning said, regarding this case, "these kind of pictures, rather than more graphic ones, are frequently published in magazines distributed to paedophiles in an attempt to circumvent the laws against obscenity and child pornography." In other words they are arguing that any photo, regardless of how chaste, which a paedophile might enjoy, qualifies as child pornography. In essence this theory would make illegal all photos of children.

Stephen Knox, a student at Pennsylvania State University was arrested and convicted for receiving and possessing child pornography after he purchased a video of clothed teenaged girls. At no time were the girls nude nor did they engage in any sexual conduct. But the court argued that some of the video showed a girl's thigh which the court considered part of the pubic "area." The court said: "Although in every instance the girls' genitals were covered by either underpants or a bathing suit, the area in close proximity to the genitals, specifically the uppermost portion of the inner thigh area to the girls' genitals, was clearly exposed." When the case was appealed the Third Circuit Court of Appeals decided that showing the upper thigh wasn't sufficient to qualify as pornography but then made matters worse by claiming that photos of clothed children "still provide considerable interest and excitement" to paedophiles and therefore the conviction stood. This was the same logic used when Calvin Klein was threatened by Janet Reno's Justice Department with child porn charges when the company ran ads for their jeans featuring young models.

When Knox took his case to the Supreme Court it attracted the attention of politicians. President Clinton publicly supported the conviction and Attorney General Reno actively worked to uphold the conviction. Reno has a history of getting involved in cases, which like the Knox case, are highly suspicious. As Dade County State's Attorney, Reno spearheaded charges against a young boy, Bobby Finjne, as a child molester. Reno insisted on trying the child as an adult. After one of the longest criminal trials in Dade County history the boy was found innocent. Reno is, perhaps, best known for her role in the Branch Davidian massacre where her agents stormed a religious compound with noxious, explosive gas. In the resulting fire many children were burned to death.

Mark and Tina Vollbach were arrested as child pornographers because they took nude photos of their children. US Postal Inspector Mike O'Hara took copies of the photos and distributed them to the media. In this case Assistant United States Attorney Richard Delonas tried to convince the court that a photo of a bare butt qualified as as lascivious display of genitals. When the judge was perplexed concerning the Vollbach's being charged for having a rear photo of their child, he asked Delonas: "No one has their genitalia on their buttocks. The pubic area and buttocks aren't synonymous: right?" Delonas responded, "I think an argument can be made in that direction." Delonas also said, "there is no definition as to what parts of the body are included in the genitalia or pubic area" and that means he can use his own interpretation.

A nudist family had their life disrupted because they had photos of their teenaged daughter sunbathing in the back yard. William Lerch was convicted as a child pornographer for taking a nude photo of his daughter when she was playing just before taking her bath. One photo, which showed the girl hugging her mother was described by prosecutors as showing "imminent lesbian incest."

George Dimock was arrested for possessing a photo of his two-and-a-half-year-old son standing nude in a wading pool. Well-known photographer Robyn Stoutenburg had a nude photo of her 4-year-old son confiscated from a gallery because police contended it was pornographic. Marilyn Zimmerman, an artist and professor at Wayne State University, was raided by police as a child pornographer because she had taken nude photos of three-year-old daughter. Luckily for her, Michigan's law on child porn exempted nudity that has "artistic value".

Kathyrn Myers entered hell when she took some film in for developing. Unbeknown to her the film contained some nude photos taken by her 8-year-old daughter. Myers even forgot to pick up the developed film which was then inspected. Police were called and Myers arrested. Police interrogation so terrified the girl, who thought she was in trouble for taking the photos, that she said she didn't know who took the photos. On the basis of the girl denying knowledge of the photos the mother was arrested and charged. It later turned out that the girl had taken the photographs of a friend and said they were playing "baby" and were naked and crawling around on the floor.

Oral Hatch's Virtual Porn
In 1995 new legislation was proposed in the U.S. Senate to broaden the definition of child porn once again. The new law covered photos or art in which no real children are depicted. Sponsor Orrin Hatch argued that computer imagery of adults could be used and manipulated to change their appearance so they look like children. The argument is that if computers can create life-like dinosaurs as in Jurassic Park, the same technology can be used to produce sexual images of non-existent children. Historically the basic legal argument against child porn has been that the production of the material required the commission of a criminal sexual act against a child and thus is a violation of the rights of the child. This justification for censorship is now shown to have been false as the censors try to ban material in which NO real child is used as a model.

The so-called "reforms" in child porn laws, under the conservative regime of Reagan however, are nothing compared to the threat to civil liberties posed by the Clinton administration. In 1996 another "Child Pornography Prevention Act", S. 1237, was quietly passed and signed into law by President Clinton. This one makes the manipulations of Ed Meese look like amateur work.

It certainly seems odd that another law preventing child pornography was needed since such material has long been illegal in the States. The Supreme Court in New York v. Ferber ruled that child pornography required the sexual exploitation of children and that this fact, not the content, made it illegal for commercial distribution. In other words, they argued that the rights of real children were violated in the production of the material. And the Court ruled that the material in question need not be obscene to be illegal.

But the new law goes miles beyond the legal protection of the rights of children. This law now bans any depiction which "appears to be of a minor engaging in sexually explicit material." It is no longer enough for the participants to be adults. This law requires three criteria to be meet before a defense against child porn charges can be made. First, the participants must be real people — not computer generated models. Second, they must be adults. Third, "the defendent did not advertise, promote, present, describe, or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor engaging in sexually explicit conduct." Remember, the material in question need not be obscene. And for those found guilty the law requires severe imprisonment of up to thirty years and unlimited fines. The law even forbids judges from using their own discretion in sentencing.

The recent controversial film Kids seems to clearly fall into the realm of child pornography under this new law. The fact that no genitals are ever displayed in not relevant. The film clearly depicts underage individuals simulating sexual conduct.

Let's take a bizarre, but very real, example of a film that might be classified as child pornography under this new law. Infantalism is a very strange fetish where the adult enjoys pretending to be a baby. This may include wearing diapers, etc., as well as various sexual acts. If a man and a woman play out this fantasy and video tape it, that tape may be classified as child porn even though the participants are obviously adults. If the man is dressed as a baby this can convey the "impression" of him being a minor. Another fetish is that of shaving. Some adults get sexual pleasure from shaving their body hair and videos depicting this activity are not uncommon. But will prosecuters argue that a model with a shaved pubic area is intended to give the impression that the model is a minor? Another example would be adult men who like to pretend they are school boys being disciplined by a stern headmistress. If a video shows this fantasy, and the man dresses as a schoolboy, would this now qualify as child pornography—even though all the actors are well beyond childhood? If past history is anything to go by then we can be assured that some prosecutions of this type will take place. And, more disturbing, is the assurance that some people will be convicted and sentenced. All of this in the name of stopping child pornography though not one child would be involved.

When child porn was outlawed the argument went that the film was created through an illegal act—the sexual involvement of a child. But under this new interpretation videos depicting entirely legal acts would be made illegal. It is legal to dress up as a schoolboy, a baby or to shave your pubic hair. It is legal to play sexual pretend games. But this law says that if these fantasies are recorded the participants are now child pornographers. How long will it be before another session of Congress, using this law as precedent, starts regulating the sexual fantasies of consenting adults in their own homes? If, as so many politicians pretend, this law is another step in the war to wipe out paedophilia, why stop here? If a film of an adult pretending to be a child encourages paedophilia then the actual carrying out of that fantasy, in the privacy of their bedroom, would have the same effect. So why not regulate that too? If shaving your pubic region encourages child molesting then why not forbid this act? This material is being regulated, not because it involves children, but because some politicians invented a theory which claims this "might" happen. With this type of logic what sexual practice wouldn't be open to government regulation?

Various mainstream films which have portrayed "coming-of-age" stories may now be classified as child porn. In some cases not only are the actors simulating sex but they are legally minors as well. Again, the fact that no real sex took place is not a defense—all three criteria must be met.

No More Cowboys
Already the law has had an affect on adult publications which do not depict underaged individuals. The British magazine Euroboy was forced to change its name because the word "boy" was considered too risky in that it could be deemed to "describe" the models, thus implying that they were underage. In fact, the magazine in question is quite tame by American standards as it is produced in the United Kingdom which has far more stringent censorship laws. The magazine does not say or even hint that the models are underage—which they are not.

Euroboy editor Bjorn Andersen called this law, "The American Thought Police." US distributers of the publication started dropping it from distribution once the law went into effect, and thousands of copies were destroyed. One attorney, for the American Media Coalition, said under this law "such items as jeans ads, motion pictures whose story line includes sexual activity or sexiness by characters deemed to be minors (such as Lolita) and photographic illustrations or art photos considered by source viewers to appear to be under eighteen could all be criminalized by the act."

The Executive Director of the publishing house that produced Euroboy said the new law will detrimentally affect them, in spite of their tame image: "From a marketing point of view it's a disaster—there are all kinds of 'boy' words which are sexy but have no special implication of childhood. ... if we can't have cowboys, muscleboys, toyboys, Playboys, Barrowboys and boy-bands—what next?"

What this legislation does do is reveal clearly the intent of such so-called "child porn" legislation. The fact is that the law has been sufficient to deal with the issue of kiddie porn for almost twenty years. That child porn is extremely rare indicates that no crisis currently exists. Yet, every few years Congress passes a new "child" porn bill. But the intent of the law is not to protect children — who already are fully protected. The intent is to make it more and more difficult for adult erotica to be produced. Each new piece of legislation makes it more difficult to produce erotic material with adults. New labelling laws, allegedly to protect children, now require absurdly long labels on the boxes and videos of adult tapes. Record keeping requirements, again allegedly passed to protect children, are more and more onerous. One slip up on these complicated requirements can send a producer to jail. Now the producers have to make sure that the model doesn't "appear" to be underaged and that the words they use to describe the film don't given anyone an "impression" that the models are underaged.

"Real" Computer-Generated Images Are "Exploited"
It should be remembered how this all started. In New York v. Ferber the Supreme Court took the position that free speech rights don't apply to child porn because real children are being "sexually exploited" for the production of the material. The new law makes it clear that it was never the rights of children that the censors were concerned about, but the content or the message implied in such productions. The new bill specifically bans all erotic material which is computer generated, in spite of the fact, that the rights of no child were violated in the process of production. Free-speech feminist Joan Kennedy Taylor points out that this new "content-based" censorship may now open the gate for the banning of all adult material:

Up to now, the courts have resisted any arguments that said that expressive material could be targeted because of its viewpoint or orientation. But if child pornography can be banned for its unsavory content on the basis of an unproven assertion that it causes crime rather than because it is the commercial exploitation of a crime that has already been committed, how can adult pornography resist the similar charge that it "degrades" women and causes violence against them?

Each time Congress takes another step to protect children the rights of adults are negatively impacted. Yet the children are no better protected than before. The new law does not even pretend to be protecting the rights of real people. Child porn existed, but was extremely rare and it was something that virtually no one felt comfortable defending. With no one willing to stick their heads out for an issue like this, the censors started making headway. Each new child protection law made adult erotica that much more difficult to produce legally. Each new definition and power granted stripped away a bit of the legal foundation the Courts gave to adult material. Every few years they circle in closer and closer on their real target. Child porn is a smokescreen. It diverts the attention of free speech advocates and terrifies them.

Joan Kennedy Taylor sums up the issue:

Why didn't any senator other than Feingold speak out? Did they just not know what was in the bill? Or were they, even those who were retiring, afraid of the sound bites that would result? Catherin MacKinnon is alreadly denouncing free-speech feminists such as myself as "pimps for the pornographers" because we say that the adult hardcore porn industry is protected by the First Amendment. What do you suppose we'll be called now?

Internationalizing the War
The various special-interest groups in the child abuse industry first claimed that the United States was the mecca of child pornographers. They whipped up sensational crusades to stamp out the virtually non-existent child porn business. When such crusades turned up virtually no child pornographers they changed their emphasis and started entrapping individuals into buying the material from themselves. They also started claiming that Europe, not the United States, was the centre for child porn. While foreign claims are not as effective politically they are a convenient way of escaping the growing suspicion that the whole crusade was phony. US authorities singled out the Netherlands for special attention because they were unhappy with the traditional Dutch tolerance of sexual expression.

Lawrence Stanley's research shows that in Europe:

...from 1970 to 1980, approximately 125 issues of a handful of different magazines were published....After 1980, production was negligible. Between 1980 and 1984, five issues of Lolita were published, but most of the images in those issues were taken from previous ones. Two issues of a magazine depicting girls posing nude, Lolly's, were published in or around 1981; and nine issues of David, depicting boys engaged in sexual conduct, were published between 1980 and 1986. No other commercial child pornography production has been documented either by law enforcement officials or private researchers, with respect to the Netherlands. In the States the number of publications featuring sexual images of children were even more scarce.

As a result of the US government trying to embarrass the Dutch government the Amsterdam police raided a large number of sex shops in July, 1984. A small quantity of child porn was found, but nothing in any real quantities. The value of the material was easily under $10,000. A few months later the police once again raided the sex shops. Police officials announced: "We checked several times at several places in the Netherlands and hardly any child pornography is to be found at the moment." The police spokesman said that what little they could find "was very old material. I used to work in the vice squad in Rotterdam nearly twenty years ago and the seizures then, in the 1970s, were the same books, the same pictures, as are being seized now."

The US government got permission from Dutch authorities to open a US customs office there to help in the crusade against child porn. U.S. Customs Special Agent John Forbes told the Washington Post that it was "virtually impossible" to find child porn in the Netherlands. Dutch authorities continued to try and please the American officials, who were now setting Dutch policies, and they raided an art gallery in Amsterdam because it showed a series of photos by Don Mader. The photos in question featured nude boys. The court convicted Mader in spite of the fact that the photos did not qualify as obscene under Dutch law. Instead the court said the photos "intended to arouse sexually." An appeal court overturned the conviction saying the images in question were not banned under Dutch law.

Child porn crusades seem to be "much ado about nothing." Sexually explicit films or photos of young children are very rare and never made up a substantial percentage of the pornography trade. There is no evidence of organized, commercial production of kiddie porn nor is there any reason to believe that organized crime is involved in such trade. Child pornography is so rare that the US government went into the business of producing the material in order to entrap individuals into breaking the law. Had the police authorities not produced and distributed the material themselves, the number of child porn cases in the States would be almost nonexistent. What little material that does exist is often several decades old and often the same photos were reprinted over and over. Most of the photos which appeared were not "obscene" and often didn't even show children nude. A minority of the photos in "child porn" publications did show sexual activity but mainly masturbation or sex between children. It was not common for "child porn" to show adults having sex with children.

The actual number of children who were used as models in child porn probably never exceeded a few thousand world wide. The material that is available commercially, that US authorities insist on calling "child porn", features older adolescents of 16- or 17-years-old — material legal in Europe but illegal in the States since the 1984 revision of the law. Experts tend to agree that the only child porn produced today is done so privately by paedophiles for their own use and that it is not being commercially distributed. At most the small number of collectors will trade material with each other. The kiddie porn panic is a creation of Capital Hill politicians and serves their purposes. It has been latched onto by special interest censorship groups and has been an effective smokescreen to attack the free speech rights of all adults.

Jim Peron is the owner of Aristotle's Books in Auckland, New Zealand, and the executive director of the Institue for Liberal Values, Auckland (www.liberalvalues.org.nz). He can be reached at esteem@orcon.net.nz.