Introduction to the Difference Between Child Pornography and Naked PhotographsDifference Between Child Pornography and Naked Photographs as explained by the Tucson Criminal Attorneys at Ariano & Associates

Child pornography is a crime that has received a great deal of media attention in recent years. Not only this, law enforcement offices across the country (local, state, and federal) devote an incredible amount of time and resources to locating, arresting, and convicting those who create child pornography and those who distribute such images to other individuals. This is a good thing: there is a substantial amount of literature available about the detrimental effects that child pornography creates for the child.

All this being said, nude photographs of children or children and their parents are also popular amongst some parents. A picture of a naked newborn resting in the palm of the parent’s hand, or a toddler standing naked in a field with his or her backside facing the camera may strike the parent requesting the photograph be taken as “art” and not pornography. The question becomes, where is the line drawn?

It Comes Down to Intention

There is an old saying applicable to art that goes, “I can’t define art, but I know it when I see it.” Such a humorous but ambiguous and vague standard would not be helpful in a legal context. If such were the standard law enforcement officers and the courts were to use in determining whether a photograph of a naked child was pornographic, then a person’s arrest and conviction would vary depending on what officer investigated the case and what judge (or jury) decided the matter.

Instead, the demarcation between “art” and pornography often comes down to the intention of the person taking the photograph and/or possessing the photograph. Where a photograph is taken or possessed because the person wishes to arouse or satisfy his or her sexual desires, then the photograph is likely to be categorized as pornographic in nature. Conversely, where the photograph is not possessed with an intention to arouse or satisfy the person’s sexual desires, the photograph will likely fall into the category of “art.”  The 24 hour attorneys at Ariano & Associates are always available to answer your questions.

Determining Intention in a Criminal Case

intentional versus accidental in relation to the difference between child pornography and naked photgraphs as explained by the Tucson criminal attorneys at Ariano & AssociatesDetermining what a person’s intentions are can be difficult. A child pornographer can easily lie to jurors about his or her true motivation for taking or possessing explicit pictures just as a mother’s or father’s honest statements are misconstrued and disbelieved. The facts and the circumstances of the case will help a judge or jury determine intention. These relevant facts can include:

  • The state of undress of the child (full nude v. partially clothed);
  • The parts of the child’s body that are displayed;
  • The overall “tone” of the picture;
  • The relationship between the photographer, the possessor, and the child;
  • Any acts in which the child is engaging (obviously if the child is engaged in explicit sexual acts the photograph will qualify as child pornography.

Defendants who are charged with child pornography because they are in possession of explicit photographs of their children will want to explore the facts of their case fully with the jury.

Cautionary Words

Even if a parent’s motives are entirely pure, individuals should understand that public sentiment is presently very antagonistic toward those who make or distribute child pornography (and such sentiments are, in most cases, understandable and appropriate). This may cause some judges and/or juries to mistake the innocent motivations of a parent who wishes to preserve the beauty and innocence of his or her child. Unfortunately, there is little that can be done about this perception and prejudice. What is more, even if the original photograph was taken with innocuous motives, distributing that same photograph to other family members or friends does not automatically mean these recipients cannot be charged with or convicted of child pornography.  For more information contact an experienced Tucson criminal defense lawyer for more information.