A Blurred Line Over Art Vs. Pornography : Law: Police investigation of a photographer’s portraits of a 12-year-old model prompts artists to call for a change in the 1989 child porn statute.

When Laguna Beach photographer Marilyn Lennon told friends and fellow artists that slides she had taken of a partially nude 12-year-old model were turned over to Irvine police by a photo processing laboratory, it didn’t take long for the Kafka-esque saga of San Francisco photographer Jock Sturges to enter the conversation.

Sturges’ photographs, which often feature nude women and children, have been exhibited widely in galleries and major museums. In April, 1990, a call from a San Francisco photo lab to the FBI prompted a raid on Sturges’ studio where federal and local agents seized as many as 100,000 negatives and various items of photo equipment.

The case ended last month after a grand jury refused to return an indictment against Sturges on federal child pornography charges. Earlier, Sturges had to get a court order for the return of his property.

In Lennon’s case, Irvine police decided that after several days of investigation that photos of the girl, nude from the waist up, did not violate a 1989 state law barring possession of child pornography. But the case has been referred to police in Santa Fe, N. M., because the photos were taken at a professional workshop there. (As of Wednesday, police in Santa Fe said they were “still investigating.” Lennon’s original slides remain in possession of Irvine police, officials said.)

Lennon’s case probably will not result in charges against the photographer, in the opinion of several arts attorneys to whom the photos were described. But arts activists and civil libertarians say the case has increased unease over a state law mandating that commercial labs report evidence of “sexual conduct” involving children under 14.

Advocates of the law say it has been effective in bringing to light actual cases of child abuse and pornography that otherwise would have gone undetected. “It’s often the only thing that breaks a case,” said Deanne Tilton-Durfee, a Los Angeles child abuse expert and executive director of the Inter-Agency Council on Child Abuse and Neglect.

“Our sense is that (mandatory reporting laws) are very effective,” said Ernie Allen, president of the National Center for Missing and Exploited Children in Arlington, Va. Not only have the laws in California and other states resulted in convictions, he said, but they have helped to drive child pornographers further underground.

Some arts activists, however, argue that the law has become a political tool to squelch artistic expression and that the Sturges case was an attempt by the FBI to intimidate photographers. Sturges has said he now finds himself censoring his own work to avoid a replay of the incident, despite the fact that he was not charged.

“What we’re all concerned about is using these laws for political gain in this conservative climate,” said Matt Herron, a San Francisco writer and photographer who has become an activist on behalf of photographers. He characterized the Sturges case as “part of a general effort of the Administration to throw a bone to the right wing.”

Meanwhile, the investigation into Lennon’s photos “appears to be another blatant overreaction to an extremely vague statute,” said Susan Hoffman, executive director of the California Confederation of the Arts, an arts advocacy organization.

“Obviously, legitimate artists as well as children must be protected,” Hoffman said. “This (mandatory reporting) statute must be changed before more innocent people are hurt and the atmosphere in the arts becomes even more repressive.”

Lennon, meanwhile, remains somewhat bewildered at her situation. “I’m pretty amazed at all this,” she said.

California was one of the first states to adopt mandatory reporting laws for commercial film processors in the wake of the controversial 1986 report by the Commission on Pornography formed by then-Atty. Gen. Edwin Meese III. Allen, of the Center for Missing and Exploited Children, estimates “about 20” states now have similar reporting requirements.

The California Penal Code section that took effect in January, 1989, requires commercial film and photographic print processors (as well as any child-care custodian, health practitioner or employee of a child protective agency) to report evidence of child abuse to law enforcement authorities.

Commercial photo labs are required to report “any film, photograph, videotape, negative or slide depicting a child under the age of 14 years engaged in an act of sexual conduct.” Four of five listed definitions of “sexual conduct” describe actual sexual acts involving children.

Those definitions are not under question, according to Herron, who organized the Photo Law Reform Group (formerly called the Bearskin Rug Society) during the Sturges affair. The fifth definition, however, is the one that disturbs Herron and other arts activists: “Exhibition of the genitals, pubic or rectal areas of any person for the purpose of sexual stimulation of the viewer.”

“Essentially, that allows the viewer to interpret the law,” Herron said. “If the viewer is offended, then you’ve broken the law.”

“It’s a hopeless piece of legislation as it stands,” Sturges said, “that is so phenomenally subjective.”

The Photo Law Reform Group had considered urging the state Legislature to delete the offending definition of sexual conduct or modify it to make it more “clear-cut.” The group approached Assemblyman John Burton (D-San Francisco) with the idea, but he said the climate was not right. In fact, he warned, the effort could result in a more restrictive statute.

So instead, the group is developing a manual for both photographers and commercial labs to help give guidelines on the subject. In the Sturges case, much of the anger in the arts community was directed at the lab that reported the photographer to the FBI; the lab was picketed, received a bomb threat and obscene phone calls, and lost “tens of thousands of dollars” in business, according to Herron. Owners of Irvine Photo Graphics, the lab that turned Lennon’s photos over to police, say their business has not been affected and they have received “hundreds” of calls of support.

Law enforcement officials, meanwhile, have no problem with the law in its present form. Indeed, the San Francisco FBI office sent out letters to photo labs in the area reminding them of the state law obligating them to report suspicious photos.

“We are definitely supporters of the law, and we have had cases brought to our attention because of it,” said Barbara J. Madden, an FBI special agent who was part of the Sturges investigation. “It’s a good law and a law that’s protective of children.”

Getting actual statistics on how effective the law has been in leading to prosecution of actual child pornographers is difficult. Cases offered by law enforcement officials and child-protection advocates are largely anecdotal, as are reports offered by Sturges and others that the law has been used to harass art photographers as well as parents who took photos of their own children.

“I know very much that my experience was far from unique,” Sturges said. “It shouldn’t be happening. My investigation cost more than $1 million.”

While some investigations do not result in charges, Madden answered, “I think most people would be in favor of erring on the side of children.”

Tilton-Durfee echoed Madden’s view, while allowing that investigation of possible child pornography is a “gray area” that “sometimes hurts” the objects of the investigation.

“It’s all gray lines from one end of the spectrum to the other,” said Tilton-Durfee, who headed the child pornography committee of the Meese Commission.