The Line Between Innocence and Felony

This month, it was a Harvard art student taking a course called “Innocence in Nudity” and pictures of her nude 4-year-old son.

Last year, it was a couple of middle-aged professors in Michigan, who had decided to enlarge a photograph of their son, taken 18 years earlier as he stepped into a pair of underpants after a bath.

The year before that, it was a prominent Illinois obstetrician and his wife, who had photographed their 3-year-old foster daughter wearing black lace panties in what the wife said was a game of dress up.

Regularly, the wires sing of parents such as these, parents being met by police when they arrive at local photo labs to pick up prints of their naked kids. The parents are almost always angry and scared. Usually, however, they are not prosecuted.

Still, the idea of having to explain family photos to people sporting badges and guns strikes fear into those of us who think nothing of training the lens on our naked romping offspring. We are not, after all, famous artists like Sally Mann, whose dramatic photographs of her bare-skinned children have made her world famous, even as they have ignited debates about exploitation and consent.

Nor can most of us even claim to be art students. As I dubiously study the photo on my wall of my naked daughter and her naked best friend, a boy, in the bathtub, I start to wonder.

Are they. . . ? Could I be. . . ?

*

Not to worry, says the Los Angeles detective who responds to calls from concerned photo lab employees (required by law to report suspect photos) at least once a month.

“If a kid is in the bathtub, or on a bearskin rug or in the backyard, we don’t worry,” says Det. Bill Dworin of the LAPD Juvenile Division’s Sexually Exploited Child Unit. “We are more concerned with posing.”

What do you mean? I ask, and he invites me to his office, where he narrates quite a slide show: naked children with plump legs splayed for the camera; naked children engaged in oral sex with adults; naked children having sex with each other.

The photos are bad enough. But it’s hard to believe that adults engaged in such flagrantly criminal behavior would take their film to the local lab--after all, most of these are the sorts of poses guaranteed to prompt any responsible human being to call the cops--but that’s where most of the detective’s slides come from.

Arrests, prosecutions and jail sentences can and do flow from shots such as these.

Usually, though, when Dworin is summoned, it turns out some parent thinks posing a child in what could be interpreted as a sexually suggestive way is cute. Which may be odd, or inappropriate, the detective says, but not illegal.

Also, what may at first glance appear to be the sexual exploitation of a child may be something disturbing but not illegal.

Projected now on his wall, for instance, is an erotic vignette featuring a little girl who looks to be 5. She raises her top; she lowers her panties. She points her bare little bottom at the camera.

In this case, Dworin--whose investigations are as low-key as possible--interviewed the girl and her 8-year-old sister at school.

“If the kid had said, ‘Daddy took those pictures,’ then we would have had criminal charges,” Dworin says.

But Daddy hadn’t taken the pictures.

The 8-year-old had, after looking at her father’s Playboy magazines.

Questionable parenting, maybe, but that’s not a crime.

*

In California, it is illegal to depict “by film, photograph, videotape, etc.” sexual conduct by anyone under 14.

“Sexual conduct” is defined as you might expect (intercourse, masturbation, oral sex, sadomasochistic abuse). But there is one definition that is hazy: “Exhibition of the genitals . . . for the purpose of sexual stimulation of the viewer.”

How can anyone know what’s going to turn on someone else?

Take photographer Sally Mann. She maintains the nude photographs of her preadolescent children are strictly art and should be judged as such, but Dworin says he confiscates her book, “Immediate Family,” all the time when he executes search warrants at the homes of people suspected of possessing kiddie porn.

“Pedophiles are turned on by this stuff,” he says with a shrug.

Still, Edward de Grazia, a First Amendment expert who teaches at New York’s Cardozo School of Law, says he doubts any prosecutor “in their right mind” would go after an artist such as Mann. And none has.

Instead, it is the budding artists, such as the unfortunate Harvard student, about whom we’ll continue to read.

As it turns out, she will not face charges in connection with the photos of her son. Prosecutors determined that the pictures were not taken with lascivious or harmful intent.

She may, however, have a date with a judge on another matter. According to police, she was so angry when questioned about the pictures that she threw a lamp at an employee of the photo store. After that, she was charged with assault and battery and disorderly conduct.

Better that, I guess, than kiddie porn.

* Robin Abcarian’s column appears Wednesdays and Sundays. Readers may write to her at the Los Angeles Times, Life & Style, Times Mirror Square, Los Angeles, CA 90053.