Explanation of Unlawful Images

Dr. Frank Kardasz - revised August 17, 2008

Unlawful images and videos that depict the sexual exploitation of minors are commonly called child
pornography. In most jurisdictions unlawful images are serious crimes. What is wrong with such images?
Beyond sexual self-gratification, possessors and traffickers of unlawful  images use them for one or more
reasons including (Child pornography, 1986):

  • To blackmail children into keeping silent about the abuse.
  • To preserve a child's youthful image at the age preferred by the pedophile.
  • To establish trust and camaraderie with other pedophiles.
  • To gain access to other markets and children by exchanging material with other pedophiles.
  • To duplicate, produce and sell for profit.
  • To reassure themselves that their deviant behavior is shared by others and therefore not abnormal.
  • To seduce children and lower the child's inhibitions as part of the grooming process intended to  
    model deviant sexual behavior.

Danger

Are the possessors of unlawful images dangerous? Is someone who looks at pictures a threat to offend
against a child? Recent research (Hernandez, 2006) suggests that there may be a correlation between those
who possess child pornography and those who are also “hands-on” contact offenders. One surprising study
of federal prisoners indicated that 85% of those in custody for possession of child pornography were also
“hands-on” molesters whose contact offenses had never been discovered.

Other professionals agree that there is a danger that possessors of unlawful images depicting the sexual
exploitation of minors could escalate and eventually offend against real children. Dr. Chris Hatcher, (1997)
Professor of Psychology at the University of California said, "It begins with fantasy, moves to gratification
through pornography, then voyeurism, and finally, to contact." Former FBI  profiler John Douglas (Mindhunter,
1995, p. 108) described the relationship between pornographic images  and sex offenders.  He said, "With
most sexually based killers, it is a several-step escalation from the fantasy to the reality, often fueled by
pornography, morbid experimentation on animals, and cruelty to peers."

Some possessors of unlawful images use the contraband as a "unique solution" to their pedophilic
preferences. They rationalize that sexually gratifying themselves after viewing images is a justifiable
alternative to committing "hands on" contact offenses against actual children.

Victims

What about the effect of child pornography on the victims? Are there any lingering problems for children who
are the subject of abuse?  Researchers found that the effects of unlawful images on child victims are often
devastating. According to Klain, Davies and Hicks (Child pornography, March 2001, p.10) child sex abuse
victims suffer a multitude of physical and psychological problems.

The innocent victims of child pornography sometimes suffer a lifetime of psychological anguish and torment  
wondering when where and how their tortured images will re-surface. Those who traffic in, possess and
derive  gratification from child pornography perpetuate the anguish.  Some argue that each image tacitly re-
victimizes the child whenever the image is viewed. Many victims of child pornography will never disclose their
victimization to anyone. They suffer in silent, haunted  purgatory.  As adults, many do not wish to relive past
abuse.

What is unlawful pornography?

Child pornography depicts the sexual exploitation of minors.  It does not include child erotica.

It does not include nudism and it does not include "baby in the bathtub" images.  Unlawful images are
contraband.  They are the only form of contraband that is introduced into the human psyche through  the sense
of sight.  Because unlawful images are now often produced in video form, the images are often accompanied
by the sounds of children suffering.

What are some of the differences between lawful and unlawful images?

A California court offered some insight into the differences between lawful nudism and unlawful images
depicting the sexual exploitation of minors.   An instructive set of guidelines for determining the differences
was provided in the case of United States v.  Dost, 636 F.  Supp.  828, 830-32 (S.D. Cal. 1986).

The Dost factors give a more defined test for determining whether a visual depiction of a minor is a "lascivious
exhibition of the genitals or pubic area".

The Dost factors include the following guidelines:

  1. whether the focal point of the visual depiction is on the child's genitalia or pubic area;
  2. whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally
    associated with sexual activity;
  3. whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the
    child;
  4. whether the child is fully or partially clothed, or nude;
  5. whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
  6.  whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

A case study

In 2003, former Arizona high school teacher Morton Berger was convicted on 20 counts of possession of child
pornography and sentenced to 200 years prison. He appealed the sentence based on arguments of equal
protection under the law and cruel and unusual punishment. In December 2004, the conviction was affirmed
by two of the three judges of the Arizona Court of Appeals (State of Arizona, 2004, December 14).

Judges Susan Ehrlich and Philip Hall dismissed Berger's appeal with arguments including (citations omitted):

  • It is evident beyond the need for elaboration that a State's interest in safeguarding the physical and
    psychological well-being of a minor is compelling.

  • . …the victimization of a child continues when that act is memorialized in an image. The materials  
    produced are a permanent record of the children's participation and the harm to the child is
    exacerbated by their circulation. Unfortunately, the victimization of the children involved does not end
    when the pornographer's camera is put away.

  • The legislative judgment…is that the use of children as subjects of pornographic materials is harmful
    to the physiological, emotional, and mental health of the child.

  • …the possession of child pornography drives that industry and…the production of child pornography  
    will decrease if those who possess the product are punished equally with those who produce it.

  • .  …it (the law) will decrease the production of child pornography if it penalizes those who possess and
    view the product, thereby decreasing demand.

  • …the possession of child pornography inflames the desires of child molesters, pedophiles and child
    pornographers. The State has more than a passing interest in forestalling the damage caused by child
    pornography: preventing harm to children is, without cavil, one of its most important interests.  

  • …we cannot fault the State for attempting to stamp out this vice at all levels in the distribution chain.

  • Berger downloaded images from the Internet, and every time he visited a website, he demonstrated to
    the producers and sellers of child pornography that there was a demand for their product. Berger's
    demand served to drive the industry; there need not have been a direct monetary exchange. Berger
    maintains also that, because his possession of the pornographic images was passive and because
    he did not use threats or violence in the commission of his crimes, his sentence is grossly
    disproportionate. This logic is abstruse. As was described by this court in Hazlett, 205 Ariz. at 527 p.
    11, 73 P. 3d at 1262, and as is evident from the violent pornographic images in this case, child
    pornography is a form of child abuse. The materials produced are a permanent record of the children's
    participation and the harm to the child is exacerbated by their circulation.

The U.S. Supreme court denied Morton Bergers next request for an appeal. His 200 year prison sentence was
upheld. Berger is scheduled for release from the Arizona Department of Corrections in 2157.

Law enforcement

Disturbing unlawful videos of the sexual abuse of minors are often accompanied by the horrible audio sounds
of suffering young victims. The typical offender arrested by the Arizona ICAC Task Force possesses dozens
and often hundreds of unlawful images and videos. As law enforcement officers, once we overcome the
sickening shock of witnessing the brutal recorded acts of terrible sexual violence we are left with a tenacious
resolve to bring offenders to justice. Efforts to eradicate the contraband images and videos depicting the
sexual suffering of minors must continue and offenders must be brought to justice.

Conclusion

Contraband images and  videos depicting the sexual exploitation of minors are serious crimes. Offenders use
the images for many disturbing reasons. The victims of child pornography deserve to be protected from their
torturers and from those who enjoy witnessing the torture. Law enforcement efforts to stop unlawful images
must continue.

References

Child pornography and pedophilia: Report made by the Permanent Subcommittee on Investigations of the
Committee  on Governmental Affairs, United States Senate. (1986).  99th Congress, Second session.
Washington: U.S. G.P.O.1986. iii. 54: 24 cm.

Douglas, J. and Olshaker, M. (1995). Mindhunter: Inside the FBI's elite serial crime unit, New York: Pocket
Books.

Hatcher, C. (1997, October). Cited in: Armagh, D. A. Safety net for the Internet: Protecting our children. Juvenile
Justice Journal (on-line) Volume V, Number 1, May 1998. Retrieved March 15, 2003. From http://ojjdp.ncjrs.
org/jjjournal/jjjournal598/net.html

Hernandez, A. E. (2006, September 26).  Statement of Andres E. Hernandez  before the Subcommittee on
Oversight and Investigations, Committee on Energy and Commerce. U.S. House of Representatives.
Retrieved October 20, 2007, from http://www.projectsafechildhood.gov/HernandezTestimonyCongress.pdf

Klain, E.J., Davies, H.J., & Hicks, M.A., (2001, March). Child Pornography: The criminal justice system
response, American Bar Association Center on Children and the Law for the National Center for Missing and
Exploited Children. Retrieved October 20, 2007, from http://www.missingkids. com/en_US/publications/NC81.
pdf

State of Arizona Division One Court of Appeals. (2004, December 14). Appeal from the Superior Court
inMaricopa County. 1 CA-CR 03-0243. Retrieved October 20, 2007, from http://www.cofad1.state.az.
us/opinionfiles/CR/CR030243.pdf

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Photographer publishes questionable images of her children

Dr. Frank Kardasz, August 15, 2008

An Arizona newspaper recently printed a controversial article about a photographer who publicizes pictures of
her own children posing nude.  The article included a chronology of dozens of nude images of the
photographers’ pre-pubescent children ranging in age from less than one year to ten years.  The children
were not posed in sexually suggestive positions and were not engaged in sex acts.  Although genitals were
visible in the pictures, the specific focuses of the images were not zoomed on the child’s genitals.  I have not
provided the name of the newspaper nor the name of the "artist" in order to protect the children who were
exploited.

The published images were probably not unlawful according to present United States Supreme Court
standards.  The Court might consider the images to be lawful pictures of nudity or art.  The images probably
did not violate the difficult-to-measure-and-enforce community obscenity standard.  The pictures might fall
outside the legal definitions of images depicting the sexual exploitation of minors.  The photographer appears
to be attempting to straddle the sometimes-confusing borderline between art and illegality, at the expense of
her children.

While barely lawful, some would consider the nude pictures of children to be erotica.  Erotica includes lawful
and non-pornographic items that may stimulate a sexual reaction from the viewer.

Those who would consider nude images of children to be sexually stimulating might include the ranks of
pedophiles and others who are sexually attracted to pre-pubescent minors.  Anyone who considers sharing
nude images of a child should consider that others may find their benign images sexually stimulating.

Those who consider photographing children nude and sharing the images should also know that doing so
may make the children the targets of those who will enjoy the images for sexual masturbatory purposes.

The same persons who sexually enjoy the images may also try to befriend the children depicted and ingratiate
themselves with the family for the predatory purpose of grooming the targeted children towards actual
molestation.

Predators may pose as admiring "fans" of the young model. They may pose as professional photographers
interested in advancing the modeling career of a young person: A young person who’s only protection from
harm are the same star-hungry parents who send them to the photographer-predator.  This does not mean
that all photographers are bad, only that parents must be vigilant.

Distributing and publishing erotic images of children also means that the pictures will likely be duplicated and
distributed throughout cyberspace.  That means that once the children depicted are old enough to knowingly
object to the pictures the images will already be irretrievable.  Once the child reaches middle school and is
confronted with the pictures by crass adolescent peers who found the pictures on the Internet, the subsequent
embarrassment will be irreversible.

Benign and innocent images may also be used for alteration or blending with other images for the purpose of
creating pornography.  For example, innocent images of the famous child twin actresses Kate and Ashley
Olsen have been duplicated, cropped, pasted and altered into sexual images for many years by deviants who
enjoy the altered pictures for sexual self-gratification and who then trade them via the Internet.  Deviants often
use software programs to cut the young faces from the Olsen twins and superimpose the images onto the
nude or sexually active bodies of others so that the deviants can imagine having sex with the young girls.

It is also likely that the images will become part of someone’s larger collection that includes unlawful images
depicting the sexual exploitation of minors.  For example, those who collect and enjoy unlawful images also
sometimes collect lawful images of erotica and nudism.  Some go so far as to collect newspaper
advertisements from retailers who sell children’s underwear or pajamas.  While there is nothing unlawful
about images of children in pajamas, those who derive sexual gratification from such images might be
considered by the psychology community as having pedophilic tendencies.

Unlawful images that depict the sexual exploitation of minors are often called child pornography.   Unlawful
images of child pornography are different from lawful adult pornography.  Unlawful images should not be
confused with lawful art, nudism, medical images or erotica.  The exact legal lines and definitions are often
blurry and confusing to the average person.

The photographer who took nude pictures of her children under the legal umbrella protections of “art” should
consider the wider ramifications of sharing the images.   Ramifications include the way in which others will
perceive the images and the future possible uses of the images by persons with sexually deviant motives.  
The barely-legal exploitation of children displayed in the newspaper article is disturbing.
Victim Impact Statement
az icac
Internet Crimes Against Children