Child Pornography, Legal v. Illegal?

June 4, 2008 by David S. Seltzer

Determining what to charge and what is legal is never easy. Ask 10 people to opine on the same image, chances are good you will get multiple perspectives; question is which one is right?

The definition of teens, according to www.dictionary.com, is defined as the numbers 13 through 19. Furthermore, under the law, the legal definition of a minor is anyone 17 years and younger. Therefore, “teen,” even though it includes minors, it also includes LEGAL adults. So how does one avoid the obvious trap of being caught with child pornography when the site is advertising “legal teens,” or “barely legal?” In either instance, the site purports to depict what they are telling you is legal, so who is at fault when the police come knocking and the image “appears” to be a minor?

It is very deceptive to those who search the internet with no intentions of breaking the law, and then one day find themselves on a teen website with images of women, who may or may not be legal. It is unfortunate that there is no set in stone method of determining what constitutes a “minor” and what is legal. The standard in determining whether or not to charge a suspected image of child pornography lays solely in the prosecutors hands. It’s called prosecutorial discretion, and means watch out, as each prosecutor will have a different opinion. In some cases it is really too close to call, and then you would hope that the prosecutor doesn’t take the “let’s roll the dice” approach.

Factors used to determine whether or not a minor is in fact a minor are the size of limbs, body hair and/or pubic hair, facial features, breast size, and genitals, to name a few. Most often prosecutors will employ the services of a licensed doctor to opine as to the age of the child. However, it doesn’t end there. The prosecution still needs to prove the image is real and not virtual (a discussion for a different day).

Back to the topic at hand, how do you know if you are looking at legal pornography or child pornography? The short answer is you don’t know. However, I believe there is a strong argument to be made not only on the above factors that the prosecution uses in making their filing decisions, but also in the website itself. Sites that advertise “barely legal teens,” are telling you the viewer that you are looking at images that will not get you arrested. The problem is accountability. Most of the websites that post these images are not based in the United States, and therefore, it is often very difficult to prove the age of the child, and the factors above may be the only way. Question is, do you want to rely on someone else’s discretion?

The “too close to call” category of images is something most prosecutors shy away from, but there are those overzealous ones that will charge anything, and see what sticks. For further discussion or information on this matter, please feel free to contact me, as I am sure this debate will continue...