Miami Criminal Attorney on Cyber Crime: Child Pornography v. Child Erotica

August 28, 2008 by David S. Seltzer

The Supreme Court of the United States has “drawn the line in the sand” about what is and is not child pornography. See Ashcroft v. Free Speech Coalition. So is taking pictures of your children in the bathtub, or them running around the house naked child pornography? Having been a prosecutor in Miami and dealing with cyber crimes/child pornography, and now a criminal defense lawyer, it is simply something you cannot explain. You know child pornography when you see it. Art is still art, and there is nothing illegal about taking pictures of children clothed, or nude. The question you have to ask yourself when determining if the image is child pornography is, what is the focus of the image? Is the purpose of the image sexual in nature? Does the image focus on a certain part of the minor’s body? The list goes on from there as to what factor government officials use in determining what is and is not child pornography.

That being said, images that don’t fall under child pornography may fall under the category of child erotica. Child erotica is not illegal to possess. However, it is often times difficult and open to many varying degrees of interpretation as to whether something qualifies as child pornography or child erotica. Furthermore, depending on your State laws and the position of the US Attorney in your State, possession of child erotica may be a crime.

In a recent article published by an affiliate of the Miami New Times, the author published images of her children in various stages of undress. (See Newspapers nude child photos draw police review). Now let me state that I have not seen the images, but from what I gather, the focus was no sexual in nature, rather artistic. So why the uproar? It is an election year and politicians can’t be seen as soft on any type of crime that may involve minors. The courts have settled the issue, however, like anything else dealing with the law it will be continually debated for years to come. But again, child pornography is just something you know when you see it, and unfortunately leaves a lot open for interpretation. So ladies and gentleman, the moral of the story is keep your family photos to yourself!