Media

Grandmother Charged for Child Pornography Now Suing

| by Reason Foundation

Back in 2005,
a WalMart worker in Pennsylvania reported 59-year-old Donna Dull to
local authorities after Dull dropped off some film that included shots
of her three-year-old granddaughter in and just out of the bath. Dull
was arrested—roughly, she says—and charged with producing and
distributing child pornography.

The charges were dropped 15 months
later when a Pennsylvania special prosecutor overruled the local DA.
Only Dull, her attorney, and police and prosecutors have apparently
seen the photos, which are now under seal. She's now suing.

In this follow-up article from the York Daily Record,
state officials seem to be trying to reassure parents and grandparents
that they have nothing to worry about—that you needn't fret about
having your life ruined and reputation destroyed by false child porn
charges for taking nude pictures of your infant or toddler. Problem is,
their reassurances aren't very convincing.

Christopher Moore, a special prosecutor in the York County District Attorney's Office, is after "perverts, not parents." Moore
was commenting on the "gray area" between the typical family picture of
the 2-year-old getting a bath in the kitchen sink and a picture a
pedophile may enjoy. It can be the same picture, Moore said. But, Moore added, that is not a reason for parents and grandparents to avoid taking those pictures... "It's not what the (child protection) law was designed for. Your rights are not restricted in any form by the law."

But
it appears that's precisely what Dull was arrested for. And the DA in
Dull's case insists he was right. Or at least he's pretty sure he was:

[District
Attorney] Rebert said in Dull's case, "What made them offensive was
their graphic nature. A little girl with her bare butt showing, kind of
looking over her shoulder. "It's a difficult distinction to make. What's a cute butt and what's pornographic? "I
think what she (Dull) did was stupid and in very poor judgment. It was
an interesting case and I think we did the right thing."

So because the photo could
have been interpreted as pornographic by someone who was looking for
child porn, arresting the woman and ruining her life (or at least
severely disrupting it) was the "right thing" to do. From the
description, we aren't talking about splayed legs or exposed genitalia,
here.

It's a kid's butt, and a playful peer over the shoulder. I'm glad
Special Prosecutor Moore overruled District Attorney Rebert, but that
Dull was arrested in the first place puts the lie to Moore's assertion
that this sort of hysteria "is not a reason for parents and
grandparents to avoid taking those pictures." It most certainly is.

Or
at least getting them printed somewhere outside your home. Unless you
consider an arrest and 15 months under the label of "accused child
pornographer" to be harmless. It only gets more confusing from there. Here's the prosecutor who initially approved the charges against Dull:

David Cook, now in private practice . . . declined to say if he disagreed with Rebert's decision to dismiss the charges. He
did say, "There was no legitimate purpose for those photographs. I
would never pose my daughter or my step-daughter like that. "It kind of boils down to a gut feeling. If it feels wrong, it probably is."

That
sounds . . . ambiguous. How are Pennsylvania residents supposed to
follow the law if the state's prosecutors can't even agree on its
application? Here, once again, is Special Prosecutor Moore, again trying to alleviate fears of parents, and again coming up short:

"It's
a subjective versus objective standard," Moore said. "You think it's
cute. Someone else might think different. That doesn't make it a crime. "Lots of sexual offenders use the Sears catalog to get off. That doesn't make (the catalog) illegal. It's a reasonable person standard with the reasonable person being a juror," Boyles said.

"And reasonable people can disagree," Moore said. "That's the gray area. That's when it comes to us." Boyles and Moore also agreed that parents don't need to worry unnecessarily. "Family pictures are family pictures," Boyles said. "But if more of your pictures of your kids are of them naked rather than clothed, you might have a problem."

So
in sum, if you don't want to get arrested and charged for taking nude
photos of your infant or toddler, make sure you know what criteria your
local prosecutor uses when navigating that "gray area" between a cute
butt and a criminally alluring one (note: you probably don't want to
actually pose this question to him).

Also, if you find yourself under
investigation after dropping off a roll of film at the CVS, you might
want to bake the prosecutor some cookies, since it appears that his
"gut" will be the final arbiter of whether you're a doting parent or an
accused child pornographer.

Finally, even if the nude photos
you've taken of your kids pass the clear-as-mud "cute butt," "gut
feeling," and "reasonable people can disagree/that's when it comes to
us" tests, and are deemed innocent as a basket of puppies, you could
still be in violation of the law if the state determines that the
clothed to unclothed-but-innocent ratio in your family photo albums is
inappropriate.

Got all that? Good. Because they promise, you really have nothing to worry about.