Bath Photos & Wal-Mart: What is Child Pornography? - FindLaw Blotter
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Bath Photos & Wal-Mart: What is Child Pornography?

An Arizona couple had to regain custody of their children after Wal-Mart employees and local authorities deemed their bath time photos child pornography. Their horror story has many wondering: what exactly constitutes child pornography?

As the Arizona Republic reports, the three girls of Lisa and Anthony Demaree were 5, 4 and 1 and a half years old when 8 photos of the kids in the bathtub and playing were amongst 144 vacation photos the family took to Wal-Mart for processing.

There begins the family's nightmare, which they recounted to Good Morning America. To summarize, they lost their kids for a month, were put on the sex offender registry and Lisa Demaree was suspended from her school job.

They've sued Arizona for allegedly slandering them, particularly through claims investigators allegedly made to the couples' family and friends that they sexually abused their kids by taking pornographic pictures of them. They've also sued Wal-Mart over its "unsuitable print policy."

So, how is child pornography defined?

Under federal law, child pornography means "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct."

Though many acts are obviously sexually explicit, "sexually explicit conduct" under federal law also includes "lascivious exhibition of the genitals or pubic area of any person." Federal court have identified some factors to help decide whether genitals in particular images constitute a lascivious exhibition. These factors include:

  • Whether the genitals or pubic area are the image's focal point;
  • Whether the setting is sexually suggestive;
  • Whether the child is depicted in an unnatural pose or age-inappropriate attire;
  • Whether the subject is nude, partially or fully clothed;
  • Whether the image suggests a willingness to engage in sexual activity; and
  • Whether the image is intended to elicit a sexual response in the viewer.

These are highly case specific questions which cannot provide clear lines for all pictures.

States also have related charges to punish child pornographers. Under Arizona law, someone commits sexual exploitation of a minor if they knowingly record, film, photograph, develop or duplicate any visual depiction in which a minor is "engaged in exploitive exhibition or other sexual conduct."

The Demaree's were not charged with any crime and did get their children back.

As you can see, developing or duplicating images that constitute child pornography can bring liability onto a photo shop in Arizona (if they reproduce the images knowing their sexually exploitive contents).

It seems extremely unlikely, however, that Wal-Mart would face liability for developing the Demaree family photos. It could, on the other hand, be a case of corporate policy run amuck. While attempting to insulate itself from liability and prevent dissemination of child pornography, it appears that both Wal-Mart and Arizona state investigators may have allowed subjective (and some might say puritanically paranoid) impressions of family photos to completely disrupt the lives of the Demaree parents and children.