Child Pornography...

Are there any lines to be drawn in the sand as to what constitutes child pornography? It would seem that for some the definition is clear and for others the definition is less than clear. In fact, the definition can be interpreted in any old fashion that may be required for the purpose of an arrest and a subsequent prosecution.

For example, is the possession of photographs of a child in a swimming costume playing in a pool or riding in that same swimming costume in the back of a truck or sitting on a relative's lap a case of being in possession of child pornography? Would it make any difference if that child was a relative of the person in possession of that photograph. Perhaps even more personal, if I am in possession of a photograph of my son swimming naked in the pool, am I in possession of child pornography? Would it make any difference if I then placed that photograph on my blog or used it as a screen saver on my computer?

These are important questions for many reasons. Personally, I find child pornography abhorrent and do not condone its production or distribution. However, I cannot reconcile that me having a photograph of my own son swimming naked in my pool is child pornography. I also cannot reconcile that placing that photograph on my blog would be tantamount to disseminating or distributing child pornography online. I appreciate that there are evil people out there who might get some degree of cheap sexual pleasure from the photograph, but should that mean my posting of the photograph or even having it in the first place be considered as being in possession of child porn?

The idea that any image of a naked child is child pornography means that there is no artistic merit exception for artists that produce images of naked children. I am not an artist and therefore cannot give an adequate answer as to the artistic need for such images, but I believe that artists can make a case for the need for such an exception. The furore that erupted over images produced by Bill Henson last year is an example of do we need to draw lines in the sand, and if we do, then where do we draw them?

An interesting case has arisen in the US military where a National Guard soldier has been found in possession of images of a child, his four-year-old relative in a swimming costume. The images were sent to him by his mother as an attempt to relieve some of his homesickness associated with being posted on a tour of duty in Afghanistan. The US Army brass has decided to purse an investigation of the images with a view to a court martial. The penalty under US Army law is potentially a ten-year jail term. The rest of the soldier's unit has already returned back to the US after their tour of duty.

If this case is as simple as this soldier having a couple of images of a four-year-old relative in a swimming costume, then the US Army is wasting its time. Simply, it is making mountains out of molehills. By all accounts the images found by the US Army do not include any naked images. The closest you have to a porn image is a partially exposed buttocks (apparently still in a swimming costume).

The definition of what constitutes child pornography is going to have to be very tight. And, there will need to be consideration given to intent. There simply must be a mens rea component to the charge. If there is not a mens rea component then any image of a child may give rise to a possible child pornography charge. Seriously, is a shot of a young girl in a pose for a beauty pageant to be considered sexual or seductive?

The mind boggles as to where this can lead.

Although this post might lend itself to a photograph or two, I am not posting any...a silent protest (sort of).

Transgender and Sex Discrimination

It is always interesting to see how judges interpret laws and whether these interpretations expand the intent of the original law or restrict it.

There are always critics who voice their concerns when it appears that judges are making law rather than interpreting it.

A recent case involving a transgendered woman, who was a highly decorated soldier as a man, and the Library of Congress in the US. Diane Schroer was offered a position at the Library of Congress as terrorism research analyst when she was a man. This job offer was then revoked when the Library of Congress found out that David Schroer was in a period of transition from being a man and becoming a woman.

Schroer was qualified for the position, of that there seems little dispute, and had in fact been the highest rated candidate for the position. Her experience included being a special forces commander in the US Army and commanding a 120 person unit tasked with tracking terrorists.

She retired in 2004 and ultimately ended up applying for the position at the Library of Congress.

The American Civil Liberties Union took up the case and filed it in Federal Court. The suit alleged discrimination and relied upon the Civil Rights Act and in particular the provisions on sex discrimination.

The ruling of the judge pointed to direct evidence that the Library of Congress had based their hiring decision on sex stereotypes. The stereotypes here were that the Library of Congress felt that Schroer would be less capable of performing her duties as a woman than she would have if she had stayed a man. Although the testimony given in court was that the Library was worried that they would not be able to get a security clearance for Schroer in time.

The judge then went on to compare a situation where a person is denied employment because they are in the transitioning period from one religion to another.

Yet, and perhaps more importantly, this decision says that the laws as they relate to sex discrimination covers individuals who are transgendered and it also covers them during the period of transition.

I do not think that the decision expands the intent but rather clarifies that intent. It would be a difficult argument to sustain that the government's intent was to exclude people from the protections of the sex discrimination clauses in the Act.

Now that the judge has ruled in Schroer's favor the only question that remains is how should she be compensated for the discrimination that she has suffered.

When the damages award is made (assuming one will be made) I will post a postscript to this story.