Common Sense in a “Kiddie Porn” Case

Readers — How I love the ruling this judge made. So unhysterical. So human — note the passage I put in boldface. So why wasn’t the prosecutor as wise?

U.S. Supreme Court Justice Potter Stewart famously said that while he couldn’t define pornography, he knew it when he saw it.

Brooklyn Family Court Judge Steven Mostofsky (See Profile) suggested in a recent decision that he knows what’s not pornography when he sees it, and the images a camera-ready Brooklyn mother took of her kids are neither lewd nor obscene. Rather, Mostofsky said, they are the product of a mom who is perhaps a little too eager to capture the family’s Kodak moments.

“Any parent knows that you cannot raise a child without making a mistake in judgment from time to time,” Mostofsky wrote in Matter of CW, NN-02628-6/13. “And unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family life.”

The case began when a man lost his BlackBerry last April.

The person who found it noticed that there were numerous photographs of naked children and turned it into police. That resulted in a bench warrant, an investigation by the Brooklyn district attorney and the removal of four children, ranging in age from 7 to 1 based on allegations that the parents had promoted a sexual performance by a child and possessed obscene images.

I can’t believe the children were removed from this family when it sounds like anyone looking at the photos could see them for what they were: a proud parents’ pictures. And I’m sorry I only learned of this case recently. It took place in December.

Thank goodness for a sensible, sensitive, real-world  judge. One big tenet of Free-Range Kids is that just because parents do something that YOU wouldn’t do, doesn’t mean it should be illegal unless it truly harms the child. What’s more — as the judge said —  no parent is perfect, so to make sub-optimal parenting illegal is to make EVERY parent a potential criminal. 

Read the rest of the story  here (although I am having a hard time seeing it without signing up for the law journal). – L

gavel

 

 

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26 Responses to Common Sense in a “Kiddie Porn” Case

  1. washington irving June 3, 2014 at 2:08 pm #

    What I don’t get is this:
    You find a phone lying around. You can do one of two things: keep it and reformat it and use it (yay! free phone) or get an address out of it and mail it (yay! good samaritan). Who goes in and looks at the pictures on the phone? Did this person also read all the emails? Check the text messages? Who’s going to give this “person” a lesson in basic etiquette?

  2. AmyO June 3, 2014 at 2:35 pm #

    What is disturbing is that the person who found the phone immediately assumed child porn, and not a family of kids. I’m assuming the same kids were in each picture, and probably all looked like each other, and were in other clothed pictures..? I have so many pictures of my daughter’s first bath that I would probably end up with a bench warrant too. This is beyond bizarre.

  3. nina June 3, 2014 at 2:36 pm #

    I think a lot of it is cultural. I grew up in Europe and it was a norm to let kids run around naked at the beach until they were about 3 or 4 year old. Girls were not expect to wear tops of their bathing suit until they began to show breast development. I think I got my first real bathing suit when I was about 9 or 10. I’m pretty sure my parents still have pictures from family vacations dating back when I was a kid. Should I tell them to destroy family memories just in case no one accuses them of possession of inappropriate materials? My 4 your old daughter loves to run around naked and I have to keep telling her to go put something on. Sometimes she listens and sometimes I have to chase her around our backyard with a dress. My older sons didn’t get any self awareness until ages 6 or 7. I don’t take any naked pictures, but sometimes I wish it would be culturally acceptable. Some pictures would have been priceless.

  4. Sara June 3, 2014 at 3:03 pm #

    AmyO, my kids look nothing like each other (especially the two oldest) so that’s not really something to judge on. But yes, I agree – why would somebody immediately think “Child porn”?

    wshington irving, exactly! I found a phone on a playground last summer, so I went through the contacts, phoned someone (turned out to be the owner’s niece), she gave me the address and I dropped it off. End of story. That’s how you handle finding somebody else’s property, not by going through their personal stuff.

  5. Gina June 3, 2014 at 3:13 pm #

    My kids (raised right here in the good old USA) were permitted to run around naked at home and in our yard until THEY weren’t comfortable. I must have pics somewhere that could put me in jail! We are sexualizing our young children by trying to prevent them from being sexualized..how ironic!

  6. Amanda Matthews June 3, 2014 at 3:58 pm #

    @washington irving if I found a phone near my house I would look through the pictures to see if I knew the people.

    But if I saw pictures of naked children on there, I would assume it was the owner’s children – and put the phone right back where I found it for fear that *I* would get in trouble for child porn possession. They aren’t my kids, so I don’t have any excuse for having those pictures in my hand.

    Anyway… I’m not sure what correctable mistake was made here (and I can’t view the full article without signing up, which I’m not going to do). Is it really a mistake to take/save pictures of your children on your own personal device?

  7. Jenny Islander June 3, 2014 at 4:06 pm #

    @Gina: Exactly. Or, as has been observed, the “purity culture” invented by modern U.S. fundamentalist Christians, ostensibly in order to keep girls and women safe, has the side effect of injecting sex into every minute of every day. When you start adjusting the clothing of three-year-old children so that they won’t “defraud” (puke) people who look at them, you are adding sex to the situation.

  8. Rachel @ Wife, Then Mama June 3, 2014 at 4:51 pm #

    I consider myself to be a fundamentalist Christian, but I see no problem with little kids being naked. If I had a fence they (1 and 2 year olds) would probably be outside in their birthday suits playing in the pool all summer.

  9. Dark Space June 3, 2014 at 4:54 pm #

    To those who think it is odd that the finder of the phone looked through the pictures… I’m guessing most people would let curiosity get the better of them in the same situation.

    My father had a naked picture of me as a kid on his desk until I was 35. It was the first thing you saw when you walked into our local bank for almost 2 decades. The entire town has seen me naked. Anyone that could look at the pictures described and think they’re pornography are exactly the people we need to protect our kids from – someone needs to investigate the person who found the camera and the prosecutor, something is wrong with them and I’m guessing they have troves of actual kiddie porn on their computers.

  10. forsythia June 3, 2014 at 4:59 pm #

    Yet prosecutors in this same state did not prosecute parents who failed to heed mandatory evacuation orders during Superstorm Sandy, and their kids died or were harmed because they ignored those orders.

  11. Matthew June 3, 2014 at 5:17 pm #

    And this is why I keep my phone locked, with just a couple numbers that can be called without unlocking it.

  12. John June 3, 2014 at 5:32 pm #

    A huge kudos goes to this Judge for using common sense! I’m sure the pedophile patrol we have here in the United States will be outraged. This case sure is a contrast of that involving the head football coach at Mankado State University in Minnesota. He had naked pictures of his young kids on his cell phone and was actually arrested for the possession of child pornography and spent time in jail for it. Finally a Judge acquitted him of the charge but he still was fired from his job because of the charge. It was right after the Penn State fiasco and the school over reacted and decided to fire him. The whole mess had the poor guy in tears. It was absolutely inexcusable for that man to have spent one minute in jail!

  13. J- June 3, 2014 at 5:33 pm #

    “unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family life.” This is the wisest thing I have ever heard out of a jurist’s mouth since I read the works of William Blackstone.

    Especially surprising since he is from the nannyist of nanny states, NY.

    I remember having a lawyer paraphrase Justice Stewarts opinion as: “Pornography is whatever gives a judge an erection.” If that is true, I think this judge might be trustworthy around kids.

  14. Erin June 3, 2014 at 7:20 pm #

    Really? Someone is blaming this on fundamentalist Christians??

    I find it ironic that our culture as a whole encourages “sexy” kids (think of all the inappropriate clothing for girls out there!) and then prosecutes those same children (and families too). Pick a side!!

  15. Montreal Dad June 3, 2014 at 7:21 pm #

    Preach it, forsythia!

  16. Gina June 3, 2014 at 8:50 pm #

    @Erin: I don’t think that’s fair. I allowed my girls (and boys) to dress any way they wanted. I told them what their outfits might imply, but I also told them that NOBODY had the right to touch them no matter what they wear or don’t wear, unless they wanted to be touched. Little girls with short shirts don’t create molesters; pedophiles are inherently pedophiles. Blaming the culture is taking the responsibility off the offender. If she (2 years old or 22 or 42 years old) says “no”, it’s rape. Even if she is wearing revealing clothing…even if she is naked. It is never the fault of the victim. That’s why I hate the dress codes in high school. Don’t you dare tell me that it is the responsibility of my daughter to dress in a way that doesn’t distract your son. This all perpetuates the idea that girls/women are the cause of sexual predation.

  17. Wendy W June 3, 2014 at 11:38 pm #

    Unfortunately, prosecuting people for this particular non-crime is not a new thing. Twenty years ago we heard of a neighbor of a friend who was arrested for child porn. The “infraction”? Professional baby photos on the wall that showed a naked baby sitting in an old-fashioned washtub. Probably wasn’t really naked anyway since the diaper wouldn’t have shown above the edge of the tub. The cop saw them only because another neighbor had called them due a “domestic disturbance” they overheard. Never did hear the outcome of that one, but I sure hope someone had enough brains to drop the charges.

  18. J.T. Wenting June 4, 2014 at 5:38 am #

    “Really? Someone is blaming this on fundamentalist Christians?? ”

    A lot of the morality police are radical Christians (and Muslims, but they’re less common in most of the US).
    Combine that with control freakish people in all walks of life grabbing on to any opportunity to play havoc with other peoples’ lives, and you’ve a dangerous cocktail of religion, politics, and “morals”.

    It wasn’t long ago that it was considered “immoral” for a man to walk the street without a hat, for a woman without a full length skirt and bodice, a veil, and a scarf or hat to cover her hair.
    This was the result of Christian morality preaching being turned into law, same as in Arabia and Iran religious “morality” has been turned into law requiring the local equivalent there still.

    In such a climate, is it any surprise that hearing/noticing parents allow their children to be naked even within their own home and garden is considered “wrong”, even criminal?

  19. J.T. Wenting June 4, 2014 at 5:43 am #

    “Little girls with short shirts don’t create molesters; pedophiles are inherently pedophiles. Blaming the culture is taking the responsibility off the offender. If she (2 years old or 22 or 42 years old) says “no”, it’s rape. Even if she is wearing revealing clothing…even if she is naked. It is never the fault of the victim. That’s why I hate the dress codes in high school. Don’t you dare tell me that it is the responsibility of my daughter to dress in a way that doesn’t distract your son. ”

    Well said. And it gets worse: the more you force people to hide their bodies in order to not arouse others, the more you cause just that, people getting sexually aroused by seeing any sliver of a body whatsoever.
    So this prudish attitude, dress codes, “public decency laws” banning “revealing clothing” and nudity only create a society in which people get tempted into becoming sexual predators.
    The sight of a bare foot or ankle suddenly becomes to people with little self control an irresistible urge, an invitation to rape that other person.
    A lock of hair showing under a scarf or hat starts to be interpreted as a sign of sexual promiscuity.

    And that’s where our society is heading head long.

  20. Omer Golan-Joel June 4, 2014 at 11:52 am #

    A question: were the evidence even admissible? I mean, someone searched a person’s cellphone without warrant, without permission and without even being an officer of the law. Isn’t that a breach of the owner’s right to privacy?

    This is police-state stuff: now everyone’s a spy for the police.

  21. Gina June 4, 2014 at 1:14 pm #

    @JT..thank you for the support. But something you said concerns me…do you think that everybody is capable of being a sexual predator depending on how we view sexuality?

  22. SOA June 4, 2014 at 4:05 pm #

    So what kind of pictures were they exactly? Just the kids running around the house naked or in the bathtub?

  23. J.T. Wenting June 4, 2014 at 4:38 pm #

    @Gina yes, depending on what’s considered sexual predation…
    It’s now come to the point where offering a woman your hand to help her out a car can be interpreted as sexual assault.
    Men have been arrested for “date rape” for kissing their girlfriend who later got angry at them and decided to get even.

    Do I think any person can become an actual rapist, depending on circumstances?
    Maybe. If conditions are severe enough, I don’t know what would happen. Think a single woman introduced into an environment in which a large group of men have been alone with themselves and a stash of pictures of women for months…
    And entire societies have been conditioned to believe that rape isn’t wrong, that if you have the urge to have sex with a woman, she must have been asking for it, therefore she’s a promiscuous slut, and thus you can do with her what you want. In such a society, over time, yes, any man would be liable to become a sexual predator, there’d be nothing to tell him he should not be one, in fact it’d be expected of him to be one.
    In such an environment, rape becomes the norm, it becomes the de facto way to relate to women.
    The massive increase in rape cases in Scandinavia in recent years can be traced back directly to the rapid increase in Muslim immigrants from areas where such is the case for example, Iran, Syria, Morocco, etc.

  24. Gina June 4, 2014 at 6:13 pm #

    @JT…OK…now I understand. Thank you for the clarification. You mentioned another thing that I cringe about. When a man makes a comment, or helps a woman by taking her hand, etc…I don’t think it should be considered “assault” unless the woman says “don’t” and the man continues….These cases of “harrasment” in the workplace because a man complimented a woman’s clothing or asked for a date..ridiculous. Harrasment is only after you’ve been asked to stop and you don’t.
    Our society is really losing its perspective and it frightens me. I have three sons and I worry for them all the time. It’s insanity.

  25. Kaetlyn June 5, 2014 at 5:52 pm #

    This makes my heart sing: “Any parent knows that you cannot raise a child without making a mistake in judgment from time to time,” Mostofsky wrote in Matter of CW, NN-02628-6/13. “And unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family life.”

  26. Jill June 10, 2014 at 12:23 pm #

    When he was a child, my husband lived in Brooklyn. In the brownstone next door there lived a family with two children who were around my husband’s age. He went over there one day to play with them, and noticed an oil painting hanging on one wall of the entire family, standing there smiling happily, naked as jaybirds.
    This was in the 1970s, and the presence of the portrait elicited mild comments from my in-laws that perhaps the neighbors were hippies or nudists, but that’s as far as it went. The police weren’t called, CPS wasn’t notified, the neighbors didn’t storm the house, armed with blazing torches, demanding that the parents be punished. Life went on. I miss the 1970s. Life was more reasonable back then.