otto117's observations

LDP (Japan), under ECPAT Guidance, Proposes Lolicon Ban Again

2011-10-18T17:50:00.000-07:00

The Liberal Democratic Party of Japan (LDP), Japan's strongest right-wing political party, has once again again introduced legislation to criminalize the possession of “child pornography” And once again it is trying to sweep manga, anime and other fictional representations into the category of prohibited material, reports Sankaku Complex.

Last December, the LDP, with support from Shin Komeito, the authoritarian rightist party, and the DPJ, the ruling centre-left party, DPJ, was successful in passing a law within Tokyo metropolis prohibiting the sale to minors of any cartoons which “improperly glorifies or promotes illegal sexual activity.” According to Sankaku Complex, the definition has been narrowed for the time being to apply to “works depicting women enjoying being raped or incest as being fun,” but it is widely expected throughout the industry that it will eventually include all sexual activity of cartoon characters described as being under the age of 18.

Although the “Tokyo ban,” as the law came to be known, did not actually prevent anything from being published, the effect of the law is the same. By forcing mainstream, non-adult manga into adult sections, the Tokyo ban essentially kills the market for that material. This is because the mainstream titles are aimed at adolescents as well as young adults, the shops are unlikely to stock manga that isn't completely hardcore in their adult sections and many stores simply don't have an adult section. Publishers were well aware of the effect the law would have and didn't wait until July (2011), the effective date of the law, to act. As the Sankaku Complex has reported, some publishers cancelled publication plans for material they feared might be segregated under the ban or instructed their artists not to depict any cartoon character as being less than 18 years of age or engaged in rape or incest. (See Sankaku Complex reports for December 13, 2010, and April 22, May 17, and July 1, 2011.)

To be sure, the Tokyo ban left the “lolicon” genre, aimed at adults, completely unmolested. Lolicon works are already segregated into adults-only areas. Lolicon is the target of the new proposal. The road will not be easy for the LDP, however. Prior to the passage of the Tokyo ban last December, the DPJ consistently blocked attempts to criminalize the possession of child pornography (defined as pornographic images of children, not pornographic fantasies in cartoons and drawings) as contrary to civil liberties and resisted including cartoons under the definition of child pornography. It may be for this reason that the DPJ rejected a previous version of the Tokyo ban which targeted “virtual” sexual conduct with minors, but ended up accepting the potentially much broader phrase, “promoting illegal or immoral sexual activity,” that is in the bill as passed.

If that was the DPJ's motive, then the party has properly analyzed the methods of the propagandists who cry “virtual child pornography” when they see fictional creations, knowing that people will only hear the "child pornography” part and accept virtually any restriction on it. (Think of how often Western propagandists claim that "virtual child pornography” looks just like the real thing and may even BE the real thing.) Undoubtedly they are aware that the LDP has taken up the agenda of ECPAT, a moral crusading organization which embodies the worst tendencies of the religious right and social purity feminists to manipulate governments into censoring what they don't like. ECPAT's propaganda about Japan states that

Japanese law on child pornography is not in line with international legal standards. The most serious problem is that Japanese law fails to punish virtual child pornography and the simple possession of child pornography (possession without intention to distribute).

(Source: ECPAT, “Global monitoring. status of action against commercial sexual exploitation of children,” 2d edition, 2011, p. 26/Japan)

However, the first part of of ECPAT's claim – that Japan's failure to ban “virtual child pornography” flouts international standards – is a pure lie. ECPAT says that such a ban is required by the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (“OPSC”), signed (according to ECPAT) by 143 countries. (The OPSC is part of the Convention on the Rights of the Child (“CRC”), but since it is “optional” it needs to be signed separately. According to ECPAT, 193 countries have ratified the CRC.) The OPSC, however, contains only this definition of child pornography in Article 2(c):

Child pornography means any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.

Nothing there suggests that cartoons qualify, since a cartoon character is not a child. ECPAT, however, makes no such distinction, but refers to cartoons (manga, anime and games) as “child abuse materials” and “child sex abuse materials” and “virtual child pornography” – a perfect slide to mislead people into believing that children are being harmed. ECPAT claims that it is “a key player in addressing child sex abuse materials,” i.e., attempts to ban manga, and the LDP is their tool. (ECPAT also lies in their Annual Report for 2010 about what it is advocating in Japan, claiming that it is only pushing for the OPSC definition.)

What ECPAT and other moral crusaders refuse to accept is that there is no reason to ban cartoons of any kind. (Of course they refuse to accept it: moral crusading and policing are big business. If you were going to earn money that way, you would want to make the scope of the targeted materials as broad as possible.) Creating child pornography is banned everywhere because (ostensibly) it involves the sexual misuse of minors. (Let's stop calling 17-year-olds “children,” shall we?) The arguments used by the cartoon censors are threefold: (1) that the material could be used to seduce children, (2) that the material causes people to go out and have sex with children, and (3) (the most bizarre claim of all) that by violating cartoon figures, the material violates the human rights of children. For the first claim there is no evidence at all and, in any event, alcohol, adult pornography and money will always provide far greater incentives to minors to engage in illicit sex. As for reason number two, there is no known causal link between looking at cartoons and having sex with minors. For that matter, there isn't even a causal link between looking at child pornography and having sex with minors. The third claim is based on an intentional misconstruction of human rights – one that puts thought control above the human rights of people to create and enjoy artistic expression of whatever they see fit without any concrete harm to others. Why thought control? The cartoon of a fictional child being raped is alleged to be an affront to “all children,” violating the “right” of the child not to be thought about as a sexual object. Or maybe it's that those who embrace the “human rights” argument know from reading Pinnocchio that cartoon figures and the like can come to life, and so violating a cartoon child who possesses that latent possibility violates its rights as a future living being. Of course all these reasons are just excuses, attempts to hide the real motive for banning cartoon child sex: the “ICK” factor. Cartoons of underage characters having sex or being raped and abused? Ick. Let's ban it.

In the meantime, lolicon grows and grows (although not like Pinnocchio's nose, based on lies). It grows because there are hundreds of artists who find expression in lolicon fantasies and an uncountable number of people who enjoy those artists' creations, legions of otaku who keep those fantasies to themselves. Indeed, one might well argue that the depictions in lolicon are so outlandish, unrealistic, outrageous or a combination thereof, that there is really very little similarity to real life. In lolicon, art doesn't imitate life, nor does life imitate art.

A note on the artwork: from the top, the artists are Fractal Underground Studio, Slip Bounds, Hikari Hayashibara (Momonga Club) and Sakuyoshi Makoto. The first 2 were found on PIXIV; the Hayashibara is from a compilation of her work published in Japan in 2008 and now sold as a download; and the Makoto is from a color graphics (CG) set available for purchase online. All artists portray hard core sex, none of which is portrayed here. These images are legal under U.S. law because they don't fit the definition of "sexual conduct" in Miller v. California (the case that defines what "obscenity" is).

Dress-Up Gets Knickers in a Twist

2011-08-28T14:19:00.000-07:00

As anyone who pays even the slightest attention to the mainstream media knows, the public hunger for media frenzy surrounding images of minors is insatiable. The latest is the outpouring of moronic moralizing over photos of 10-year-old Thylane Loubry Blondeau in the pages of Vogue. Yanks and Brits, in particular, love wringing their hands over this type of thing, moaning about the "sexualization of young girls" as if girls are having something imposed on them. (See., e.g., Good Morning American's story and comments at the Huffington Post.) The truth is that if you put a pretty girl in front of the camera and let her pose, she is going to strike poses that people find "sexy" because girls are human and sexual behavior is innate in humans (as it is in all living things that exhibit sexual behavior during their life cycles). Moreover, she is going to enjoy herself -- that is, derive pleasure from being appreciated and showing off her beauty. And probably she'll want to do it again and again. Undoubtedly Ms. Blondeau knows little or nothing about "s-e-x," but she knows what 'sexy' is on a pre-conscious level.

There are a lot of facets to this story, but at the very core of the hand-wringing over "provocative" images is a real, although often unarticulated, belief on the part of moralists that if they could only stamp out every vestige of beauty, sexuality and sensuality where girls are concerned, every photograph, every painting, every cartoon, every story, indeed, every expression, then they could stop men from being attracted to girls, whether under the age of 18 or under 12. This is a total fantasy. It's also a complete misunderstanding of sexual attraction. Men will never stop being attracted to underage girls, not even when they're all dressed in burkas.

Ms. Blondeau has a sultry beauty which she hasn't yet grown into (but undoubtedly will). However, her images, whether she's playing dress-up, posing to sell fashions or caught unawares by paparazzi, aren't in the least provocative, unless you consider pressing the buttons of knee-jerk moral Taliban types to be the measure. These types live in a cocoon of neurotic mythology where questions like "how young is 'too young'" to play dress-up, sell clothing or wear makeup" apparently have meaning. To be sure, these people do have the power to pass laws and mount witchhunts. But in the end they will change absolutely nothing for the better, not even for their own children.

Ms. Blondeau doesn't approve of the moralists.

Webeweb's Sandi and Lily Speak Out: "We are NOT Victims"

2011-06-23T18:34:00.000-07:00

The notion of there being "victims" of the Webeweb child modeling websites is ridiculous. "Victims" of photos, fully clothed? It trivializes the very concept of victimhood. Now come Sandi and and Lily, two former Webeweb models, to proclaim that they were definitely NOT "victims." They appeared on youtube, here and here, in two clips making affirmative statements that they were never victims, enjoyed modeling and benefitted from the experience. Sandi (Shekinah Christian Pierson) is the daughter of Jeff Pierson, who photographed her and 15 other Webeweb models, most notoriously Savannah Haile (a/k/a Bailey model), who made a number of spurious complaints about her photo sessions when the government came knocking. (One can guess that her mother was alarmed at the prospect of being charged with supplying her daughter to alleged child pornographers. Much better to be a "victim," no?)

Pierson already pled guilty in 2005, with a few months of the arrests, and agreed to provide information and testify against Marc Greenberg and Jeff Libman, the principals of Webeweb. On February 11 of this year, Pierson was sentenced to 67 months, of which he will have to serve 57 months (85% of the sentence) -- just under five years. (There is no parole in the federal system and no release earlier than that 85% sentence completion.) As Pierson was not yet technically in jail, but "merely" confined to his home on electronic monitoring for 6 years, he surrendered himself on March 9, 2011. The next time he'll see the light of day is December 2016. On his release from prison, he'll be on supervised release for 10 years. During that time, if he commits another "offense" of any kind, or leaves the jurisdiction without permission of his probation officer, or fails to notify his probation officer that he has a new job or residence, or he gets excessively drunk, or assosciates with anyone convicted of a felony, or engages in numerous other activities the government might not like, he can be sent back to jail for whatever remains of that ten year supervised release period. It's a Sword of Damocles. Pierson will also have to register as a Sex Offender. Failure to keep his registration information current can result in new charges, subjecting him to a 10 year prison sentence IN ADDITION to imprisonment for the rest of his supervisory period. Pierson's body, personal property and residence will be subject to search, with or without a warrant during this time. He will have to participate in a "mental health" treatment program. Around 2027, he'll finally be free.

Jeff Libman will never be free. He got 108 months (9 years, serving 8 years and 7 months) but will be on supervised release for life (in addition to having to register as a sex offender). All for pictures of fully clothed girls that he didn't even take. It's a total abuse of human rights. Marc Greenberg was a bit luckier. The government allowed him to plead guilty to money laundering under 18 U.S.C. 3353(a)(1)(6). He was hoping to get probation, but he was sentenced to 33 (serving 2 years and 4 months) months with a "mere" 3 years of supervised release.

If Pierson cooperated, why did he receive a higher sentence than Greenberg? Aren't informants supposed to be prized by the government? Well, the government argued how magnanimous it was in a very revealing sentencing memorandum filed with the court on February 7, 2011. "The pre-sentence report," the government noted,

"correctly calculates an offense level 33 and a criminal history category I [for Pierson], resulting in a Guidelines sentencing range of 135-168 months. Howevever, the government has filed a motion for a downward departure under United States Sentencing Guideline Section 5K1.1 based on the defendant's substantial assistance. U.S.S.G. Section 5K1.1 allows for consideration of substantial assistance in the investigation of another person and substantial weight should be given to the government's evaluation of the extent of the defendant's assistance, particularly where the extent and value of the assistance are difficult to ascertain."

"Difficult to ascertain." Pause over those words for a moment. Why was his assistance "difficult to ascertain"? Because, as the government admitted in the very next sentence, the government's case was deeply flawed:

"The government's investigation involved commercial websites, more than a terabit of data on several computer servers at various locations, co-conspirators, UNCOOPERATIVE WITNESSES, numerous accounts and NO BINDING CASE LAW within the Eleventh Circuit. For the aforementioned reasons ... the defendant's assistance warrants a downward departure to a sentence of 67 months followed by 10 years of supervised release."

(The capital letters were not in the original.)

So Pierson's information wasn't that valuable. The government's case was hobbled by uncooperative witnesses, i.e., girls and parents who refused to do the government's bidding, and the inconvenient truth that there was "no binding case law" that could guarantee conviction. Indeed, there was no binding case law anywhere because the theory of criminality in the Webeweb case -- that modeling pictures constitute child pornography -- is insane. (Not even the Third Circuit precedent of United States v. Knox would have been terribly useful in the case of Webeweb, where there was no "zooming in" on the clothing covering the genitals.) Still, all of the defendants wisely pleaded guilty here because none of them wanted to risk being sentenced to a guaranteed 20-30 years in jail upon conviction. Not incidently, "all" of the defendants means Pierson, Libman and Greenberg. There were other photographers, but none of them were ever charged and none will be.

Why did Marc Greenberg get a lower sentence? The government accepted the fact that he sought advice of counsel to ascertain whether the images Webeweb was buying and selling were legal. Renowned California criminal defense attorney Jeffrey Douglas told Greenberg they were, but that opinion was still not enough to save Greenberg from being unjustly imprisoned. Douglas assured Greenberg with facts, among them, that Greenberg had no criminal record, no previous history wtih pornography and that the highest law enforcement agency in the State of Florida had been monitoring Webeweb for years and did not find the images illegal. And Greenberg believed him. The government credited that belief to some degree. (While Douglas's advice saved Greenberg a lot of years in jail on the plea, it may not have saved Greenberg from conviction if he went to trial. "Advice of counsel" is a completely untested defense in this area.)

But Pierson had also sought legal advice. Pierson's lawyer proclaimed the images legal and Pierson also knew that the DHR in Tuscaloosa, where Pierson lived, had investigated him and found no cause to take any action. Funny enough, though, Greenberg told the government that he sought legal advice BECAUSE OF Pierson's images, while Pierson told the government that he sought legal advice because he argued with Libman that his images should be LESS provocative. The goverment took the bizarre position that Pierson was simply acting in his economic interest by arguing for LESS provocative images and was not earnestly concerned about running afoul of the law. This makes no sense, but it's precisely the kind of "through the looking glass" argument one can expect from the U.S. Justice Department, one moment claiming that the defendants were pushing the limits of the law in order to make the most money they could and the next moment claiming that they wanted less provocative images to make even more money. That prosecutors can make such arguments with a straight face is deplorable.

So what about Pierson's "victims"? Pierson maintained (and Sandi and Lily attest to it) that each parent knew of the images, were present for the shootings or had access to the pictures. Nevertheless, when Pierson's "victims -- i.e., the 16 girls he photographed -- were pushed by the government, 6 agreed to request restitution (a few asked for $150,000 each); 6 declined (some of them vehemently), 3 others refused even to speak with the Governent regarding the issue and 1 is Sandi, his daughter. It's not really a surprise that 6 agreed with the government's request to push for restitution. After all, through these prosecutions they learned that Webeweb made well over a million dollars (albeit now forfeited to the government). It was like, "wake up and smell the money."

Images courtesy the Internet Archive Wayback Machine.

Florida v. Greaves (Nice try, Otto!)

2011-01-03T13:06:00.000-08:00

Kemp Brinson over at Polk Law Blog was kind enough to provide some feedback on part (3), pointing out the flaw in my analysis regarding the unconstitutionality of Florida statutes § 847.011(1)(c). Both Mr. Brinson and Larry Walters believe that the section requires a two-stage analysis of Greaves’s text – first, whether it is obscene under the Miller test (encompassed within § 847.001(10), and second, whether it also falls under the definition of “harmful to minors” under § 847.001(6). I’ll defer to them both.

From that interpretation, if the work is found “obscene,” then it is not constitutionally-protected, and the crime defined by the subcategory obscene-plus-harmful-to-minors raises no constitutional implications. I thought about, but couldn’t come up with any constitutional reason, why the state can’t decide to punish some kinds of unprotected speech more severely than others. Certainly it would seem that there is no constitutional requirement that all unprotected speech needs to be treated the same for sentencing purposes.

What bothers me about the statute is that there is no rational basis for it, no compelling reason that would justify -- if there were a requirement to do so -- why the state should punish the adult-to-adult dissemination of one type of obscenity over another. Of course, no rational basis or compelling reason is required. Still, it seems odd that speech describing minors engaged in nudity, sexual conduct or sexual excitement – i.e., acts that are “harmful to minors” under Florida law – can’t be banned unless it is “obscene” under the Miller test, but may be punished far more severely for satisfying something less than the Miller test.

§ 847.011(1)(c) is a piece of moral legislation which, at its heart, aims at pure speech (albeit unprotected speech), rather than some noncommunicative impact or result. It should not be overlooked that the chilling effect placed on any speech which might fall under § 847.011(1)(c) is, even if it raises no constitutional objection, very real.

In any event, I will turn to analyzing Greaves’s Guide to examine whether it is “obscene” under the Miller test. The prosecution will have great difficultly, I think, making its case if the judge has a basic respect for the First Amendment.

What Greaves Lost By Not Challenging His Extradition (Part 2)

2010-12-30T18:28:00.000-08:00

This probably can’t be said enough: Phillip Greaves’ text is not a “how to” book and it’s not a ‘guidebook’ to molesting children. Whether one thinks it’s poorly written, outrageous or immoral, much of the content goes to the heart of the First Amendment by talking about moral, social and legal issues. It doesn't matter if Greaves is right or wrong about anything. It doesn’t matter if his opinions lack foundation. He's entitled to embrace whatever viewpoint he wishes. He’s entitled to view the facts of life as he sees them. This is the essence of freedom of speech.

The alleged "obscenity" of Greaves’ text is based on his viewpoint, not on the very meager number of words out of the entire text which describe, in very unexplicit language, a few sex acts with minors in language so tame that it would never make it to tabloid TV – unlike, say, the work of J.T. Leroy or any number of other explicit writings of supposed childhood experiences.

Before dealing with the various pre-trial and constitutional issues that will need to be dealt with pre-trial, it is important to understand what happened when the Florida arrest warrant was issued and Greaves declined to contest his extradition. In fact, by waiving extradition, he gave up his only chance to challenge the sufficiency of an arrest warrant that was based on a sham finding of probable cause. Nevertheless, the insufficiency of the warrant points to a number of solid defenses.

Heightened Scrutiny on Searches, Seizures & Arrests.

Fundamental to the Fourth Amendment [1] to the Constitution is the requirement that an affidavit for a search or arrest warrant must not be misleading and must be sufficient on its face to allow a neutral and detached magistrate (i.e., a judge or other authority who signs the warrant) to determine whether probable cause exists for the arrest or search. When the factual basis for the arrest involves materials which raise questions of free speech, there is a heightened scrutiny to the element of probable cause.

Regarding warrants for the search and seize of allegedly obscene material, the Supreme Court has repeatedly found that affidavits consisting of conclusory assertions that the sought-after materials are obscene do not meet the Fourth Amendment's requirements. Rather, the affidavit supporting the warrant must set forth specific facts so that the issuing judge may “focus searchingly on the question of obscenity.” See, New York v. P. J. Video, Inc., 475 U.S. 868, 873-4 (1986); see also, Lee Art Theater, Inc. v. Virginia, 392 U.S. 636 (1968); Marcus v. Search Warrants, 367 U.S. 717 (1961). This is due both to the dangers of suppressing constitutionally-protected speech by “prior restraint” (i.e., prior to a proper judicial determination at trial) and to the subtlety of the inquiry required to distinguish “obscenity” from protected speech – a matter that should not be left to law enforcement officials who have a vested interest in the outcome of their cases.

Because the seizure of allegedly obscene matter requires this heightened scrutiny – that is, a consideration by a judge of honest descriptions of the material targeted in the warrant, if not a review of the materials themselves – it only follows that the arrest of a person for allegedly distributing such matter should meet the same requirements. To be sure, there was no necessity of heightened scrutiny for the Florida authorities to obtain a copy of Greaves’ text, which was not seized by the Florida authorities, but sent to them voluntarily by Greaves. However, having obtained the allegedly obscene matter, the judge issuing the arrest warrant still had to determine whether probable cause lay to arrest Greaves for distributing obscene matter. This required an actual consideration of the material, not the warrant's redacted excerpt of a tiny portion of it and a conclusory allegation that it was obscene.[2]

Greaves’ case is both similar to and different from Maryland v. Macon, 472 U.S. 463 (1985) in this sense. In Macon, police officers walked into an adult bookstore and, posing as customers, purchased some matter they deemed to be obscene. The Supreme Court ruled, not surprisingly, that there was no “seizure” because the defendant voluntarily sold the magazines and thus “the officer did not ‘interfere’ with any interest of the seller; he took only that which was intended as a necessary part of the exchange.” After examining the materials, the officers returned to the store and, without a warrant, arrested the defendant, who was the clerk behind the counter. For technical reasons, the Supreme Court declined to decide whether an arrest warrant was necessary, thereby not only ducking the question of whether an arrest should have been subject to higher scrutiny, but also leaving the defendant without a remedy. Two lines of cases sealed the defendant’s fate in Macon, the first holding that the illegality of an arrest in itself will not suffice to prevent the introduction of evidence lawfully obtained prior to the arrest, and the second holding that the illegality of an arrest will not suffice to invalidate a conviction. (The same goes for an illegal extradition: “The power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a ‘forcible abduction.’” Frisbie v. Collins, 342 U.S. 519, 522.)[3]

In Greaves’ case, the arrest warrant was presented to the Florida judge for signature, but it is not clear whether the judge actually read all or part of Greaves’ text or relied primarily on the warrant which misleadingly described it. (If he did read the text, then he failed to give it an honest reading vis a vis the Florida obscenity statute.) Either way, had Greaves fought extradition, he would have had one more bite at the apple. If you have read any of the mainstream media press coverage in Greaves’ case, you will have seen a statement that the Florida court would not suppress the warrant for Greaves’ arrest because the issue of probable cause had already been determined. Yet that determination was not binding on the Colorado court, which was bound to rule on the sufficiency of the allegations contained in the Florida warrant, as well as to determine whether those allegations made out a violation of law recognized under the laws of the State of Colorado.

Even though the finding of probable cause in Florida was a sham and, as it stands now, Greaves has no direct remedy for it (following the Frisbie line of cases mentioned above), Greaves still has strong constitutional arguments and remedies. In Part 1, I criticized Larry Walters’ theory mentioned in the mainstream media that the statute under which Greaves was charged, 847.011(1)(c), was meant to be applied to images of actual minors only and because of this, Florida's extradition of Greaves (which was required that he be charged with a felony) was illegal. Even assuming that Mr. Walters turns out to be correct, i.e., that 847.011(1)(c) applies only to images of actual minors, in light of Frisbie, now that the Florida authorities have a hold of Greaves, all they need to do to take Greaves to trial is re-charge him under 847.011(1) before he leaves Florida.

In Part 3 I’ll talk about the arrest warrant. Then in Part 4 I'll outline some of the constitutional arguments Greaves will have to challenge the statute.

Endnotes

[1] The Fourth Amendment reads as follows: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

[2] For a book to be found "obscene," it must be considered "as a whole." The determination cannot be based on a selection of a small portion of it. The deficiencies of the search warrant will be addressed in the next posting.

[3] For whatever it's worth, Justice Brennan dissented vigorously in Macon in language that reverberates today in the Greaves case:

When First Amendment values are at stake mechanical application of these precedents is inappropriate. No logical imperative requires the rule of Frisbie v. Collins. Even under the methodology to which this Court has recently wedded itself in United States v. Leon, 468 U.S. 897, 906-908 (1984) – a methodology about which I have grave doubts… – the question of the proper remedy for government illegality is a matter of judgment, a balance of the State's interest in law enforcement and the citizen's interest in protection from unreasonable official overreaching. … In most cases the incremental deterrent of invalidating a conviction as a result of an illegal arrest might not justify the added "interference with the public interest in having the guilty brought to book." … In cases like the present one, however, an additional and countervailing public interest in ensuring the broad exercise of First Amendment freedoms must enter the calculus. For the consequences of illegal use of the power of arrest fall not only upon the specific victims of abuse of that power but also upon all those who, for fear of being subjected to official harassment, steer far wider of the forbidden zone than they otherwise would. Such a result would infringe not only the rights of those who would otherwise engage in such expression but also the rights of those who would otherwise receive such expression. The deterrent to protected expression that such a regime would work demands an effective remedy in the form of invalidation of obscenity convictions based on arrests unsupported by any prior judicial determination of probable cause. Such a rule finds its source in the commands of both the First and Fourth Amendments.… Opting for the contrary course, the Court today sanctions an end run around constitutional requirements carefully crafted to guard our liberty of expression.

The Court's endorsement of the government's abuse of the arrest power as a means to enforce norms of taste in written and visual forms of expression is disquieting in its own right because the consequence inevitably will be suppression of protected nonobscene expression. When one recognizes that the same official use of the power to search and seize sanctioned today in its application against the sexual nonconformist can be instantly turned against the political nonconformist see Stanford v. Texas, 379 U.S. 476 (1965), this decision takes on a particularly ominous cast. These “stealthy encroachments” upon our liberties sanctioned in the State's present effort to combat vice may become potent weapons in a future effort to shackle political dissenters and stifle their voices. In deciding cases such as this one, the Court would do well to remember that “[u]ncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. … I dissent.

[Most of the citations in the above paragraphs were deleted for ease of reading.]

Greaves Arrest and Extradition Poses Grave Legal Questions (Part 1)

2010-12-25T17:59:00.000-08:00

Obscenity lawyer Larry Walters told AVN on December 21st that the prosecution of Phillip Greaves under Florida obscenity law may be fatally flawed on the basis that Greaves was charged under a statute not inapplicable to his text, "The Pedophile's Guide to Love and Pleasure: A Child-Lover's Code of Conduct." AVN's explanation was rather sketchy, so I'll try to be more thorough here.

In order to be extradited from Colorado to Florida, Greaves had to be charged with a felony -- and was, under Florida Statutes 847.011(1)(c). This statute provides that a person who commits a violation of paragraph 847.011(1)(a) -- here, sending an "obscene" publication into the State of Florida -- is guilty of a felony if the publication "is based on materials that depict a minor engaged in any act or conduct that is harmful to minors." In other words, if the publication is not based on such materials, a violation of paragraph 847.011 (1)(a) is only misdeamor and therefore non-extraditable.

In making his argument, Mr. Walters focuses on the word "depict" in paragraph (c) which, he argues, must apply only to visual images, not written descriptions. The reason is two-fold. First, under paragraph 10 of Section 847.001 of the Florida statute, "obscene" means

"the status of material which:
(a) The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

(b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and

(c) Taken as a whole, lacks serious literary, artistic, political, or scientific value." [Emphasis added.][1]

By leaving out the word "describes" from 847.011(1)(c), Mr. Walters argues, the legislature meant to exclude written descriptions and to include only visual depictions.

Second, Florida statutes paragraph 847.011(1)(d), which follows the paragraph under which Greaves was charged, provides that "[a] person’s ignorance of a minor’s age, a minor’s misrepresentation of his or her age, a bona fide belief of a minor’s age, or a minor’s consent may not be raised as a defense in a prosecution for one or more violations of paragraph (a)...." Read in para materia with paragraph (c), paragraph (d) strongly suggests that the context of paragraphs (c) and (d) is that of visual depictions of actual minors.

There are three weaknesses in this argument. The first is that the definition of "depict" already encompasses "describe". (See, for example, the Merriam-Webster Dictionary, which defines "depict" as "(1) to represent by or as if by a picture..., and (2) describe." The second flaw is that paragraph (d) could theoretically apply to written descriptions of acts involving an actual minor. There is no limiting language for its interpretation. Finally, paragraph (a) also identifies sound recordings among the possible "obscene" media being criminalized. Sound recordings do not depict (as by visual images) or describe (as by words). Just as an example, is it plausible that the Florida legislature meant to exclude from the paragraph (c) felony provision an "obscene" sound recording of a 12-year-old giving a blowjob if there was no visual depiction to accompany it?

While it is entirely logical that the omission of the word "describes" from paragraph 847.011(c) should exclude written descriptions, this is a lawyer's argument, likely to be recognized only by a judge with a high degree of respect for the rule of law -- so high that he is willing to overlook his personal moral animus against a defendant like Greaves and narrow the reach of the statute. This would not be Polk County Judge J. Michael McCarthy, who issued the arrest and extradition warrant against Greaves. For a Judge like McCarthy, applying the age-old method of result-oriented jurisprudence, the Merriam-Webster Dictionary will be quite sufficient.

In Part 2, I will deal with two constitutional arguments Greaves may have: first, the possibly unconstitutional application of the Florida obscenity statute to Greaves' text on the basis of impermissible viewpoint discrimination; and second, a challenge to paragraph (c) on equal protection grounds, following principles set forth in Ashcroft v. Free Speech Coalition and Lawrence v. Texas.

Endnotes.

[1] This test was adopted by the Florida courts following the Supreme Court decision of Miller v. California and was subsequently written into the Florida law. The Miller test has been the test for obscenity under both federal and state law since 1973.

Availability of Real Child Pornography Correlated With Drop in Sex Crimes Against Children

2010-12-19T17:40:00.000-08:00

Working with the Czech Ministry of Justice, three academics (Milton Diamond, University of Hawaii, John A. Burns School of Medicine, Pacific Center for Sex &; Society, Hawaii; Eva Jozifkova, J.E. Purkynje University in Ústí nad Labem, Department of Biology, Czech Republic; and Petr Weiss, Institute of Sexology, Charles University, Prague, Czech Republic) have found that the legalization and availability of actual child pornography in the Czech Republic correlated with a drop in reported sex crimes against children.

A full version of the study was recently published on the website for Dr. Diamond's Pacific Center for Sex & Society. It is worth quoting parts of it at length. (I have taken the liberty of editing re-arranging the paragraphs):

Issues surrounding child pornography and child sex abuse are probably among the most contentious in the area of sex issues and crime. In this regard we consider instructive our findings for the Czech Republic that have echoed those found in Denmark (Kutchinsky, 1973) and Japan (Diamond & Uchiyama, 1999) that where so-called child-pornography was readily available without restriction the incidence of child sexual abuse was lower than when its availability was restricted. As with adult pornography appearing to substitute for sexual aggression everywhere it has been investigated, we believe the availability of child porn does similarly....

The study from Japan -- Pornography, Rape and Sex Crimes in Japan -- can be found here. The Czech Republic findings are also consistent with other studies in progress:

Important to note are recent findings by Swiss investigators that viewing child pornography does not seem to be a risk factor for future sex offenses (Endrass, et al., 2009). These investigators checked recidivism rates for "hands on" child sex-offenders with porn-viewing-only offenders and concluded "Consuming child pornography alone is not a risk factor for committing hands-on sex offenses … The majority of the investigated consumers had no previous convictions for hands-on sex offenses. For those offenders, the prognosis for hands-on sex offenses, as well as for recidivism with child pornography, is favorable."

Kendall (in press) conducted an in-depth analysis of possible relationships between society, pornography, rape and the Internet for the State of California. Kendall found that the arrival of the Internet, while not seeming to have an effect on other crimes, was associated with a reduction in rape incidence. After checking the results for the effects of the extent of porn use, user marital status, size of city in which potential rapists might live, possible economic status, and other social and demographic features, Kendall concluded that "potential rapists perceive pornography as a substitute for rape &hellips; pornography is a complement for masturbation or consensual sex, which themselves are substitutes for rape, making pornography a net substitute for rape." This conclusion reflects on the earlier findings of Goldstein et al. (1971). These investigators, having extensively interviewed and surveyed rapists, pedophiles, and others along with control groups of persons with no history of sex offenses about their use of pornography, found that sex-offender and sex deviate groups not only have had less experience with pornography but when they do come across it “ &hellips; report a higher incidence of masturbation in response to erotic materials than the controls." They go on to conclude that "the erotic materials are much more significant in producing masturbatory reaction in the users compared with the controls than in inducing sexual relations."

In short, the researchers conclude, their findings in the Czech Republic "support the displacement function of pornography for potential sex offenders" -- i.e., they provide an outlet via masturbation.

The researchers are NOT in favor of the legalization of child pornography, which, at least when it depicts actual sex, is presumptively harmful in both its creation and continued distribution. However, they inquire whether other materials might serve the same purpose -- in particular 'virtual' images and cartoons of fictional minors. Otakus the world over already know the answer. It is now for the researchers to find a way to figure out how to study it.

(Above, the cover of Hikari Hayashibara's "Lolita Girls Collection," volume 1, a manga from Japan; at right, a doll-like virtual (i.e., fictional) image by "Waldo." Propriety and legality prevent this blog from displaying any of the many hard-core images of completely fictional minors created by these artists, but this is exactly the material that these researchers need to study.)

Tokyo Bans Sale of Hentai to Minors -- Shrug-worthy Regulation or Slippery Slope?

2010-12-19T06:31:00.000-08:00

On December 15, 2010, Tokyo passed a law prohibiting the sale to minors of any manga which "promotes illegal or immoral sexual activity." A previous law proposal to prevent the sale to minors of all depictions of sexual activity involving (fictional) minors was roundly rejected by the Tokyo legislature at least twice. The new, more vague language, however, had the support of nearly all the parties.

Over at Sankaku Complex, folks were announcing the end of the "anime industry," which of course is ridiculous. While publishers and artists who create manga for under-18s certainly have cause for concern -- who decides the meaning of "promotes"? who decides what is "immoral"? -- those who produce hard core works needn't worry. The new law doesn't apply to them because "hentai," including lolicon, is not intended for the under-18 market and is generally only available in adults-only sections of stores anyway.

Is this the beginning of a slippery slope? Maybe, but a very speculative maybe. On October 17, while the law was being considered, Tokyo's governor Shintaro Ishihara emphasized the need for regulation, stating that "stories with young children being raped serve no purpose. They cause nothing but harm with no benefit." Ishihara made clear, however, that he was talking about titles aimed at children. That there are no such titles does tend to suggest that for some advocates, the law is part of a larger strategy.

In the meantime, big publishers like Akaneshinsha will continue to publish Comic LO and other no-holds-barred lolicon titles. Relax, and if you're not from places like the US, Canada, Sweden, the Philippines and Australia (all of which criminalize lolicon), enjoy. (Pictured below, a recent Akaneshisha release from Himeno Mikan.)

"Shocking" News About Some "Shocking" Photos

2010-11-22T16:39:00.000-08:00

Over at The Sun, the U.K.'s premier intellectual newspaper, people are SHOCKED by the prospect of two girls, ages 8 and 9, dressing up in Lady Gaga outfits (YES, the MEAT dress - ugh - I mean, couldn't Lady Gaga just do a TOFU dress or a broccoli gown or something?) and gyrating at kids' parties for pay:

"Known as the Mini GaGas, Shenna and Charlie have found fame around their local town of Falmouth, Cornwall, as they don blonde wigs, bikinis and even GaGa's highly controversial meat dress to perform."

Quoting the mums: "When the girls expressed an interest three months ago in performing as their favourite pop star, Lady GaGa, we thought it was a fantastic idea. Since then they have been working at children's parties every weekend and have been inundated with requests to perform. Kids no longer want clowns or magicians at their birthday celebrations. They want to be entertained by the Mini GaGas."

And so they should be. But Falmouth turned to foul mouth in the comments section, where outrage was heaped on the girls' mums for turning out their daughters as dancers:

"Sick and wrong." "Oh for crying out loud! Let kids be kids!!!" "Now this is why chavs shouldn't be allowed to have children!" (Nice comment. That one's probably a Guardian reader, slumming over at The Sun website.) "This is absolutely disgusting. Would the mothers feel comfortable dancing on stage in nothing but Crime Scene tape? I think not. So why put your **** 9 year old children through it. It's child exploitation and i'm surprised it hasn't been reported to social services yet. Bring your children up to do something RESPECTFUL like go to college, and get a degree. They are still so young and impressionable, and supposed to be INNOCENT at that age, not a magnet for paedophiles."

Those kids ARE being kids. They're doing something creative and fun. And what kid doesn't know that getting work and being paid means that they're good. As for being a magnet for "paedophiles," I decided to test that theory out by sending the link to a forum frequented by men attracted to young girls. And you know what they said? They found the photo of the two girls without costume, simply smiling for the camera (see the Sun article), far more erotic than the ones of the girls as Mini-Gagas. And when they read the Agony Aunt's bit of agony -- "yes, little girls run around in just their knickers while going for a paddle by the seaside, but not self-consciously - it is asexual, not titillating -- they said that that was exactly what they found titillating. You can see how the hysteria over what girls are wearing is never going to end once people know the truth.

This could all be easily solved, of course, if the West went Muslim and ordered girls over the age of about 7 into hijab, where "paedophiles" can't see them. See a Young Girl Hijab Tutorial for tips on the fashionable wear of hijab or visit HijabGirl and buy your daughter a lovely Girl's Tie-back Al-Amira Khimar -- or better still, a Veilkini. Keep her safe from the prying peepers of "paedos."

Hysteria Reigns Over E-Text Removed by Amazon

2010-11-21T14:08:00.000-08:00

It didn't really seem worth blogging about Phillip R. Greaves' "text," mistitled The Pedophile’s Guide to Love and Pleasure, whose title touted itself as a Guide. From what I can tell, the text was really nothing much more than some suggestions ("if you're going to do x, then do y"), admonitions ("never do a, b, or c") and uninformed opinion. Part of the problem with blogging about it is that I didn't read the entire text. I found the same very brief excerpts over and over. One blogger said she got Greaves to send her the entire text, then proceeded to edit it selectively. Who knows why she printed the positive account of man-boy sex in its entirety. Maybe she liked it.

I wrote to her, in any case, hoping she might sent the text to me so I could actually write about it. At the same time, I must have looked at over 200 blog postings, most of them the same. Funny how people who consider themselves so moral and concerned about the law seem not to understand much about the law. They also seem to enjoy advocating plainly illegal conduct (most of it involving maiming or murder) -- but maybe, like all of Greaves' text, it's just fantasy.

To be sure, there was moderately intelligent discussion out there, most of it centering around the idea of free expression and Amazon's bad choice to limit the books it offers based on public hysteria rather than a fixed, consistent set of criteria. See, for instances, Good Feed. On that site, I posted a comment about the book (which is reproduced below) and the young woman who had posted a selection from Greaves' text went postal. Here is the exchange in full:

Message from Otto117 to Alana
Hi, I'm wondering if you would possibly send a copy of greaves' text. I'm writing about it and it's not really very interesting if I haven't read it. (I refuse to call it a book, btw.) The little erotic story in it (that you reproduced on the site) is pretty meaningless - what I wanted to get was how is thoughts were laid out and structured. Here are the kind of thoughts I'm having about the text:
- The text isn’t well written or well reasoned;
- That the text contains lies, myths, delusions, and just completely made-up nonsense doesn’t distinguish it from a lot of other books on Amazon. (It probably does have more typos than most ‘books,’ however.)
- Greaves creates more misconceptions than he claims to clears up;
- Many of Greaves' detractors are certainly no better than Greaves in the department of morality. Greaves doesn't actually "advocate" as in "you should go out and do this". (The most I saw was 'if you do this, you should...." and "don't ever do this...") What he does is excuses some illegal acts under some circumstances. Many of his detractors, on the other hand, openly advocate his maiming or murder, which are illegal acts. I don't find the text important in the least. I find it ridiculous. What is important is the controversy over the text.
Just some thoughts.... Regards, Otto117

Answer from Alana to Otto117
take my blog link off of that site. NOW. I posted it AS IS. I asked him for the book, he sent it to me.
If you want it-you look the pedophile up and ask him yourself. You obviously made a xanga JUST to ask me for the book.Which means you obviously searched the internet, and scoured the web for any information on it.
You also JUSTIFIED it, in that comment you made.Again, if you want the book. Do what I did.

Reply from Otto117 to Alana
Ok. Justified it? I don't think so. Criticize it and have an intelligent discussion about it? Sure. Think that one can have a nuanced conversation about the subject matter? Absolutely. (Surely you didn't put it on your blog just to moralize about it. There are hundreds of books you could do that with....) I'm not sure what blog link you are referring to. I don't have a link to your blog from mine. (So calm down.)

Answer from Alana to Otto
You're not sure?? here's the link, take it off, or I'll have the site moderator do it.
http://goodmenproject.com/2010/11/11/5-reasons-why-i-have-the-right-to-buy-the-pedophiles-guide/#comment-6284
there's the link to the page. obviously your comment is right there, giving my open blog link to tons of pedophiles searching for information. take it off.

Reply from Otto117 to Alana

That's not my site, silly. It's a politically-correct site for men. jeez, you're paranoid. Anyway, if you're afraid of "pedophiles" accessing your site, you'd better tell google, since a simple search of the title of Greaves' book plus the word "excerpt" turns it up. Take a chill pill. Enjoy life.

Here is my posting at Good Feed over which Alana got her knickers in a twist:

Greaves’ ‘book’ is hardly a book and doesn’t give anyone insight into much of anything. Sure you have the right to buy it, and yes, I agree that Amazon should have some consistent policies. That it contains lies, myths, delusions, and just completely made-up nonsense doesn’t distinguish it from a lot of other books on Amazon. (It probably does have more typos than most ‘books,’ however.) No person attracted to minors is going to guide his/her behavior by the book, feel empowered to have sex with a minor. I’ve only seen part of the text — http://ohletitbe.xanga.com/735619148/quotes-from-a-pedophiles-quide-to-love-and-pleasure-a-child-lovers-code-of-conduct-graphic-co/ — but it’s pretty loopy.

Far more troublesome is the fact that Amazon also removed Tom O’Carroll’s book, Paedophilia: The Radical Case, published by Peter Owen, the British publisher, in 1980. O’Carroll makes a case ‘for’ paedophilia by approaching the topic with utmost philosophical seriousness (but with a paucity of data). Whether or not one agrees with or is disgusted or just bored by what he has to say, the book is is part of the history of sexual politics in Britain. There is simply no reason for Amazon to de-list it.

Alana decided to get into the discussion at Good Feed. She can barely reason by this point:

Your argument stands to reason that of the author of this book THAT YOU HAVE NO READ, AND SHOULDN’T BE POSTING AN ARTICLE ON, ANYWAY. YOU (who haven’t even read the book) have NO opinion on it, because you DO NOT know its context.

The man describes in detail what to use as a condom for boys that are TOO SMALL for regular condoms (even small ones). He says something to the effect of “However, do not make this publicly known, for they will be put behind the counter (for sale).” That tells you that he knows it’s wrong. Event he author of this book repeats several times that it’s wrong. If there is nothing wrong with this book, why is it being banned? If there is nothing wrong with this book, why did Amazon remove THE OTHER books by him? Especially, one that you liked previously ? This leads me to believe that many people that have come to my blog are looking for the context of the book, in which to learn from it. Not to better themselves, to better their pedophilia skills.
Greaves even says as one of the first things in the book, that he wants to make it safer for PEDOPHILES. Not the children.You are CLEARLY MISINFORMED.

Otto117's Reply at Good Feed:

Calm, Alana. Books get “banned” for all sorts of reasons, but the book isn’t illegal. Actually, I’ve read as much of the book as you have. The ‘condom’ excerpt is everywhere. It’s the only excerpt which provides “advice”, while most everything else is his loopy opinion and admonitions. Actually, Greaves says he wants to make sex safer for children (which is pretty stupid. If he did, he would simply tell them to stay away from adults who wanted to have sex with them.)

If you stop acting like an hysteric and answering in all caps, you’ll see that I didn’t like the book. You need to inform yourself a little bit better about the difference between refusing to sell a book on a commercial site (which is what Amazon did) and censoring a book (which governments do). The book hasn’t been censored. Look for the name of Jeffrey Toobin, a nice, respectable lawyer who writes in the New Yorker. As he explained to the major media, Greaves’ book is precisely the kind of book that it protected by the First Amendment, while a book of erotica may not be unless it has “serious artistic value.” (See, e.g., Fanny Hill, which was determined not to be obscene in Massachusetts 1966, but may be obscene in some places today because it describes minors having sex.)

BTW, if pedophiles needed instruction books on how to seduce children (which is a pretty funny notion in iteself), they wouldn’t look to Greaves’ text, which provides nothing but his strange opinions, but to all the non-fiction books out there on the methods that pedophiles use to seduce children, written by psychologists. I guess Amazon should also refuse to sell those, on that basis.

Alana has the last word (so far) at Good Feed:

I don’t appreciate you using my blog link without my consent. Please take it off.

[All typos are as in the original messages/posts, notwithstanding Alana's claim that nobody listens to anyone who has typos. (We both do.)]

Otto117 wonders...

Is there some rule that you can't provide a link to someone's blog without their consent? I missed that rule. Can someone please google that for me?

[BTW, images by Chararin さん.]

Making Sense of the Webeweb Prosecution (Part One)

2010-10-21T20:06:00.000-07:00

The Webeweb prosecution, begun in September 2006, is now drawing to a close with the plea agreements of Jeffrey Libman and Marc Greenberg filed with the court on September 17th, 2010. Many will wonder why Libman and Greenberg pleaded guilty rather than chose to fight this unjust case. Others will criticize them, believing that they had a responsibility not only to fight, but also win, thereby protecting their former customers, as well as anyone else who created, sold, downloaded or possessed modeling images, from government overreaching. To be sure, the government's case was weak. Out of some half a million images, prosecutors only found 148 that they were willing to take to a jury. If you were to ask the U.S. Attorneys prosecuting the case, they would probably claim that the 148 were only the "worst" and that there were others, but this is nonsense: only 148 images were charged. That was the government's case and nothing more.

Those 148 images were charged as depicting what 18 U.S.C. Section 2256(2)(E) defines as a "lascivious exhibition of the genitals or pubic area of any person," which is ostensibly a type of "sexually explicit conduct." Yet, none of the girls were naked, nor were they wearing translucent or tight clothing that revealed even the contours of their genitals. In the most basic sense, nothing was being "exhibited" except facial expressions, poses and (at most) the same flesh that would be on view were the models wearing dry bathing suits. Any "lascivious exhibition" that went on was purely imagined, whether by the viewer or the government.

If the above explanation hasn't made it clear, try this one: "Exhibition" means "an exhibiting, showing or presenting to view," and "exhibit" means "to offer or expose to view; present for inspection." (See Random House Dictionary of the English Language (Unabridged), 1979.) "Expose" means "to uncover or bare to the air, cold, etc.; to present to view, exhibit, display;" while "view" means "to see, behold." The sole antonym listed in the Random House Dictionary for "exhibit" is "conceal," a word which means "to cover or keep from sight."

Thus, the claim that there can be an "exhibition" of the genitals or pubic area when those parts of the body are covered by clothing is literally a contradicion in terms. To exhibit something requires that the thing being exhibited is actually seen -- that is, not covered, but exposed to view.

How, then, did "lascivious exhibition of the genitals" get to be applied to images of clothed models?

This is the first of a two part series.

United States v. Knox and the History of the Child Pornography Law.

In George Orwell's novel, 1984, protagonist Winston Smith reads to the reader from the fictional "The Theory and Practice of Oligarchical Collectivism," a tome which reveals the techniques used by the Big Brotherhood to indoctrinate its citizens. One of those techniques is "blackwhite," which is "the habit of impudently claiming that black is white, in contradiction to the plain facts." The text continues:

Applied to a Party member, it means a loyal willingness to say that black is white when Party discipline demands this. But it means also the ability to believe that black is white, and more, to know that black is white, and to forget that one has ever believed the contrary. This demands a continuous alteration of the past, made possible by the system of thought which really embraces all the rest, and which is known in Newspeak as doublethink.

The October 15, 1992, decision of United States v. Knox, written by Judge Cowan of the Third Circuit Court of Appeals, is a prime, real-life example of the process of blackwhite. Here, Judge Cowan begins with this startling claim: "Applying the plain meaning of the word 'exhibition' leads to the conclusion that nudity is not a prerequisite for the occurrence of an exhibition." United States v. Knox, 977 F.2d 815, 820 (3d Cir. 1992). From there, Judge Cowan sets out to re-write the legislative history, not just, in Orwell's words, "to believe that black is white" but also "to forget that one has ever believed the contrary." Witness the duplicity upon which the U.S. government has relied ever since:

Congress appears to have repudiated its earlier intention to confine the statute's coverage to nude exhibitions. Further, Congress failed to articulate anywhere it its extensive legislative history any desire that the statute, as enacted, prohibit only nude portrayals.

U.S. v. Knox, 977 F.2d 821.

Black is not white. 2 + 2 does not equal 5.

Quite to the contrary of the Third Circuit's pronouncements, the legislative history of the child pornography law, 18 U.S.C. Section 2252 (et seq.), makes absolutely clear that the law was written and, at least up until Knox, interpreted as criminalizing only depictions of minors whose genitals or pubic areas were nude and who were engaged in exhibiting their genitals or pubic areas in a manner which is deemed "lewd" (now "lascivious").

The original legislative proposal to the law, introduced in 1977 by the late Senator William V. Roth Jr. (R-Delaware), S. 1011 (the "Roth" bill), would have criminalized "nudity, if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction." That provision was roundly criticized by lawyers who testified before Congress as well as by the Carter Justice Department. A letter dated June 14, 1977, from Assistant Attorney General Patricia Wald to Senator James O. Eastland, then-Chairman of the Committee on the Judiciary, specifically recommended that

The term "nudity ... depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction" is also troublesome. This definition differs from the "average person" text for obscene material set forth in Miller v. California, supra, and it would be difficult to determine by what standard the "sexual stimulation or gratification" could be assessed. We would suggest as an alternative definition "lewd exhibitions of the genitals," a phrase used by the Chief Justice in Miller v. California, 413 U.S. 15 (1973), to describe one of a variety of types of conduct which could be prohibited under state obscenity statutes. Congress could make clear in the legislative history of the bill what types of nude portrayals of children were intended to be encompassed within this definition.

(Emphasis added.) Protection of Children Against Sexual Exploitation, Hearings Before the Subcommittee to Investigate Juvenile Delinquency of the Committee on the Judiciary, United States Senate, 95th Congress, First Session, May 27, June 16, 1977, pp. 77-78.

The Justice Department's recommendation to narrow the proposed ban to a certain type of nudity was adopted by Senators Mathias and Culver in S.1585 (the "Mathias-Culver" bill). The difference between the Roth and Mathias-Culver bills was the subject of University of Pennsylvania Professor Paul Bender's extensive testimony before Congress. Professor Bender, who was former general counsel to President Nixon's President's Commission on Obscenity and Pornography (1970), testified why the Mathias-Culver bill was preferable to the Roth bill vis-a-vis 18 U.S.C. Section 2256(2)(E):

More importantly, it is the definitional section of the Roth bill. It uses the conduct which it prohibits as having children engage in prohibited sexual acts and then it defines the prohibited sexual acts in a number of ways. Most of these definitions are okay. But some of them strike me as vague and so vague as to perhaps be unconstitutional. ... The nudity provision is a little bit troublesome also. It says "nudity, if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction." I have a problem with that in knowing whose purpose they are talking about and when that has to be the purpose. Is the notion of this that the person taking the picture has to take the picture for the purpose of stimulating or gratifying someone else sexually, or is it enough if the picture is simply used that way for that purpose by somebody later, even if that was not the purpose of the person who took the picture.

Nudity generally, I think, may be a bit overbroad in terms of the purposes of the legislation. I would not want to classify as child abuse anyone who takes a picture of a child without any clothes on. Lots of people do that of their children. They send it to the child's grandparents in interstate commerce. I don't think you would want to cover that. So I think it's right to qualify "nudity." But this qualification [in the Roth bill] strikes me as vague.

(Emphasis added.) Protection of Children Against Sexual Exploitation, Hearings, p. 103.

Professor Bender clearly understood the phrase "lewd exhibition of the genitals," contained in the Mathias-Culver bill, as a narrowing of the broader category of "nudity." Indeed, by limiting the scope of the Roth proscription on nudity to "lewd exhibitions of the genitals or pubic area," the Mathias-Culver bill ruled out other types of nude portrayals, e.g., nudity of the breasts or buttocks. The first federal child pornography law, The Protection of Children Against Sexual Exploitation Act of 1977, adopted the Mathias-Culver language. Congress has never acted to expand it.

As used in the statute, the phrase "lewd exhibition of the genitals" has a plain meaning, but not the one Judge Cowan was talking about. Rather, it refers to a type of sexual conduct on the part of the model depicted which is intended to exhibit and draw attention to his or her naked genitals. Such was the understanding of members of Congress and every witness who appeared at hearings during 1982, when Congress was in the process of amending the federal child pornography statute in the wake of the Supreme Court's decision in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348 (1982), which eliminated the requirement that depictions of minors engaged in "sexually explicit conduct" be obscene before they could be proscribed.

Senator Arlen Spector, mindful of the problems of constitutional overbreadth which might be posed by an outright ban on non-obscene depictions of "lewd exhibition[s] of the genitals or pubic area", proposed that such exhibitions continue to be protected if they possess literary, artistic or scientific merit. In discussing this proposal, Bruce Rich, on behalf of the Association of American Publishers, suggested that the exception should apply to the entire range of "sexually explicit conduct," not merely to "lewd exhibitions of the genitals." Mr. Rich, like the members of Congress who were considering changes in the law, naturally assumed that the statute "lewd exhibition of the genitals" meant nude genitals:

We say, first, that it is not enough merely to tag on the literary, etc., exception to exhibitions of nudity, as Senator Spector's own proposal would suggest ... We would suggesting having the literary, artistic, etc. exemption to modify the entire range of conduct which would be otherwise prohibited.

Child Pornography, Hearing before the Subcommittee on Juvenile Justice of the Committee on the Judiciary, United States Senate, 97th Congress, December 10, 1982. Serial No. J-97-152, pp. 19-20.

In 1986, when Congress once again contemplated amending the child pornography laws, comments by Senator Roth accurately reflect that what Congress had intended to criminalize were nude depictions of a certain character. Senator Roth, speaking in support of H.R. 5560, the "Child Sexual Abuse and Pornography Act of 1986," the House counterpart to his bill, S. 2398, referred to "child pornography" as "photos, films and videotapes depicting nude young children engaged in explicit sexual behavior." (Emphasis added.) Congressional Record, Senate, October 18, 1986, S. 17296. (Senator Roth would later join a chorus of Senators who claimed disingenuously that the law was intended to cover non-nude depictions.)

Finally, whenever the Supreme Court has used the phrase "lewd exhibition of the genitals," that phrase has denoted only exhibitions where the genitals were nude. A few leading examples:

In Miller v. California, 413 U.S. 15 (1973), where the Court assessed whether the phrase "lewd exhibition of the genitals" was constitutionally acceptable as a category of banned speech, Chief Justice Burger wrote, in the affirmative, that "Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places."
In Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750 (1974), where the Supreme Court held that the film "Carnal Knowledge" could not be "obscene" as a matter of constitutional law, Justice Rehnquist inquired whether the film contained hardcore sexual acts or "lewd exhibitions of the genitals" and found that "[w]hile the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including 'ultimate sexual acts' is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatsoever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standard."
In New York v. Ferber (1982), Justice White observed that the phrase "lewd exhibition of the genitals," which was under scrutiny in the context of child pornography, "is not unknown in this area and, indeed, was given in Miller as an example of a permissible regulation." The Supreme Court knew that the phrase meant, as Justice White stated, "visual depictions of children ... lewdly exhibiting their genitals" and went on to admonish the New York Courts from widening "the possibly invalid reach of the statute by giving an expansive construction to the proscription on "lewd exhibition[s] of the genitals." (How the Supreme Court ended up permitting the federal courts to do that in United States v. Knox will be examined below.)

Nowhere in the entire legislative history of the child pornography law, as amended over a period of fourteeen years was there any discussion by anyone which would indicate that images of fully clothed minors not otherwise engaged in hardcore sexual conduct were intended to be criminalized. Moreover, the extensive discussions regarding the term "sexually explicit conduct" reflected the unanimous view that "lewd exhibition of the genitals" was a type of nudity. Until the Third Circuit's decision in United States v. Knox, no authority had ever put forth the propostion that images of minors posing in bathing suits, leotards or underwear could qualify as "child pornography."

Jurisprudence Before Knox.

Prior to the Knox case, no one had ever been indicted or convicted for making, let alone receiving or possessing, depictions of minors whose genitals and pubic areas were fully covered by clothing. Every case involving allegations of child pornography involved depictions of minors engaged in actual sexual conduct or whose genitals or pubic areas were nude and exposed to view.

The sole authority relied on by the Third Circuit for its finding that "lascivious" depictions of minors included depictions in which the minor's genitals are fully covered was United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986). In Dost, the court outlined six factors ("among any others that may be relevant in the particular case") to be applied in determining whether an exhibition of the genitals or pubic area is "lascivious." Those factors included such considerations as where and by whom the photograph was taken, the focal point of the image and the demeanor of the subject. The fourth Dost factor, "whether the child is fully or partially clothed, or nude," according to the Third Circuit, "rests on the implicit assumption that a clothed exhibition of the genitals is criminalized under the statute." U.S. v. Knox, 977 F.2d at 823.

The Third Circuit's risible conclusion is based on two intentional errors. It must be observed at the outset that depictions of clothed minors were not at issue in Dost. Both girls photographed in Dost were "totally nude": the first was photographed on a bed "in a variety of positions ... with her genitals and breasts fully exposed;" the second was photographed on a nude beach in a supposedly contorted pose so that "[h]er pubic area is completely exposed, not obscured by any shadow or body part." United States v. Dost, 636 F. Supp. at 833. The Dost court's discussion of the fourth factor makes crystal clear its belief that the statute required that the genitals actually be uncovered, i.e., nude:

For example, consider a photograph depicting a young girl reclining or sitting on a bed, with a portion of her genitals exposed. Whether this visual depiction contains a "lascivious exhibition of the genitals" will depend on other aspects of the photograph. If, for example, she is dressed in a sexually seductive manner, with her open legs in the foreground, the photograph would most likely constitute a lascivious exhibition of the genitals.... On the other hand, if the girl is wearing clothing appropriate for her age, the visual depiction may not constitute a "lascivious exhibition" of the genitals, despite the fact that the genitals are visible.

(Emphasis aded.) United States v. Dost, supra, 636 F. Supp. at 832.)

The Third Circuit's first error, then, was its choice to ignore the fact that the Dost court's entire discussion was premised on the subject's genitals being exposed -- i.e., possibly only partially covered (and therefore partially nude), but certainly not fully covered by clothing.

The second error was the Third Circuit's misuse of the fourth Dost factor as a means to determine whether there has been an "exhibition," and not, as the Dost court fashioned it, as a way to decide whether a given exhibition of nudity was "lascivious." In other words, the Dost factors applied only once it was already established that there was an exhibition of genitals. The Third Circuit dispensed with that requirement entirely in order to jump to its desired conclusion. Judge Cowan would have done well to pay heed to the Ninth Circuit court's distinction in United States v. Arvin, 900 F.2d 1385, 1391 (9th Circuit, 1990):

In formulating an instruction defining "sexually explicit conduct" under Section 2256(E)(2), the Court, of course, must find that the pictures visually depict the minor's genitals or pubic area. This is the threshold element contained in the [statute], distinct from the additional requirement that the depiction be "lascivious."

The meaning of the Ninth Circuit's analysis is clear. By using the Dost factors to determine whether there has been an exhibition of the genitals, the Third Circuit was pulling itself up by its bootstraps.

Judge Cowan well knew what he was doing. In 1989, as the author of the Third Circuit's opinion in United States v. Villard, 885 F. 2d 117 (3d Cir. 1989), he held that the child pornography statute "requires more than mere nudity, because the phrase 'exhibition of the genitals or pubic area' ... is qualified by the word 'lascivious.'" In Knox, Judge Cowan re-wrote history by ruling that the statute never required nudity at all.

A Brief Glimpse of Sanity.

When the Knox case first went to the Third Circuit, the issue of whether fully covered genitals could be an "exhibition" within the meaning of 18 U.S.C. Section 2256(2)(E) was not at issue. In fact, the District Court had found Knox guilty by ruling that the "innermost portion of the upper thighs," which was exposed in some of the images on video, constituted part of the genitalia. After Knox's lawyers brought in an expert in anatomy who laid that theory to rest, the government replied, without citing a single case or even making an argument, that no one could "seriously contend" that "lascivious exhibition of the genital area" required nudity.

After the Third Circuit affirmed Knox's conviction on the government's new theory, his lawyers filed for and were granted Supreme Court review. Before the case was briefed by the parties, however, Clinton became President and Drew S. Days 3d became Solicitor General, the official responsible for making the government's arguments before the Supreme Court. Days did something extraordinary: he changed sides.

Days' brief, filed with the Supreme Court on September 17, 1993, frankly admitted that the Third Circuit "erred in holding that simply focusing on the midsection of a clothed body part may constitute an 'exhibition' of the unrevealed body parts beneath the garments." The government also told the Supreme Court that the legislative history of the statute had been clarified "in order more clearly to delineate 'what types of nude portrayals of children were intended to be encompassed within this definition'."

Days went on to propose a middle way which would criminalize depictions in which fully covered genitals or pubic areas were "discernible either through or beneath the clothing so that it can fairly be said that the depiction was an 'exhibition' of the body parts rather than a depiction of the clothed area of the body." Specifically, Days argued, "'exhibition of the genitals' must require that the area be visible, either through sheer or very tight material or with no clothing at all." Furthermore, "lascivious" must mean "a child lasciviously engaging in sexual conduct as distinguished from lasciviousness on the part of the photographer or consumer."

Days' brief sent the right wing into a frenzy. When the case was first accepted for review by the Supreme Court, standing behind the (then) Bush Sr. Justice Department was a "conglomeration of right-wing religious and anti-pornography activists, including a number of former officials of the Reagan and Bush Justice Departments." Now they had been abandoned. Senator Roth (the very same quoted above from 1977 and 1986) lied profusely on the Senate floor, proclaiming that "[m]uch or even most of the Justice Department's child pornography prosecutions would have to be dismissed under this new standard." Before the Justice Department could advise Congress that there were no such cases pending or even contemplated under the Third Circuit's theory, Senator Roth led the charge for the Senate to pass a unanimous, non-binding resolution condeming Days' brief and insisting that the Congress had always intended to criminalize depictions of fully clothed minors. Not long after, the House passed a similar resolution by a vote of 425-3.

The Supreme Court Ducks.

Rather than decide the case, the Supreme Court sent it back to the Third Circuit on November 1, 1993, with instructions that the Third Circuit should reconsider the Knox decision in light of the government's change of position. The government believed Knox would eventually be cleared. As the New York Times reported:

The order that the Court issued today instructed the Third Circuit, which sits in Philadelphia, to reconsider the case in light of the Government's current position. Before the appeals court does that, however, Federal prosecutors are likely to drop the prosecution. Government lawyers who have seen the tapes at issue have said privately that they fall well below the standard for prosecution described in the Government's new definition.

(Reproduced in the Congressional Record, S14977, November 4, 1993.)

Following that report, however, President Clinton chastised Days in public and asked Attorney General Janet Reno to take charge of the case. Reno reverted to the government's earlier position, the Third Circuit re-affirmed its decision with still more distortions, and Knox went to jail for five years. Knox's lawyers again asked for Supreme Court review, but the Court denied it without opinion.

[Blackwhite] means also the ability to believe that black is white, and more, to know that black is white, and to forget that one has ever believed the contrary.

What Knox Was Actually Convicted For

Seized from Knox's home were three videotapes, each two hours long, which contained up to several dozen sequences from a few to fifteen minutes in length. The sequences were dubs made by Knox from videotapes sold by The Nather Company, together with clips from movies.

Shown in the videotape sequences were amateur models in poses no different from what would commonly find in fashion magazines such as Vogue or Seventeen, or seen on television in gymnastics meets, or on Star Search or America's Funniest Home Videos. There were also clips of children outdoors horsing around, sitting in parks and swinging on swings. Their apparel, including leotards, short shorts and, for older teenage models, skimpy bathing suits, frilly socks and biker shorts with lace trim was utterly commonplace and appropriate to the ages of the minors wearing them.

But for one sequence, no girl depicted in the videotapes is engaged in conduct which could be characterized as even provocative. Any sexuality in the videotapes is implied, sometimes by the natural or feigned sensuality of the model, sometimes by the model's manner of dress (e.g., the skimpy bathing suits worn by 16 and 17 year old models) or by the videographer "zooming in" on the girls' bare legs and midsections. The "panty flashes" which Knox himself noted on the videotape boxes are nothing more than a model fluffing the hem of her skirt or the videographer moving lower or shifting position in an attempt to catch a glimpse of the model's underwear. In reality, the minors on the tapes are doing nothing (whether at the direction of anyone or of their own accord) which someone standing five feet away would consider "lascivious."

The only sequence on the videotapes in which a girl intentionally opens her legs to show her panties is an excerpt from the French movie, Le Grand Chemin (the Grand Highway - 1988), a general release film which had a successful run at foreign film houses in the United States, was available on video and was even shown on Bravo on January 24, 1994. There is no question but that the 11-year-old girl in the movie was directed to spread her legs in order to show her panties, as witnessed by the dialogue, translated in the subtitles which flash across the screen (and reported here verbatim):

    Dirty boy! Why do you always stare at my panties?

        I don't. You keep showing them.

    Liar! I saw you when I was in the tree! Admit it, you're curious! You've never seen a girl's wee wee, I bet!

        Yes, I have

    I bet you haven't. Want me to show you?

        Yours? Are you kidding?

    Come and see! Free of charge! Promise not to tell a soul!

The Third Circuit didn't even note the sequence in either of its two decisions. (Clips of Le Grand Chemin can be found on youtube and an image search in Google, at least as of the date of this posting, will turn up a jpg from the above-mentioned scene.)

End of Part One.

Quotations and material for this article were taken from:

Petition for a Writ of Certiorari, Stephen A. Knox, Petitioner vs. United States, Respondent, In the Supreme Court of the United States, October Term, 1992.

Brief of Petitioner, Stephen A. Knox, Petitioner v. United States, Respondent, In the Supreme Court of the United States, October Term 1993.

Brief of Appellant Stephen A. Knox, On Remand from the United States Supreme Court, United States Court of Appeals for the Third Circuit, United States v. Knox, Docket No. 92-7089.

Stanley, Lawrence, "The Child Porn Storm: How One Curious Legal Case Caused a Capitol Hill Stampede," Washington Post, January 30, 1994

Additional background materials:

Greenhouse, Linda, "U.S. Shifts Stance In Court Appeals: Clinton Team at Justice Dept. Rejects Bush Positions on Rights and Smut Law," New York Times, September 28, 1993, p. A22.

Whelan, Ed, DAG Nominee David Ogden and Knox v. United States, Part 1, National Review Online, February 5, 2009. http://www.nationalreview.com/bench-memos/50475/dag-nominee-david-ogden-and-i-knox-v-united-states-i-mdash-part-1/ed-whelan

"Pornography Law applies even if child model is clothed, court rules," Wall Street Journal, October 20, 1992, p. B5.

Jaffe, Herb, "Appeals court ruling tightens kid porn law," Star-Ledger, Nov. 13, 1992, p. 12.

"Against All Common Sense"

2010-10-13T11:55:00.000-07:00

An online Swedish site called The Local reported on July 25, 2010 that a translator was fined for possession of drawings of fictional children engaged in imaginary sex. According to The Local, the man told the court he downloaded 51 images in order to stay up to date with the latest developments in the Japanese comic genre. (Sankaku Complex seems to be better informed about the case. Apparently there were only 30 images, the remainder being cached or backup versions.)

As also noted by Sankaku Complex, the translator's defense was probably one of the few available for the drawings, which are criminal under Swedish law regardless of whatever artistic value they might have. Thus one should not conclude that the translator was claiming that this was his only purpose. Surely, he also enjoyed the material to some extent.

Nevertheless, his defense failed to impress the judge, who saw the issues as "thorny" because, he said, “[t]here is a clear conflict between freedom of speech on the one hand and general regulations regarding children’s rights on the other.” What children's rights? What children? "The aim of the law," the judge said, "is not just to protect individual children but children in general."

This is rhetorical nonsense, albeit typical of child-savers in Sweden, Germany and other European jurisdictions, who conflate "rights" with "protection," while de-valuing the concept of individual rights. While an individual child may have the "right" to be protected from acts perpetrated against him or her, such a right cannot include censoring the expression of all the ostensibly evil thoughts in the world (whether sexual or otherwise) on the chance the child might be in some way affected by them. As a matter of principle, without a proximate harm to a particular individual, there can be no just cause. Textual accounts of adult-minor sexual activity are not yet covered by the law, but based on the logic of the censors, writing, selling and reading Nabokov's Lolita would constitute criminal acts.

The translator’s lawyer, Leif Silbersky, expressed surprise at the ruling and lodged a formal appeal on behalf of his client. “It goes against all common sense," he said. "These are just drawings; no children have been harmed.”

(Image by Chararin, from his website / blog.)

America's vindictive criminal justice system

2010-10-10T21:24:00.000-07:00

It's hardly a secret that the United States has a higher incarceration rate than just about anywhere in the world, with the longest sentences and some of the harshest prison conditions. By intention, the American system succeeds not only in humiliating and emasculating the convict at every opportunity, but also in crushing the very spirit of the convict and his or her family.

Excessive sentences and sentencing enhancements, as well as post-release supervision periods (subjecting ex-convicts to a web of "gotcha" provisions like periodic drug testing, random house searches at any time, day or night, restrictions on reading material, etc.) and sex offender registration requirements serve no rational purpose. Their aim is to make the dehumanization of the convict permanent, as well as to satisfy the thirst of a public which has fooled itself into thinking that harsher and ever more vindictive punishments will make their society safer, better and more just. Indeed, many Americans seem to love this very ugly aspect of their culture. One sees it celebrated every day on television and in the press.

In the arena of drug and sex offenses, opposition is mounting, but the injustices grow daily.

Ga.’s sex-offender laws an injustice themselves

TX - When Ever-Expanding Penalties for Sex Crimes Create Injustice

The other side of sex offender laws, injustice and societies flaws.

Sex offender registry laws driven by fear, not reason

Sex offenders victimized by justice system

Sex Offenders Set Up Camp

Cruelty and our criminal justice system

The Moral Equivalent of Adolf Hitler?

2010-07-21T19:55:00.000-07:00

One article alleging that Larry Rivers' film was "child pornography" wasn't enough.

Then came the follow-up -- not comments on the New York Times website where a diversity of views would certainly be expressed -- but one Op-Ed piece and one letter chosen by the New York Times to represent a particular viewpoint.

In the Op-Ed piece, Dani Shapiro took the position that there is no issue of any importance here, just a victim victimized by dirty pictures taken by her father. In the letter dated July 21st, the writer claimed outright that the film is "child pornography." Yet neither of these chosen writers have ever even seen a single frame of the film. This is how the Times vilifies by proxy. The Times fears that it will take a lot of flack from the art community and intellectuals if it expresses these ideas itself, so it has guest opinions do it. Bravo.

Actually, the July 21st letter took matters even further. Not only was Rivers' film called "child pornography," but Rivers was compared to Hitler and Stalin.

QUOTE: "The movies of Larry Rivers amount to child pornography using his own daughters and should influence the view of such work as “art.” (New York University has wisely declined to accept the films from the Larry Rivers Foundation.) When an artist puts his or her gifts at the service of immoral ends, shouldn’t we reconsider our opinion of that artist’s thinking, the value of his or her contribution to civilization? What about artists and writers who were devoted supporters of mass murderers like Hitler and Stalin? Should they retain their artistic standing?" UNQUOTE

This is idiotic. It's easy for hyper-moralists to sit around in 2010 and decide that Rivers should have listened to his daughter's complaint(s) or seen her discomfort, but no one knows the context in which any of that occurred, where Rivers' wife stood on the matter at the time, or anything about the family dynamics. We do know that in the mid- to late-70s things were quite different. It was a sexually more open time. Some artists did extreme things. Do you think that Pretty Baby could be made today? Or Garry Gross's photos of Brooke Shields? Does anyone remember Jackie Livingston making art out of photos of her son masturbating? There was a flap even then, but she didn't go to jail.

Playing the Hitler card is something only people with NO sense of perspective -- or history -- do.

Moreover, despite what Dani Shapiro says, she DOES advocate a slippery slope. Are we now to start destroying artwork whenever someone objects to being portrayed in it? What about Lewis Carroll, who used his art to get close to little girls? Shall we ignore his photography and writings? (The constant backpedaling by academia claiming that Carroll wasn't a "pedophile" is funny, if not pathetic.) Shall we stop listening to the music of Phil Spector because he's a murderer? (Or Gary Glitter for that matter.) Is Road Warrior suddenly a terrible film because Mel Gibson hates Jews? (Or is it a terrible film for artistic reasons?)

Ironically, there is NOW one very good reason for the Larry Rivers Foundation to preserve the film for posterity, suppressing it only for the disgruntled daughter's life: to vindicate Rivers of charges of being a "child pornographer," the moral equivalent of ADOLF HITLER.

Much Ado About Larry Rivers' Video

2010-07-14T07:07:00.000-07:00

When the New York Times ran a story on July 7th about Larry Rivers' video of his two daughters' developing bodies, it made an editorial choice not to allow reader comments. "Artist’s Daughter Wants Videos Back," however, left a few issues open.

Mainly there was the false claim by Rivers' daughter, Emma (the one who wants to destroy the video), that the video was "child pornography." Of course there was no sexual conduct or lascivious exhibition of the genitals contained in it, but that particular accusation is always meant to stop all discussion. After all, who could be for "child pornography"? When the Times did publish a reader's letter responding to the article on July 13th, it took sides by promoting this view. "[Even] the loftiest of abstract causes cannot trump the rights of the individual," the letter read. "Child pornography is still child pornography even if made by an artist, and these women were victims.What good is having such videos in the archive if it is at the expense of basic human compassion?" Although the Times is editorializing here by proxy, this is not the first time that it has engaged in "child pornography" polemics. (Read about reporter Kurt Eichenwald's crusade a few years back.)

In fact, the focus of the videos was on the the girls' breasts, not their genitals, and addressed the girls' feelings about them "and whether boys have started noticing them." As the Times article noted, "[i]n some scenes Clarice Rivers [the artist's wife] appears with her daughters, displaying her own breasts and talking about them." There were also close-ups, or at least a close-up, of one daughter's genitals, but neither the content nor the context was pornographic, let alone "child pornography." There were no "victims." Frames from the video can be seen in Gerard Malanga's book, Scopophilia: The Love of Looking. (The images reproduced there are really nothing to get worked up over.)

According to the Times article, "[i]n a voice-over Rivers says that he made the film over several years in spite of 'the raised eyebrows of society in general and specific friends and even my daughters — they kept sort of complaining.' On screen both girls appear self-conscious as they grow older, and Emma in particular hardly speaks." However, this raises a question of privacy, not crime.

Appropriately, New York University, which purchased the Larry Rivers archives of which the video is a part, said that it will keep the video sealed during the daughters’ lifetimes. This is enough. Retention of the video in the archives and access following the death (of the disgruntled daughter in particular) raise no questions of "basic human compassion." There is absolutely no reason why anyone should credit the disgruntled daughter's claim that the videotaping "contributed" to her anorexia at 16 and "wrecked a lot of my life actually." This is the kind of nonsense that people in the United States learn in "therapy." Even if it were true, this would not be a reason to destroy the video, which will only contribute to an understanding of Larry Rivers, the artist, and his times.

Veneno para las Hadas (Poison for the Fairies)

2010-06-25T18:36:00.000-07:00

(Directed by Carlos Enrique Taboada, Mexico, 1984.) With Ana Patricia Rojos as Verónica and Elsa Maria as Flávia.

Another fine film available on youtube. (Part 1 begins here.)

On her first day at a new private school, Flávia, a proper little girl with a sensuous mouth and a pronounced widow's peak, befriends classmate Verónica, who tells her she has a spider's name. Verónica, a pretty, moon-faced blonde with a grave demeanor, lives with her Nanna and grandmother. She is obsessed with being a witch, something Nanna only seems to encourage, albeit inadvertently, by filling the little girl's head with stories. Flávia's father, on the other hand, assures his daughter that witches don't exist.

Just the same, Flávia asks Verónica to put a curse on her piano teacher, Madame Rickard, whereupon Verónica summons the devil over a page of Handel smeared with a few drops of each of the 11-year-olds' blood. At Flávia's next lesson, the piano teacher keels over from a heart attack. (The woman had been quite ill.) As if that weren't enough, Flávia takes the blame at school when Verónica brings a garden snake and scares the daylights out of one of the girls, and is punished for it. Traumatized, Flávia tries to rid herself of Verónica's friendship, but Verónica won't hear of it. Playing on Flávia's guilty conscience and fear of the supernatural, Verónica threatens Flávia that the devil will get her if she tells any one about the curse. Later, she informs the gullible girl that she must do whatever Verónica tells her to -- forever.

During their school break, Verónica insists on going off with Flávia and her parents to their large estate in the country, a stone mansion overlooking a gloomy waterfall. Various dilapidated out-buildings, including an old barn dot the landscape, and the gothic mood is completed by a church in ruins, an abandoned graveyard and a physical environment that is simultaneously overgrown and decaying. Flavia's parents aren't happy taking Verónica along with them, but they accede to their beloved daughter's request.

It is there that Verónica decides that she and Flávia are going to brew a poison for the fairies -- the witches' enemies -- that Nanna told her about. To that end, the girls collect a large spider, a frog, a lizard and a snakehide, which they steal from the caretaker's shack, and stash it all in a wide tin basin in the barn's hayloft. When Flavia's father catches them out in the graveyard at night loosening a cross from a grave, however, Flavia spills the beans.

Angry at the betrayal, Verónica resolves to make the potion all by herself, but Flavia begs her and Verónica relents, at a price: the possession of Flavia's beloved dog, Hippie, and the promise that she'll never ask for him back (under pain of having her eyes plucked out by the witches). It proves to be too much for Flavia, who takes her revenge the following night.

The film's delight resides in its almost fetishistic touches. Although a few witches' faces appear in dreams, none of the faces of actual, living adults appear frontally (the sole exception being that of Verónica's grandma, who is shown very briefly when Verónica plays a nasty trick on both Flávia and grandma). Instead, the camera shows disembodied hands cutting vegetables, legs and feet descending a staircase, the back of the head of an adult seated in a stuffed chair. Reality is constituted by the girls' imagination in which adults only have a fleeting or shadowy presence.

As for the girls, they are always in clean, crisply ironed clothing: school uniforms or, more often, pretty dresses, often with lace collars, eyelet-bordered aprons or puff sleeves, or pleated skirts. Both girls have an endless supply of white socks, ankle and knee-high, and wear black Mary Janes (Flavia) or white pointing dress shoes (Verónica) even when they're traipsing around in the mud. Their hair is aways neatly tied or coiffed, curled at the end, or in braids tied with ribbon. Their cheeks are rouged, lips pinkened even at bedtime, giving them the glow of pampered pre-pubescence. Flávia's family is supposed to be very rich, but Veronica's home is well-appointed and her clothing is no less lovely than Flávia's.

Following cinematic conventions denoting girlhood innocence, there are scenes of bath and bedtime (very chaste) and flashes of knickers. The camera sometimes lingers on the girls' legs, as when Flavia is paddling a boat and her dress slides midway up her thighs, or when the girls go up and down the ladder to the hayloft.

A nice touch, too, occurs when Flavia attends Madame Rickard's rain-soaked funeral. Dressed in virginal white from head to toe and illuminated by bright light, Flavia stands in stark contrast to the adults around her dressed in their black clothing with their faces hidden by black umbrellas. When the casket is opened briefly to show the dead woman's face, Flavia promptly faints onto the muddy ground. Innocence is easily sullied.

The original score by Carlos Jimenez Mabarak is modernist and by turns dramatic, lyrical and creepy. Notice the waltz as Flavia sets fire to the barn. Perfect for gothic horror.

The youtube version has no subtitles, but as with Maroa, you can download the subtitles to Veneno para las Hadas here. (Be sure to click on the link that says "111x/srt," which is a free and instantaneous download of the file.) The DVD of the film is currently out of print but used copies can be found online.

Carr v. US: A Tiny Limitation on Federal Power

2010-06-12T21:20:00.000-07:00

Carr v. US
US Supreme Court, No. 08-1301
Decided June 1, 2010

The Sex Offender Registration and Notification Act (SORNA) was passed in 2006 as part of the Adam Walsh Child Protection and Safety Act. Among other provisions, it established a federal criminal offense for anyone subject to SORNA's state registration requirements who moves to another state and fails to register or update his or her registration.

Thomas Carr, the petitioner in this case, was convicted of a sex offense in May 2004 in Alabama. In late 2004 or early 2005, he moved to Indiana and neglected to register there as a sex offender. In July of 2007, he "came to the attention of law enforcement" after he was "involved" in a fight (whatever that means), whereupon the federal government stepped in to prosecute. Carr received a 30-month prison sentence but preserved his right to appeal. Supreme Court review was granted due to a dispute among the federal Courts of Appeal. Some, like the 7th Circuit where Carr's conviction was upheld, applied SORNA to pre-enactment travel, while others applied the law only to post-enactment travel.

The Carr decision continues in the recent tradition of confounding the liberal-conservative divide on the Court when it comes to sex offenses and offenders. Justice Sotomayor wrote the majority opinion, joined by Chief Justice Roberts and Justices Stevens, Kennedy, Breyer and, in substantial part, Scalia. Dissenting were Justices Alito, Thomas and Ginsburg.

No substantive issue is addressed in the case, however, and it doesn't relieve any sex offender from state registration requirements . It represents only an exemption from federal (but not state) prosecution for those who, following their convictions, changed their states of residence prior to 2006.

Essentially Sotomayor's majority opinion is a rather dry analysis of the language of the statute: by its wording, the law doesn't appear to cover pre-2006 travel. Read as a matter of common sense, rather than with ostensible Congressional purpose in mind, SORNA plainly limits federal prosecution to instances where, after SORNA's effective date, a sex offender travels and fails to register. The use of the present tense "travels," Sotomayor writes, encompasses only travel subsequent to the effective date of the Act. Anyone who traveled before the effective date of the Act should be prosecuted, if at all, by the states. Indeed, since 1994 until the passage of SORNA, prosecution for non-compliance was not merely relegated to the states, but mandated for the states by Congress. (This may well explain why Justice Sotomayor's argument appealed to C.J. Roberts and J. Scalia.)

The dissent would have put Congressional purpose over plain language and act as a "gotcha." If the statute used only the present tense when it included in its ambit anyone who "travels," what Congress really meant, according to the dissent, was anyone "who has traveled." That is, the travel could happened at any time and the only relevant question under the Act was whether the defendant failed to register after it became law.

It is perhaps worth noting that the dissent was motivated, as the majority was not, by the same misinformed sensationalism that underlies the registration laws themselves. At the time SORNA was passed, Justice Alito pointedly writes, "the Nation had been shocked by cases in which children had been raped and murdered by persons who...were convicted sex offenders" and "100,000 convicted sex offenders -- nearly one-fifth of the National's total sex-offender population -- remained unregistered."

A little perspective might have helped. The number of children killed by strangers during the commission of a sexual crime didn't then, and still doesn't, exceed about 50 per year and only a small percentage of those murders is committed by prior offenders. By contrast, the number of released sex offenders at the time SORNA was passed was around 500,000. There are now more than 800,000 registered sex offenders and no sign at all that registration correlates with crime-solving or rates of recidivism, let alone lust murder. In short, citing the Congressional hysteria which underlies a law is a doubtful method for resolving questions of jurisprudence.

Unfortunately, not even the majority in this case possesses the requisite perspective to do justice in the broader sense. While it may have been a lucky day for Thomas Carr, the Supreme Court Justices of both the majority and dissent have proven themselves perfectly capable of result-oriented jurisprudence -- that is, deciding cases not based on principles, but on getting the desired result -- when it comes to sex offenses and offenders. (A prime example of result-oriented jurisprudence is defining post-conviction so-called "civil" incarceration as a public safety measure and not the punishment that it is, so as to avoid the centuries-long rule prohibiting the application of ex post facto laws. The majority in Carr, incidently, avoided the ex post factor argument, as they are entitled to do, by interpreting the statute to cover only post-enactment travel.)

The struggle for justice will not be found in the courts or the Supreme Court, but on a grassroots level, where the larger issues of what kind of society we want to live in can be addressed. For it is only through a fundamental cultural shift which values human solidarity over vindictiveness that change can be expected in our legislatures and justice be demanded from our highest courts. These issues affect not only ex-convicts, regardless of their crimes, but all working people. It will be quite a project though. The fear and loathing that characterize the American discourse run deep and the money which promotes that discourse seems to know no limits.

Drawing Without Models

2010-06-12T20:58:00.000-07:00

People who responded to the editorial on US v. Comstock (regarding the injustice of so-called civil commitment) wondered 'why on earth' were drawings by Brian Babinski included? One really needs to read (rather than just react to) the article to understand. The very point of showing the drawings was that Babinski was incarcerated in part based on his drawings.

Yet Babinski didn't abuse anyone to produce his drawings. He didn't even use photographs. People who have seen him work (including a high school art teacher) know of the talent he had (and perhaps still has) to create faces of great beauty -- albeit highly idealized -- purely out of his imagination. Indeed, while in jail in late 1995 and early 1996, awaiting extradition to California, Babinski produced some 100 drawings which absolutely could not have used photographic referents. (In the late 1990s, Alessandra's Smile sold giclées of many of them.) Incidentally, Babinski didn't spend a very long time on each drawing. He worked with a fast hand, a pencil, a smear stick and Arches Block 300 gsm Cold Pressed paper.

It was commented by one reader via email that Babinski should be locked up just for his drawings alone. What is one to say, then, of Balthus (who used models), Hans Bellmer, or Egon Schiele (who did suffer imprisonment in the early 1900s due to his drawings) or the many contemporary artists who depict girls naked? The Babinski drawings above have been cropped, but none of the three are as graphic as this image by Balthus, which is on the website of the Philadelphia Museum of Art. (To be sure, Babinski also made explicitly sexual drawings, not just nudes.)

This is not a criticism of the Philadelphia Museum of Art. Far from it! This is a criticism of artistic illiteracy and bigotry which prompts calls for not just censorship but permanent incarceration for crimes not committed. (One would think that exile should be enough, but Americans have an ever-growing tendency to want to see their political and moral outlook universalized.)

Maroa (2005)

2010-06-06T14:20:00.000-07:00

Directed by Solveig Hoogesteijn. Venezuela's Official Selection for the 79th Academy Awards for Best Foreign Language Film.

Maroa (Yorlis Domínguez), 11, ostensibly lives with her grandmother, but spends most of her time on the street, stealing, selling used porn magazines, as well as cards depicting saints, and shilling for her grandmother when the latter poses as a fortune teller. Maroa is illiterate, but drawn to music, including classical music. (She even steals the jewel case to a Deutsche Grammophone CD.)

When Maroa's "boyfriend," the pubescent leader of a gang of boys, goes on a killing spree, Maroa is arrested and placed in a youth detention center which resembles not so much a lockup, but a well-appointed private school. There are plenty of musical instruments to go around and lessons facilitated by a Spanish orchestra director. Although Maroa is fiction, the orchestra program in the detention center is real enough -- a part of El Sistema (the National System of Youth and Children's Orchestras), the government-sponsored musical training program in Venezuela which has provided instruments and musical training to several hundred thousand children, a large number of them from poor families.

Things don't go well for Maroa in juvenile lockup until the orchestra director, Joaquin, hears her perfect-pitch singing as she mops the floor in the hallway outside the practice room. Joaquin gives her a clarinet and invites her into the orchestra, where she encounters the need for discipline for the first time in her life. Maroa also falls in love with Joaquin. Up to a point, the feelings are reciprocated. When he's around her, he does appear to be a man in love. (It reminds me of evolutionary psychologist Don Symon's conclusion that "Male mating psychology may turn out to include sentiments, which are elicited by very young females, that are not exactly sexual, but not exactly not sexual either....")

Unfortunately, Maroa's life outside lock-up, as well as the villian of the story, police agent Ezekiel, a born-again Christian thug who actually tries to rape Maroa shortly after her arrest, intrude on her musical development. Ezekiel wants to know where Maroa's boyfriend sleeps and continues to pressure, threaten and, when he can get away with it, manhandle, Maroa, but she won't be a rat. Finally, scared for herself and her grandmother after Ezekiel threatens to kill her, Maroa flees after the orchestra's public performance.

On the street, she is hunted by Ezekiel and by the story's hero, Joaquin, while she finds a way to survive. Eventually she finds Joaquin.

"I'll clean, wash, cook and you can fuck me," she says, causing Joaquin to sputter. But Joaquin isn't interested in any of the three, and especially not the latter. He quite pointedly rejects her when she tries to seduce him in make-up and his ex-girlfriend's lingerie. At first he wants Maroa to go back to the detention center - "I'll be in trouble if they find out you're here," he says, but eventually relents, telling her "Stay and it's in God's hands."

Leaving things to God usually doesn't go well and nor does it here. As a birthday present, Maroa gives Joaquin a night with her friend, Yuleisi, an underage teen prostitute (played by Greysi Mena, currently the star of a Venezuelan telenovela). Joaquin is delighted. She looks to be about 14 or 15, but that doesn't seem to be much of a consideration. Joaquin just likes what he sees. ("Hey, gorgeous. How old are you?" he asks. "Always the same question," Yuleisi replies. "23 and lived to the fullest." Not exactly a conversation that would exonerate Joaquin in court.) Not surprisingly, Ezekiel has been watching the apartment and he and his swat team burst in to catch Joaquin in flagrante and to take Maroa away. Joaquin is deported to Spain instead of jailed, but before he leaves, he makes Maroa promise to continue with the orchestra. That she does...and six years later is a glorious soloist.

This was not a low-budget film, so the production values (especially design and color) are as first rate as the story. The lead actress, Ms. Domínguez, is a natural. (As to how she was discovered, see the Wikipedia page for Maroa.) For her role as Yuleisi, Ms. Mena won the Municipal Film Prize of Caracas in the category of Best Supporting Actress. (At left, Joaquin eyes Yuleisi before taking her to bed.)

You can watch the film in Spanish in its entirety (in 9 parts) on youtube, starting here. You can also buy a copy of the DVD (with English subtitles) on Amazon or, if you live in the US, watch it at Amazon online.

If you watch the youtube version and don't speak Spanish, the subtitles are available here. You won't be able to watch them with the film, but you can read them afterward and everything you miss will become abundantly clear. (You can open the subtitle file in Notepad or something similar).

So, an 11-year-old who tries to seduce a man in his 30s and a 14-year-old who gives herself to him enthusiastically and playfully, to his complete delight. Evidently, at least in 2005, Venezuela wasn't aware that anti-ped is the new hetero.

Federal Jurisdiction Extended to "Civil" Commitment of Sex Offenders

2010-05-20T20:15:00.000-07:00

United States v. Comstock (08-1224, decided May 17, 2010 by the U.S. Supreme Court) [1]

This jurisdictional challenge to the Federal sex offender "civil" commitment law was brought by 5 prisoners, including Graydon Comstock. Comstock was six days away from completion of a 3-year sentence for receiving child pornography in 2006 when he was "certified" by then-Attorney General Alberto R. Gonzales as a "sexually violent predator." Of the 5 respondents in this case, three had served their sentences following guilty pleas under federal law for receiving or possessing child pornography. The fourth had served his sentence after pleading guilty to sexual abuse of a minor, while the fifth was charged, but not convicted, for sexual abuse of a minor, because he was found incompetent to stand trial.

Across the Internet on blogs and forums (other than those where lawyers congregate), the case was understood as the Supreme Court upholding civil commitment laws, but the Court already did that more than a decade ago.[2] Comstock is about whether the Constitution grants the Federal government jurisdiction to have its own civil commitment law.

A 7-vote majority of the Court found for jurisdiction. Justice Breyer delivered the majority opinion of Court, joined by Justices Roberts, Stevens, Ginsburg and Sotomayor. Justices Kennedy and Alito filed separate concurring opinions. Justice Thomas filed a dissent, joined in major part by Justice Scalia.

Justice Breyer begins his majority opinion with a look at Art. I, §8, clause 18 of the Constitution, which grants Congress the power to pass laws which are "necessary and proper for carrying into Execution" the powers vested in the federal government by the Constitution. In other words, every law enacted by Congress must be derived from some power constitutionally granted to the federal government and not reserved to the States. Continuing to beg the question, Justice Breyer notes that the government "must also be entrusted with ample means" for the execution of its powers. Thus, Congress may enact laws that are convenient or useful" or "conducive," i.e., "rationally-related," to the government's "beneficial exercise" of its powers.

Having said nothing of substance or particular meaning, Justice Breyer begins what may be fairly described as an exercise in intellectual dishonesty. As he sees it, the federal civil commitment law is a "health care" statute consistent with a long history (going back to the mid-19th century) of statutory and legal precedent concerning federal civil commitment of "the insane." What Justice Breyer hides in his discussion is the fact that in those historical examples -- hardly a proud legacy to begin with -- federal civil commitment only ever covered the period in which the prisoner was waiting to be charged or during which he served his sentence. Never did it extend beyond a duly-served prison term.

Arriving in the present, Justice Breyer argues that civil commitment must be countenanced by the Court because after a few years of federal incarceration, some prisoners might not have a home state to which they will want to return -- that is, a place where they will have to register and be subject to state civil commitment laws. (All 50 states have civil commitment laws.) The logic is clear: the federal government must be able to keep these people from going to any state, or from leaving the United States entirely.

Justice Kennedy, who should really know better, makes a similar mockery of criminal justice and sentencing: "Having acted within its constitutional authority to detain the person," he reasons, "the National Government can acknowledge a duty to ensure that an abrupt end to the detention does not prejudice the States and their citizens." An "abrupt end to the detention" - is that what completion of a prison sentence is? An honest restatement of Justice Kennedy's words would be that a prisoner has no right to complete his sentence at all until the federal government says he does.

Lest no one is really convinced by the Justices' reasoning, the majority, in all three opinions, tell us that the civil commitment law should be of little concern to the public because its application is limited to a handful of people and carefully crafted only to ensnare the worst of the worst. Such arguments have been made before and they will be addressed further below.

Extraordinarily, only Justices Thomas and Scalia -- no friends to the convicted by any means -- got it right. "Under the Court’s precedents," Justice Thomas wrote, "Congress may not regulate non-economic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce." And more succinctly: "the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it" just because it is the pleasure of Congress to do so.

Is the civil commitment law really nothing to worry about?

Under the law, the term "sexually violent predator" is defined as someone "who has engaged or attempted to engage in 'sexually violent conduct' or child molestation,” and “who is sexually dangerous to others.” §4247(a)(5). “Sexually dangerous to others” means a person who “suffers from a serious mental illness” such that he would “have serious difficulty in refraining from sexually violent conduct or child molestation if released.” §4247(a)(6). (So-called "pedophilia" is precisely such a "serious mental illness" which satisfies federal law, despite the fact that the DSM doesn't define it as an illness at all.)

At first glance, it might appear, as one anonymous commentator on Sankaku Complex put it,

that the ruling merely provides for "truly dangerous sexual predators - i.e. the ones most likely to re-offend - to be kept from being a threat to society" and that the "typical child pornographer convicted under interstate commerce provisions would have to do something truly egregious for this ruling, and the law it supports, to impact him."[3]

Unfortunately this is a delusion. Like the "worst of the worst" who we were told were the only people ever sent to Guantanamo Bay, the notion of the "truly dangerous sexual predators" is part of the official mythology of the carceral state. Certainly a few such people exist, but civil commitment laws, whether federal or state, are inimical to fundamental justice because no institution, expert or civil proceeding can be trusted with making a determination of who fulfills the criteria. The determination will always be under pressure to expand and it will expand in the federal system just as it has on the state level, as in the case of artist Brian Babinski.[4] "Civil" incarceration was born of politics and is subject to political manipulation as well as to application based on the personal animus of those who administer it.

In the United States, it was the victims' rights movement which led to a steadily upward drive in sentences and ever harsher treatment of prisoners. To put it plainly, the movement made vengeance a part of the criminal justice system, so that "victims' rights" (i.e., the personal interest of the victim) became synonymous with the public interest of maintaining public order and doing justice. In Europe and other places, victim's rights were viewed "from the start as primarily an extension of the welfare state."[5] Victims' rights groups in the United States wanted no association with the welfare state. Their main interest was (and still is) to steer the course of justice in an increasingly punitive direction. Their tool is framing the issue around horror stories and creating a "compelling image of a society held hostage to a growing number of depraved marauding criminals."[6]

This is a fundamentally reactionary view at odds not only with justice but also with a humane society.

It is perhaps easier to use a contemporary example of how rulers use a despised group of people which no one wants to defend to hack away at hard-won (and often under-appreciated until you need them) rights. Taking a page from the George W. Bush playbook, President Obama currently proposes to do away with Miranda rights for suspected terrorists, something that he calculates the public will buy notwithstanding condemnation from the ACLU and Glenn Beck. Once such a "limitation" is in place, further cancellations of rights may be considered. After all, the brunt of those cancellations will be felt not by the mass of the population, but personally, by individuals: not only people who are marginalized by their alleged association with "terrorists," but also those who are marginalized by race, class religion or sexual orientation.

This effect has long been visible at Guantanamo Bay. Bush & Co. told the American people that only the "worst of the worst" were brought there. Never mind that the prisoners were incarcerated without being able to respond to charges against them or that they were treated far outside the minimally civilized standards of the Geneva Conventions. Later it turned out that many hundreds of prisoners weren't the "worst of the worst" after all - in fact, they weren't even worthy of being tried before a kangaroo court of military justice. Instead they were to be released in the quietest way possible to hide the fact of massive human rights violations.

In a similar way, civil commitment laws ask the public to trust law enforcement authorities far too much. Determinations for life-long incarceration will be made not by juries in public proceedings under Constitutional rules, but by bureaucrats and their teams of professionals behind closed doors.

What is the evidence that these laws will or even can be applied fairly? All the evidence to date shows exactly the opposite. If there is a way to extend the law, enhance the power of law enforcement and ensnare an ever-greater number of people, prosecutors will find it and courts will approve of it. Child pornography starts out as a living record of child molestation. Less than a decade later it becomes a photograph of a girl in a mini-dress with her knickers exposed while she prances on-stage at a teen modeling contest. Eighteen-year-olds are jailed for having sex with their 15-year-old girlfriends. Teens are arrested for photographing themselves and sending the images to their friends. Sentences go from a few years to decades to life without the possibility of parole. Adults accused of having sex with minors are denied their Sixth Amendment right to confront their accusers in the courtroom under the guise of "protecting" the victim. See Justice Scalia's stinging dissent in Maryland v. Craig (1990) in which the Supreme Court eliminated the defendant's Sixth Amendment right because her accuser was a child.[7] And it cannot be said often enough that law enforcement officials have a long history of shaping, enhancing and even inventing victims' stories. Remember satanic ritual abuse?

And all the while the authorities responsible for these developments tell the public to trust them.

The Federal civil commitment law is readymade for manipulation. The conduct considered in making the determination for life-long incarceration need not be the subject of a prior criminal conviction: a defendant might have been acquitted at a criminal trial, only to have the court find by "clear and convincing evidence" that the act probably occurred, notwithstanding reasonable doubts. The determination may also be based on conduct for which no charges were ever brought, but which the government has "evidence" which is not subject to the limitations that prevail in a criminal trial -- for example, rules against self-incrimination, illegally seized evidence or hearsay. There isn't even a requirement that a sex act be completed to be the basis for "civil" incarceration. An "attempt" -- for instance, traveling across state lines to meet a law enforcement agent posing as or pretending to offer a minor -- is enough.

Make no mistake. Civil commitment is not mental health treatment and it isn't mere segregation from society. It's jail under horrendous conditions. As the New York Times described them in an article on March 4, 2007, if civil commitment units aren't merely special sections of prisons (as they are in most states), they nevertheless "look and feel like prisons, with clanking double doors, guard stations, fluorescent lighting, cinder block walls, overcrowded conditions and tall fences with razor wire. Bedroom doors are often locked ... and mail is searched by the staff for pornography or retail catalogs with pictures of women or children."[8]

It is interesting that on the same day that Comstock was decided, the Supreme Court held that juveniles cannot be sentenced to life for crimes in which no life was taken. One of the reasons given by the majority in that case is that most other civilized countries don't permit the punishment. Yet most other civilized countries don't permit life-long "civil" incarceration and certainly not to the degree it is practiced in the United States. Don't look for the logic, however. When the Court wants to reach a political result, many inconvenient truths may be ignored.

In the final analysis, civil commitment laws are not about protecting people or even reducing crime. They are about what kind of government a people want to be ruled by. Civil commitment laws "curb democratic freedoms and erode human solidarity. Their enforcement requires strengthening the state spying apparatus, including expanding the use of DNA banks, global positioning devices and 'criminal profiling.'"[9] To paraphrase the author of the foregoing quotation, anything that strengthens the hand of our rulers is a danger to everyone.

Justice constitutes the education of the human race. It must have no tolerance for mob revenge masquerading as populist common sense.[10]

Endnotes

[1] The complete decision is available at http://www.supremecourt.gov/opinions/09pdf/08-1224.pdf
[2] See Kansas v. Hendricks, 521 U. S. 346, 356–358 (1997); Kansas v. Crane, 534 U. S. 407 (2002).
[3] http://www.sankakucomplex.com/2010/05/18/usa-no-trial-needed-for-lolicon-life-imprisonment/#comments
[4] Brian Babinski pleaded guilty to sexually touching a child in California in the late 1980s. No force was alleged in the incident. Not long after Babinski was released from prison, he left the US. On return he was arrested on a parole violation (leaving the jurisdiction) and later civilly committed -- based not on new criminal acts, but his artwork. This was a clear violation of Mr. Babinski's First Amendment rights.
[5] Marie Gottschalk, The Prison & the Gallows: The Politics of Mass Incarceration in America, Cambridge, 2007.
[6] Id.
[7] http://www.law.cornell.edu/supct/html/89-478.ZD.html
[8] The quote from the New York Times is from Eva Braiman, "'Civil Confinement' laws for sex offenders are reactionary," The Militant, 5/28/07, p. 5. The article came at a time when New York was in the process of considering its civil incarceration law, which was vehemently supported by Governor Eliot Spitzer. Ironically, Spitzer himself was engaging in behavior at the time which, had he been tried and convicted for it, would have required him to register as a sex offender.
[9] Id.
[10] "Justice, not Vengeance," January 25, 2010, Times Online, http://www.timesonline.co.uk/tol/comment/leading_article/article7000832.ece

Democratic Party Japan Rejects Child Porn Possession Bill

2010-05-15T20:31:00.000-07:00

The Telegraph reports this week that Japan's ruling Democratic Party ("DPJ") has refused to support yet another bid by misguided moral crusaders (as well as the United Nations) to outlaw the possession of child pornography ("CP") in Japan. Although the Telegraph reports that the DPJ's reasoning was the law would "infringe individuals' freedom of expression," the DPJ's concern was far broader and more sensible. The DPJ actually wants to make the purchase of CP illegal, but considers the definition too vague. It also is well aware that banning possession may have unintended consequences.

In the United States and across Europe it is automatically assumed that the possession of CP either (a) constitutes ongoing victimization of the minors depicted in the material, (b) causes sex crimes against children by fueling desires of adults and/or (c) causes sex crimes against children by convincing children that sex is something fun to engage in.

The problem with (a) is that CP is so broadly defined, that claiming it is the depiction of the crime of sexual abuse (as moral crusaders like to say) is a bold-faced lie. In terms of the sheer volume of material, the vast majority of CP as defined in places like the United States and England was made under circumstances involving no sexual abuse, because it depicted nudity only, if not simply "abbreviated" apparel such as bathing suits, leotards and underwear. In England, just showing the chest of a minor female is grounds for a conviction. Following this kind of pedo-paranoia coming from the West, Japan enacted a similarly vague definition to include sexual acts as well as images of minors under the age of 18 "fully or partially naked and posing in a way to stimulate sexual desire." [Source: Japan Times, Eric Johnston, "Child Porn Hard to Define, Stop," March 31, 2009. (The headline of that article doesn't seem intended to be ironic, but it seems axiomatic that something "hard to define" would also be difficult to stop.)]

Given such broad definitions, curtailing the private right of possession is indeed, under many circumstances, an infringement of a person's s freedom of thought without any benefit whatsoever to the "victim." One may credibly argue that banning the possession of images of sexual contact is justified by balancing an individual's freedom of thought against the peace of mind of the victim who was truly harmed by sexual contact (and who may subsequently feel threatened or haunted by the prospect of her photos being out there in the world), but victims of nudity or bathing suits? It mocks the very notion of victimhood. Looked at in a rational light, the DPJ only appears to be doing what politicians who care about democratic freedoms should do.

Reasons (b) and (c) for banning possession were also likely rejected by the DPJ based on reason. There is no credible data anywhere which establish a causal link between CP (or comic books, for that matter) and crimes against children (either by fueling desire or inciting children to engage in sex with adults). Sure, countries in the West are full of this kind of nonsense. You need to look no further than the mythological Congressional "findings" to the 2003 "PROTECT Act" which amended the CP laws in the United States:

- child pornography is often used as part of a method of seducing other children into sexual activity; a child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children 'having fun' participating in such activity;

- child pornography is often used by pedophiles and child sexual abusers to stimulate and whet their own sexual appetites, and as a model for sexual acting out with children; such use of child pornography can desensitize the viewer to the pathology of sexual abuse or exploitation of children, so that it can become acceptable to and even preferred by the viewer;

(Such reasoning is hardly confined to the American Congress. In a recent case in the Netherlands which ruled that "virtual CP" did not fall under the CP laws, the prosecution argued that virtual CP should be illegal because lawmakers intended the law to prevent conduct that might entice or encourage children to engage in sex. See, LJN: BL8876 District Court 's-Hertogenbosch, 01/821140-09, 3/30/2010. Personally, I find the idea that CP would induce a child into having sex with an adult rather bizarre. But consider the source: testimony in Congress during the late 1970s and early 1980s by a handful of law enforcement officers with no formal schooling who really didn't know a whole heck of a lot about their subject matter. And from that well of ignorance is drawn the knowledge of politicians the world over.)

As for the theory that CP fuels desire and/or causes an addiction spiral which leads to sex crimes against children, the supporting "evidence" is anecdotal, concocted by psychologists working within penal settings who carefully select their cases from an already small pool of offenders to arrive at broad generalizations. Scientific method doesn't even enter into the picture. There are no population studies, no controls and no reliability that the information gathered is even true. (Prisoners or probationers is court-mandated settings are best advised to give their "therapists" the information they want lest they be subjected to very real penalities for not cooperating or being "in denial." Moreover, putting the blame elsewhere -- on adult pornography, on CP, on alcohol, on marital problems, job stress, etc. -- is a fine way to avoid personal responsibility.)

It wouldn't be so much the lack of causal or correlational data that motivated the DPJ to reject the possession law, however. Rather, it would be the story told by actual sex crime statistics in Japan. Milton Diamond and Ayako Uchiyama looked at those statistics in Japan in 1999 in "Pornography, Rape and Sex Crimes in Japan" and found that the widespread availability of pornography of all types, including CP, corresponded not only with "a decrease in sex crimes with juveniles as victims" but also a decrease in the number of juvenile sex offenders. Similar correlations have been found in other countries (Denmark, Czech Republic) and is being analyzed again in Japan for the first decade of the 21 Century. Thus it may be that possession of CP (or equivalent erotic materials) may act, on balance, to prevent rather than motivate crimes against children.

Moral crusaders, of course, don't want to hear any of this. What they are really bothered by is the idea that someone is sitting at home and masturbating to ideas or materials they find disgusting. The protection of children is totally a secondary concern.

No Day In Court for Bailey Model?

2010-05-06T18:50:00.000-07:00

Marc Evan Greenberg, charged by the federal government with running a 'child pornography' empire in the form of the Webe Web series of child modeling websites, has pleaded guilty under 18 U.S.C. 1957 to "knowingly" and "unlawfully" engaging in "monetary transactions" in "criminally derived property of a value greater than $10,000 ... such property having been derived from a specified unlawful activity, that is, the illegal Transportation of Child Pornography (a violation of Title 18, United States Code, Section 2252A)." The indictment was issued on April 20, 2010, just ten days before the statute of limitations would have run on the charge.

Although there is no indication in the public record that this will end the Webe Web prosecution, there is also no sign of a forthcoming trial in the matter, which began four years ago with multiple charges against Webe Web and its principals, Greenberg and Jeffrey Libman, under 18 U.S.C. § 2251(a) and (e), and 18 U.S.C. § 2252(a)(1). The 2006 indictment alleged that the defendants used minors to engage in sexually explicit conduct for the purpose of producing visual depictions of such sexual conduct, and transporting such images in interstate commerce via computer websites. However, the "sexually explicit conduct" that the models engaged in was only ever posing while fully clothed for photographs, most of them taken by Jeffrey Pierson. (Pierson pleaded guilty in early 2007.)

In fact, in all the photos the models' clothing was opaque and failed to reveal anything so much as a so-called "camel toe." Moreover, the government charged only a handful of images -- 150 from a total Webe Web output of more than half a million images spread out over 45 different websites. Charged were 11 images of Bailey, 12 of Allison, 5 of Bunny, 14 of Candy, 9 of Corina, 9 of Dorie, 6 of Kristy, 24 of Lacey, 8 of Lil Amber, 7 of Lily, 1 of Olivia, 7 of Sabrina, 13 of Sandi, 16 of Tori, 3 of Kimmy and 3 of Shirley.

Webe Web's lawyers argued from the beginning of the case that the number of indicted photos -- "child pornography" only by an expanded definition that goes beyond even that of the Third Circuit's decision in United States v. Knox -- was so inconsequential that Webe Web's principals would have easily missed them, as they rarely gave more than a cursory look at thumbnails of the images before putting them online. Under this theory, the rogue of the case is Pierson. Nevertheless, due to the charges and the number of "victims," if convicted Greenberg and Libman would be given life imprisonment.

It may well be that the government doesn't want to proceed with the prosecution if they can get Greenberg and Libman behind bars for a substantial time period. The case has been lingering since 2006, with the defense continually complaining about not having adequate access to the seized materials for discovery purposes and both the government and defense fighting over trial issues which the judge in the case clearly doesn't want to decide. (Pre-trial motions have been left to languish.) In addition, a full trial would require the testimony of dozens of witnesses (certainly all 16 girls) with unpredictable results for the government both at trial and on appeal.

So it wouldn't come as a surprise if the original indictment were dismissed by the government at Greenberg's sentencing, currently set for August 19, 2010 in Huntsville, Alabama, before U.S. Federal Judge C. Lynwood Smith Jr. Under the new charge, the maximum jail time that Greenberg is looking at is ten years.

Jeffrey Libman has not yet been given a similar offer, but one is expected. Libman is currently serving a sentence of 87 months on his guilty plea entered in September of last year in a separate case of receiving child pornography under 18 U.S.C. 2252(a)(2). The two charges to which Libman pleaded guilty stemmed not from the Webeweb photos, but from the bulk-downloading of newsgroup images, including some actual child pornography. Greenberg was not charged in that case.

So for now it would appear that there will be no day in court for Bailey Model and other girls in the Webe Web case.

J-j-j-j-j-j-ailbait: The Compilation (04)

2010-04-06T17:19:00.000-07:00

"Ici Les Enfants" by The Monochrome Set

From the arty side of the late 1970s punk movement comes The Monochrome Set with their debut album, Strange Boutique (Virgin Records, 1980). Amongst some excellent music one finds this little gem of a song, a paean to none other than Brooke Shields circa Pretty Baby. It seems pretty tongue-in-cheek, but more than a few listeners seem to be worried about whether they're supposed to be disgusted or try to be amused. (I guess the angels wanna wear their red shoes.)

Some memorable lines:

"Oh, pretty baby, you’ve been driving me wild
With the face of a woman and the body of a child
I saw your first take and all the out-cuts
You’ve been driving my middle-aged blood pressure up."

and

"You’ve come a long way from the ivory snow
I’m not a social worker, will you give it a go?"

The complete lyrics can be found here. At Amazon, the mp3 of Ici Les Enfants is a mere 89 cents (and comes from the album "Westminster Affair").

Book List: "Stolen Flower" by Philip Carlo

2010-04-06T16:18:00.000-07:00

Detective and crime novels depicting crimes against children by and large suffer from a host of problems: cartoonish bad guys, a total misunderstanding of girl-lovers and their subculture, gross exaggeration and pure lies. Stolen Flower is the fictional story of a 10-year-old New York rich girl who, during a visit to the Pompeii ruins with her mother, is snatched by syringe-yielding gypsies. The gypsies rent her out to the kiddie porn trade in Amsterdam, where she ends up being featured in a Dutch magazine called "Nymphet" and stars in a few hard-core sex films. Eventually they sell her off to a rich Arab for $100,000.

While she's still in Amsterdam, however, a copy of Nymphet ends up in New York in the hands of the family's Puerto Rican parking lot attendant, who recognizes the girl and tries to blackmail the family: pay me $10,000 or I'll tell the tabloids. Enter Frank De Nardo, Upper West Side detective, hired by the family's lawyer to find the girl. After he deals with the blackmailer in short order, De Nardo studies the photos in Nymphet and gets a translation of the personals ads in the back, important intelligence, he thinks, for the world he's about to enter. A visit to a 42nd Street porn shop and a conversation with his uncle top the list of his preparations for a trip Italy. De Nardo is the white sheep of his family. Through his uncle, he will be connected to the most powerful man in Naples, a mafia don.

As a piece of agit-prop, Stolen Flower is risible, but probably no one remembers that when it was released in 1986, Mr. Carlo went on the talk show circuit, spoke about his book as if it depicted the real truth behind the child porn/sex scene, and people believed him. (On one show, Mr. Carlo went toe-to-toe with then-NAMBLA member Christopher Farrell.) The jacket copy from the E.P. Dutton first edition claims that the book "is not only an absorbving novel of suspense, it is also a timely exposé of a cold-blooded sexual underworld that is all to real today...and that threatens innocent children everywhere."

Even so, it's not a bad book. Mr. Carlo can move a story along, even one as implausible as this. (Kidnapping ten-year-old girls for commercial porn? Come on!) His outrage at what he sees with his own eyes comes across as genuine. Publisher's Weekly condemned the book at the time of its release as "clumsy writing" and "immature moralizing," but that was before anti-pedo became the new heterosexuality. Mr. Carlo's book was pioneering in that regard. The writing is a little clumsy, it's true, but he's writing pulp fiction and most readers won't notice or care.

What does Mr. Carlo get right in the book? Very little, but there is one brief outstanding scene early on, when De Nardo finds his way to a child brothel in Naples:

"And they were there all right. Sitting in the chairs and couches were young girls - just kids. They were all dark and narrow with big hungry eyes. There were some older girls too, but for the most part they were only kids, talking and joking with the men, who openly pawed them. It was crazy... There were nine girls there no more than twelve, and four who were in their late teens."

De Nardo has a drink, watches the girls and their customers, and decides to take a 9-year-old up to a private room. Management thinks he's going to fuck her (and he does his best to act the nonce), but he's only going to interview her. The girl, he discovers, lives nearby, has posed for nude photos and made sex films, and started in the trade when she was six, having been initiated by her uncle. Later, when De Nardo is walking around Naples, he remembers what he saw:

"I watched young girls carefully now, in a way I never had before. It was a pleasure to see them laughing and playing among themselves, walking with their families. But in the last two days I had learned a lot about young girls I had never known, and what I learned was not sitting well with me now."

It's not a moment of doubt that De Nardo experiences, but it may as well be, since the imagined brothel scene doesn't fit in with the rest of the book. The girls are not from rich families, kidnapped off the street and sold off to rich Arabs. To the contrary, they're poor girls who seem to be, well, working.

Mr. Carlo would have done better if he had stuck to at least the modicum of verisimilitude in the brothel scene. Instead, there is the historical libel of child-stealing gypsies, every bit as unforgivable as accusing Jews of drinking the blood of Christian babies for Passover :

"They kidnapped children and put them into white slavery, murdered and did what they pleased, and the European authorities knew about them...and yet they went about their business with the impunity of Standard Oil."

Then there is the spectre of Arab predominance in the kiddie porn and sex trade. They're everywhere - in the Neopolitan brothel, in the Amsterdam sex shops - and then "there are many Arabs with oil money and they buy a lot of these kidnapped children... blond children especially."

Next to these truly fictional claims, every other problem seems minor, but there are plenty: When De Nardo first gets to Amsterdam, he goes to coffee shop and buys some hash to ingratiate himself with the owner ... in order to ask him where he can find kiddie porn. Then he sits at the coffee shop and drinks a beer. The problem there is that hash bars and coffee shops in Amsterdam don't sell beer. They're not permitted to. Moreover, at roughly at the time Mr. Carlo was writing, kiddie porn was openly available, displayed on the walls, in the windows and in the private video booths of the sex shops. (In fact, kiddie porn was pushed out of view in 1984, two years before Stolen Flower came out, but Mr. Carlo's book took a few years to write.)

De Nardo soon discovers the sex shops, but you can tell that Mr. Carlo either never visited one or he was to afraid to get a good look at what they had. He describes films "lined up on all the walls, floor to ceiling" and "of course, no one was taking credit for any of these productions." Actually, there were many magazines but relatively few films, and the films sometimes bore recognizable trademarks, such as that of Color Climax Corporation, the Danish company. Mr. Carlo also gets the prices wildly wrong: $250-$500 for films that in fact cost between $10 and $25. But these are details, like the bad Dutch accents confused with German. The real fantasies come thick and fast as the story develops: sadistic productions in which one of the bad guys smacks a girl until blood is flying, and the almost obligatory snuff films. With all the bad things that are depicted in the worst of child porn films, you wonder why a writers would bother to make anything up. Perhaps the answer is as simple as this: describing blood-spattered beatings and snuff films saves a writer from having to describe sex.

De Nardo's thoughts suggest that the little blonde is going to be used for one of those snuff film and he thinks that's why, when he pays $3,000 to have sex with the girl (he's really going to save her) they tell him "This child cannot be hurt or abused in any vay! None! You understand? Relations only normal!" But the idea is half-baked. Her face and skin, but not her virginity, preserved for the rich Arab? She's already been in sex films; one of the bad guys says she'll be married to the Arab. Mr. Carlo can't make up his mind because nothing really makes much sense.

And if that doesn't make sense, maybe the ending is just a wee bit facile. Having been kidnapped, told her mother was dead, forced to appear in porn films and trafficked in the trunk of a car to Ibiza, she's rescued in a murderous rampage by De Nardo and three Italian hit men. (Close your eyes, De Nardo tells her as he and his cohort kill everyone in the house she's being held in.) PTSD? Forget about it. When she has a little trouble adapting to school, a few sessions with a hypnotist make her as good as new.

So much for the soul-destroying kiddie sex trade.

Book List: "Age of Consent" by Ramona Stewart

2010-04-06T15:47:00.000-07:00

I've never seen the actual cover to this delightful book from 1975 (published by E.P. Dutton & Co.), so I imagined one myself, using a cropped David Hamilton photo. It actually suits the book quite well. Age of Consent fits into the category of what once might have been called "racy" -- i.e., sexually explicit only in the service of telling a spicy and scandalous story.

The plot centers on two 14yo girls vacationing in Florida: Trude, from a rich family, and Vickie, her schoolmate and best friend. They're staying with Trude's uncle Max, who is supported by Trude's father. Ostensibly, Max is a sales representative, but he doesn't do much of anything except attend to the gay party scene. He's easily manipulated by the girls, so they're not heavily supervised. The girls steal pot from Max's much younger boyfriend and plan how they're going to lose their virginities before summer's out.

Trude is interested in older men - 40 and up. Vickie, the story's narrator (it's her diary we're reading) is interested in guys just a little bit older than she is. Trude sets her sights on Paul Lambert.

"Paul Lambert." When I didn't scream aloud, she said "He wrote Lupe."

I remembered then. I'd read it; in fact, we both had. We'd ripped it off from Brentano's because it was four years ago when we were only ten and we thought the bookstore might not sell it to us. It was about the weekend in the life of a fourteen-year-old Mexican prostitute making out with American tourists. It was a shocker then; I mean, it was before Xaviera and Deep Throat and Viva showing cocks, so everyone was reading it. We loved it. It made sex fun instead of the olden days horror you kept in the closet.

The girls set out to have Trude seduce Lambert. The book begins with an epigraph "Any person who has unlawful carnal intercourse with an unmarried person ... under the age of 18 years, shall be punished by imprisonment for not more than 10 years," so you know things will come to grief for Lambert. But this story is all about the girls. Trude throws herself at Lambert repeatedly with Vickie's invaluable help while Lambert is preoccupied with other things -- his NY agent who visits Florida to try and get him to finish a manuscript; a 19yo state attorney's daughter with whom he got into a scandal several years back; his bad financial situation; and his wife from whom he was recently separated.

While this is going on, the girls are pleasuring each other (69, masturbation, fingering). The passages are short, but well-drawn. It takes the the author a while to get around to describing the girls physically: "A-cup" breasts and wisps of fuzz down below.

There's only one weak point which could have been imagined better. After Trude has (in her words) fantastic sex with Lambert and Vickie returns (Vickie had left just as the sex began), Lambert's almost-ex-wife calls. When Lambert puts the girls out of the bedroom so he can talk to her, Trude goes ballistic, runs outside naked, and Lambert struggles with her physically to get her back into the house. It's right then that a police car cruising in the neighborhood pulls up. (As I describe it , it's quite good -- but the devil was in the details of the struggle.) Trude is fuming and rather hysterical by this point and she ends up telling the cop that Lambert made her smoke pot (the pot was Trude's and Vicki's) and raped her as well.

Vicki knows but never tells the authorities the truth. She feels sorry for Lambert but figures she has to stick by her friend. Moreover, once she lies to the D.A., there's no turning back. Later, Trude refuses to testify, but continues to play the victim. Vickie thinks that Trude's refusal might save Lambert, but he has already pleaded guilty and gets 5 years. Vickie shrugs off her feelings of guilt and Trude refuses even to hear mention of Lambert. In the meantime, Uncle Max has taken the girls to Fire Island (yes, the Pines), where Trude meets a 38yo gay Broadway director and hopes she can convert him to being straight. (Zero chance.)

Vickie's interview with the police is perfectly done. She is a consummate liar, expertly pretending that she doesn't know what pot was and is innocent of anything sexual. Her internal reaction to being questioned by the police is hilarious and very astute on the author's part.

Five Stars.

J-j-j-j-j-j-ailbait: The Compilation (03)

2010-04-04T18:34:00.000-07:00

"Sixteen" by Iggy Pop

Lust for Life was released in 1977 and was the second of two LPs that Iggy co-produced with David Bowie. (Bowie also contributed background vocals and keyboards). Track 2 is "Sixteen," the only composition on the album which is Iggy's alone. It's totally obsessive and lighthearted at the same time -- very characteristic of Iggy's work. Iggy liked the song enough to include a live version on the album TV Eye. Lust for Life reached #28 on UK Albums chart, but only #120 in the US -- not bad, actually, considering that Iggy was always a bit advanced in concept for Americans.

Iggy's singing on "Sixteen" is urgent and for good reason:

Sweet 16 in leather boots
Body and soul
I go crazy
Baby, baby I'm a hungry,
Sweet 16
Funky bar all full of faces
Pretty faces, beautiful faces
Body and soul, body and soul I give to you
I am an easy mark with my broken heart
Sweet 16
Show you my explosion, sweet 16 ...

The rest of the lyrics are here. You can buy the mp3 of "Sixteen" for 99 cents at Amazon, but I'd recommend the whole album.

J-j-j-j-j-j-ailbait: The Compilation (02)

2010-03-30T19:07:00.000-07:00

George Michael's song, "Father Figure" was released in October 1987 on the Michael's first solo album, entitled "Faith" (Columbia Records/Epic Records). Released as the fourth single in January 1988, "Father Figure" topped the US charts. (The first single, "I Want Your Sex," only went to number 2.) It's a beautiful love song that will probably be banished from radio play one of these days in this era of "anti-ped is the new hetero." True, the lyrics are a bit oblique, but this isn't the first website to note the forbidden subject matter.

The official video of "Father Figure" won "Best Direction of a Video" at the MTV Video Music Awards in 1988. Perhaps by "direction" they meant directing the viewer's attention elsewhere (i.e., from the actual meaning of the song). The video is expensive-looking, but the story is pretty much disconnected from the lyrics. George Michael plays a taxi driver who fantasizes that he's in a relationship with a model (played by 22-year-old Tania Harcourt-Cooze). He pins up her magazine photos on his wall and follows her around after he gives her and her photographer-boyfriend a lift in his taxi. In a brief scene where Michael calls her on the phone from just outside her apartment, she tells him to get lost. "Stalking" might explain this part of the lyrics:

That's all I wanted
But sometimes love can be mistaken for a crime
That's all I wanted just to see my baby's blue eyes shine.

But the chorus doesn't fit the video at all. Rather, it more than suggests that the crime Michael was singing about was underage sex.

I will be your father figure
Put your tiny hand in mine
I will be your preacher teacher
Anything you have in mind
I will be your father figure
I have had enough of crime
I will be the one who loves you
till the end of time.

The complete lyrics can be read here, along with varying interpretations. (Most seem to opt for an age-disparate, underage relationship.) And you can buy an mp3 of the song for $1.29 at Amazon.

J-j-j-j-j-j-ailbait: The Compilation (01)

2010-03-27T20:42:00.000-07:00

"Child Molesting Blues," by Patrick Sky

Songs in popular music referring to male desire for young girls are legion, but few strive for humor. Of course, when Patrick Sky released his album, "Songs That Made America Famous," in 1973, people still had a sense of humor. Major record companies didn't even then, however. Mr. Sky's album, recorded in 1971, was purportedly turned down by ten different labels before it landed in the lap of Gene Rosenthal at Adelphi Records.

Reviews were positive:
Rolling Stone: 'Sometimes a record comes along that so affronts common decency, so offends public morality, and so insults established canons of taste that its very appearance understandably prompts cries of outrage, shock and indignation,' said writer Jim Miller. 'Veteran folk minstrel Patrick Sky's latest opus is just such a record. ...Such a record belongs in every American home; enjoy it while you still can."
Billboard: 'This is not an album that can be universally recommended to everyone, especially one's maiden aunt in Dubuque.... Not for everybody, including impressionable children, and definitely rated 'X', the album is nevertheless a must for Pat Sky fans...and miscellaneous weirdos.
Sing Out!: This is a truly revolting record...and a disgrace to the nation. Don't miss it. Pat Sky makes fun of (in order) communists, feminists, undertakers, blues singers, rednecks, militarists, babies, deformities, ethnic minorities, Bob Dylan, rock stars, the Pope and murder ballads. (Bob Norman)

"Child Molesting Blues," the fourth track on the album, begins with an announcement by a dee-jay for radio station WANK that he has discovered a long-ago formerly up-and-coming Mississippi Delta blues singer, Blind Funk Earwax, outside the studio selling pencils. The dee-jay invites the bluesman in, conducts a brief interview ("I taught Robert Johnson the blues") and the plays the only song Blind Funk Earwax ever recorded: the 1928 number called "Child Molesting Blues." Mr. Sky not only plays the guitar, but he provides the scratches and skips of an old 78 for, um, "authenticity." Just before the song begins, Earwax reminds the listener that the rape charge wasn't true: "I was framed," he says. "She gave me permission." A sample of the lyrics:

"You know I love that woman
Ever since she was 9 years old
[Sotto voce] You know what I'm talking 'bout now... "

You can buy the entire album, or just the mp3 (only 89 cents!) on Amazon.

Under No Threat, Tate Removes Images by Graham Ovenden from its Website

2009-12-10T11:13:00.000-08:00

Following the Tate Gallery's shutdown, under threat by London police, of Richard Prince's "Spiritual America," the Tate took it upon itself to remove images by Graham Ovenden from the Tate Collection online. In both instances, Prince and Ovenden, the Tate has acted against the public interest, which is served by the free flow of information, not appeasement to the paranoid lunacy of the child protection thugs.

Here is the Tate's official communication on the matter:

As you may be aware, in the current Pop Life exhibition at Tate Modern, Tate temporarily[1] closed the room displaying "Spiritual America" (1983) by Richard Prince following a visit by police officers from the Obscene Publications Unit on Wednesday 30 September 2009. The police advised Tate that the work may be "indecent" under the Protection of Children Act 1978 and that Tate may have committed an offence under that Act. The police advised that if the work were not taken down from display and if the catalogue containing the image was not removed from sale that a prosecution would be considered. In the circumstances, Tate decided that it had no option but to withdraw the work from display and pending further legal clarification has redacted the image from the Pop Life catalogue. As prima facie similar issues are relevant to the Ovenden images, on 8 October 2009 Tate also decided to remove Ovenden's works temporarily from Tate Online, again pending legal clarification.

That the Tate has gone overboard can be seen from the Tate images that are now displayed at Not-the-Tate Collection. Many are not even colorably prosecutable. (Note: Only those with an accession number, P*****, were on the Tate collection's website. NOT-the-Tate apparently decided to add other Ovenden works.)

More than that, Ovenden's work raises issues that simply do not exist with the Richard Prince exhibition. Prince is an American artist whose work was temporarily on display. Ovenden is a British artist and resident of the U.K., whose works can be found not only in the Tate, but in public institutions and private collections throughout the country. All of the images that were shown at the Tate Online are in its permanent collection and have been so for many years. As the possession of so-called "indecent" images is as criminally culpable under the Protection of Children Act 1978 as their display, the Tate has the moral responsibility to take a firm and public stand. A failure to do so will be nothing less than an invitation to that goon squad, the Obscene Publications Unit, to come and cleanse not only the museum's holdings, but also every U.K. collection where such works might be found.

History surely teaches that appeasement in the face of tyranny, be it political or intellectual, is unacceptable. At least one could say of Neville Chamberlain, as Winston Churchill did in a House of Commons tribute, that whatever one thought, the man acted "with perfect sincerity according to his lights and strove to the utmost of his capacity and authority." It is certain that the Tate has acted with perfect sincerity with regard to Prince and now, Ovenden. But to the utmost of its capacity and authority? Not even close.

-----------------------

[1]It is simply not true that the Tate "temporarily" closed the Prince exhibit. The Tate closed the room which served as a "frame" for the work and told Prince that he could substitute another photo for the one of 10-year-old Shields, or have no work at all in the show. Lacking a certain integrity that one should expect from an artist facing state censorship, Prince substituted a dreadful photo of Shields as an adult for the dreaded one of her at ten.

Image by Graham Ovenden, entitled "Lure Me" (1971), print on paper, from the Tate's permanent collection. Removed by the Tate Online on October 8, 2009. Will it be restored?

Coming Soon: An exclusive report on R. v. Ovenden

2009-10-25T20:38:00.000-07:00

Meet Ramsay Quaife, the prosecutor of artist Graham Ovenden.

Silks Nix Brooke Pix!

2009-10-21T05:20:00.000-07:00

British censors may yet force Tate Publishing, the publications arm of the Tate Modern museum in London, to destroy the 12,000 catalogs printed for its “Pop Life” exhibition, but the Tate's lawyers seem intent on censoring first. The catalogs, which contain the nude image of Brooke Shields, were expected to bring the Tate about $524,000. Some copies are on sale now with stickers placed over the photograph "on legal advice," according to a museum spokeswoman. The Tate's posh lawyers are obviously COWARDS!

Brooke Shields banned again, this time at ArtJournal blog

2009-10-18T16:08:00.000-07:00

Over at the Artsjournal blog, CultureGrrl, Lee Rosenbaum removed a jpg of Richard Prince's conceptual artwork, "Spiritual America," because the image was "being accessed by the wrong people for the wrong reasons. It's giving my blog lots of traffic, but it's not the kind of traffic I want. This is a haven for art lovers, not pedophiles."

With this self-righteous declaration, Rosenbaum goes on to "defend" the work. Is she successful? Hardly. Here is her argument: The British censors want to know "what kind of photographer took the pictures" and "[i]f they are known to have a good reputation, then this will be relevant too." In the case of Prince, Rosenbaum says, "the 'reputation' test is easily met" because he is a "highly acclaimed and widely shown artist[ ], not [a] porn purveyor[ ]. But CultureGrrl readers already know that. Sometimes law enforcement officials and politicians just need to be reminded."

Surely she's joking.

First, CultureGrrl's refusal to show the Prince work on the basis of Rosenbaum's belief that the "wrong people" were looking at it (bullshit anyway, since the Gross work is available on a number of sites, as a Google search will confirm) is not at all distinguishable from the censorship at the Tate. (At the Tate, the image of young nude Brooke has now been replaced by an image of an older Brooke. How boring.) The British hysteria over images of minors is motivated wholly by the paranoia that they will be viewed by the "nonce."

Second, Richard Prince did not even take the photo that is the basis for "Spiritual America." (See the image at left.) The work is a re-photographing (with slightly tighter cropping and bad color if the example here is accurate) of a photograph by Gary Gross (at right). According to Daniel Girardin and Christian Pirker at EgoDesign, the Canadian blog, Gross granted Prince the right to use the photograph in exchange for a series of ten prints. If he hadn't done so, the work would in all likelihood be considered a copyright infringement because Prince's contribution -- cropping it and "framing" it by putting it in its own room -- does little to transform the original work.

The notion of "transformation" in the use of a pre-existing work has been the subject of two cases involving the artwork of Jeff Koons.

Koons was actually found guilty of copyright infringement for his work, "String of Puppies." In Blanch v. Koons, however, he was found not merely to have appropriate an image, but to have changed its purpose and meaning, as well as its "colors, the background against which it is portrayed, the medium [i.e., the original was a photo, Koons' work a painting], the size of the objects pictured [and] the objects' details." For these reasons Koons won the case. Prince's use of the Gross photograph would probably not have met the test applied by the court.

The relatively unadulterated use of Gross's work is at issue here because Rosenbaum seems to agree that an artist's "reputation" should make a difference to whether a work is censored. (Oops, there goes Jean Genet, there goes Oscar Wilde. Or is photography a special case?) If that is true, the reputation of Prince, such as it is, would not be at issue. Rather, the inquiry goes to Gross. Furthermore, "reputation" as understood by bourgeois art patrons such as those Rosenbaum writes for and "reputation" as understood by guardians of public morality may plainly be at odds. There is often plenty about a "reputable" artist that is "disreputable."

Fourth, the Prince version of the photograph, Rosenbaum writes,

is currently displayed in the Guggenheim Museum's justifiably praised ... Richard Prince retrospective (to Jan. 9). It is the title work in the show, "Spiritual America," but is hidden in an out-of-the-way spot, behind a bathroom and next to an emergency exit on the fifth floor. This image is called "incendiary" in the Guggenheim Guide, which describes its subject as "a naked, prepubescent Brooke Shields, posing in a brothel-like atmosphere, her face made up like a grown woman's."

Interesting. A "brothel-like atmosphere?" The photo shows no signs of a brothel whatsoever, just an ornate bathtub. But the Guggenheim was pandering - sensationalizing - to make the work seem salacious, forbidden. Perhaps Rosenbaum should also stay clear of the Guggenheim. Surely by locating the photograph conveniently near the bathroom they are even encouraging the "wrong people" to see this image. lol.

It is for all these reasons that the images have been reproduced here. With hype like that of the Guggenheim, and hysteria like that of Rosenbaum and the British censors, not showing the images would be irresponsibly contributing to mythology and misinformation.

British censors at it again

2009-10-02T18:48:00.000-07:00

These days there appears to be no limit to the British authorities' paranoia regarding images of minors and even adults who, to jaded moralists, look like minors. The panic of the week is a work by Richard Prince - an "appropriation" of a photograph of Brooke Shields originally taken by Garry Gross when Shields was 10. (If the Prince work as displayed here is any indication, the appropriation is a somewhat discolored and cropped version of the original, which is here.)

Prince's work was to be shown as part of the Tate Modern’s show, “Pop Life: Art in a Material World.” But the room in which the photograph was displayed has been closed pending an investigation for "indecency." Incredibly, the catalog for the show has also been withdrawn.

Prince's work has been shown both at the Whitney and Guggenheim in New York, while Gross's work has been published in Sugar and Spice (Playboy Press, 1976, a book of images of nude women, plus the semi-nudes of Shields and one other fully clothed minor) and Photo (France) and has been sold in posters and photographs marketed by Gross himself. The images do not violate so-called child pornography laws in the United States because they do not show Shield's genitalia. Under British law, however, anything can be "indecent." Literally, "indecent" means whatever a judge says it means. So much for rule of law.

Greg Fallis at Sunday Salon describes the artwork and its creation, which is at least interesting from an artistic standpoint, but has no legal effect:

Prince entitled the photo By Richard Prince, A Photograph of Brooke Shields by Garry Gross, but the photo is better known by the title given to the entire project: Spiritual America. The project involved renting a storefront in New York and turning [it] into a gallery (also called Spiritual America) which only showed a single photograph…the one of Brooke Shields. The gallery was not free and wasn’t open to the public. The gallery, according to Prince, “was in fact a sideshow, another frame around the picture, another attraction around the portrait of Brooke Shields.”

The entire elaborate production surrounding Spiritual America was, for Prince, part of the art. The work wasn’t about the original photograph, the photograph was merely the object that initiated the art. Not only was the original photo itself an object, it had turned the ten year old Brooke Shields into an object...an object with a sensuous woman’s face attached to a sexless child’s body. “Brooke as the subject becomes an indirect object, an abstract entity,” Prince said. When he took the picture of the picture he was photographing one object depicting another object, all of which had been sparked by a mother treating her living child as an object. Prince then displayed his recreated object in a way that emphasized its objectness. He not only appropriated the photograph at the center of the project, he even appropriated the title of the project: the original Spiritual America is a photograph by Alfred Stieglitz showing a gelded horse.

A sensuous woman's face? Looks like a kid in make-up to me. No adult has those facial proportions. (In his explanation of the work, Richard Prince not only says that he thought she had an adult face, but he also thought her body showed no signs of being female - another obvious misreading.) Nevertheless, Shields has never uttered a negative word about the contents of Gross's photos, despite her mother's attempt to suppress them in 1981.

And that brings up The Guardian's misreporting of this controversy. In the article, "Sugar and Spice and all things not so nice," Christopher Turner reports that:

Though the pictures were taken with her consent, in 1981 Shields's mother sued Gross on the grounds that his continuing sale of them was damaging to her daughter's reputation, and she obtained a provisional ban on their further use.

This leaves one with the impression that somehow the court passed judgment on the photos, but that isn't what happened. Rather, the New York Appellate Division construed the model releases signed by Shields' mother in light of New York's "invasion of privacy" law, and decided to carve out of the releases the use of the photos for "advertising and trade purposes." However, this erroneous construction of the law was reversed by the Court of Appeals, the court of last resort in New York State.

In the Court of Appeals, the Court defined the issue simply: "whether an infant model may disaffirm a prior unrestricted consent executed on her behalf by her parent and maintain an action ... for republication of photographs of her. We hold that she may not."

The Court opined: "the infant plaintiff is bound by the terms of the valid, unrestricted consents to the use of her photographs executed by her mother, which she may not disaffirm... Finally, it is claimed that the application of the statute as we interpret it may result in unanticipated and untoward consequences. If that be so, there is an obvious remedy. A parent who wishes to limit the publicity and exposure of her child need only limit the use authorized in the consent, for a defendant's immunity from a claim for invasion of privacy is no broader than the consent executed to him..." Shields v. Gross , 58 N.Y.2d 338, 448 N.E.2d 108, 461 N.Y.S.2d 254, 9 Media L. Rep. 1466 (N.Y. 1983).

A writeup on the case can be found at http://jcomm.uoregon.edu/~tgleason/j385/Brooke.htm.

A friend and colleague of Prince is also quoted in the Guardian article as claiming that Brooke was not unhappy with the photos but was unhappy with Gross's "greed." This is exceedingly unlikely, since the lawsuit was precipitated over the re-publication of Gross's photos in the French magazine, Photo, which often featured nudes and semi-nudes of females, and occasionally minors, along with a wide range of classic photography from the world's leading photographers. (Other issues of Photo featured Irina Ionesco's photographs of her daughter, Eva, and images of minors by Jacques Bourboulon and David Hamilton. In fact, Hamilton's work is featured in over a dozen issues during the late 1970s and early 1980s.) Shields' mother argued that the context of the magazine was pornographic, which is really untrue. Moreover, Gross was paid very little for creating the photographs and earned relatively small amounts of money selling them in the succeeding years. Richard Prince, on the other hand, sold his appropriation for $150,000, and then used the image again for another work, entitled "Untitled (Publicity)," shown below. (The image of Shields at 10 is on the right.) Obviously he found the appropriation lucrative.

Roman Polanski arrested...

2009-10-01T10:22:00.000-07:00

Like a lot of other people, I was shocked to hear that Roman Polanski was arrested. Well, not shocked, just surprised. Seems like a prosecutor in California got his knickers in a twist when Polanski's victim said in a documentary that she forgave him and that she didn't want to see him go back to jail. She preferred to shed the identity she grew up with, "oh, you're Roman Polanski's victim." Not the best conversation starter.

Of course prosecutors should actually THINK about how they are spending the public's money, and in this case, it will not be spent well. (How many hundreds of thousands of dollars will extradition from Switzerland cost? And then?) And the victim's word and desire should always be considered first. Polanski, according to the as-yet-undisputed facts, never considered the victim's desire. Why would the prosecutor want to follow in his place?

One could argue: it's not a question of Polanski's being talented and rich, a Holocaust survivor or a Charles Manson survivor. Everyone should be subject to the same rules and the same bad policies, even unjust ones. If rich people get a pass, that creates contempt for the rule of law and perpetuates systematic injustice. Or so the argument goes. On the other hand, there can be no higher moral justification for putting Polanski behind bars now, having been forgiven by the victim.

Watch the documentary "Roman Polanski: Wanted and Desired" by Marina Zenovich. I'll try to post a clip from it.