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December 17, 2013

"Mom's Photos of Kids Rules 'Obsessive' but Not Pornography"

The title of this post is the headline of this interesting report from the New York Law Journal about an interesting state ruling concerning the definition of child pornography.  Here are the details:

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

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

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

In one of the photographs, a 4-year-old girl is sleeping, with her legs splayed and her private parts visible. In another, a child is wearing nothing but boots that are far too big. And in another, a child apparently undergoing potty training is depicted in the bathroom with her pants down.  Others show the children playing in the bathtub.

The Brooklyn District Attorney's Office executed a warrant and seized various electronic equipment from the parents' home, but did not charge the parents with a crime. Rather, several months later, the district attorney aided the Administration of Children's Services in filing a child abuse case against the parents based on the same photographs, according to court records.  ACS alleged that the parents had sexually explicit photographs of their children and failed to cooperate with the agency in its investigation.

But at a hearing, there was no indication the children were in any jeopardy, Mostofsky said.  The children's pediatrician, who had cared for the children since birth, said the family was "one of the most normal high functioning families" in his practice and he never saw any signs of abuse.  Even the ACS caseworker testified that the children were not in an imminent danger....

The court dismissed the petition, finding no evidence that the parents violated any laws. Mostofsky said the photographs in question do not meet the definition of lewd and the parents did not promote obscene sexual performances.

December 17, 2013 at 11:24 PM | Permalink

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"ACS alleged that the parents had sexually explicit photographs of their children and failed to cooperate with the agency in its investigation."

Failed to cooperate? I.e., refused to admit guilt.

"Even the ACS caseworker testified that the children were not in an imminent danger...."

Oh, really? The next question, were I the judge: "Why are we here?'

They didn't bring charges--even though they had evidence, but they wanted to yank the kids. Interesting.

Posted by: federalist | Dec 18, 2013 1:19:25 AM

I lose a bag of money, and someone takes it. Isn't that theft? Can the police examine the content of a Blackberry that was used by the finding thief, when there was no indication of a crime? Is there any precedent?

Should all legal and emotional costs now be demanded of Blackberry for its defectively designed product, that was lost, could not be located and retrieved, allowed strangers to view the content without permission, and failed to wipe out the content from a remote location?

Review of risk of loss/theft, now rising.

http://eagleconsultingpartners.com/2012/04/risk-analysis-probability-of-smartphone-losstheft/

Posted by: Supremacy Claus | Dec 18, 2013 1:42:31 AM

Ohio had a case a few years ago wherein a professional photographer was charged with a crime .

The scariest part here is the fact that some of the folks prosecuting may be able to procreate .

Where is Buck v. Bell 274 U.S. 200 (1927) when we need it ?

Posted by: Just Plain Jim (Just Another Guy) | Dec 18, 2013 6:29:54 AM

"ACS alleged that the parents had sexually explicit photographs of their children and failed to cooperate with the agency in its investigation."

Failed to cooperate? I.e., refused to admit guilt."

You mean by failure to cooperate (another bogus government charge to plea bargain with), they refused to help dig their own grave before getting a bullet in the back of the head.

How much "mileage" did the bastard unethical prosecutor get in the media? Did they perp-walk the parents in front of TV cameras? Were there public apologies and retractions taken to right this wrong afterwards? I am willing to bet (as someone else likes to do here) $100 that the answer to the last question is no.

Not to worry though, the witch-hunt only met a minor bump in the road but will continue on until there are serious penalties for the Justus system.

Posted by: albeed | Dec 18, 2013 9:07:35 AM

\\ "In one of the photographs, a 4-year-old girl is sleeping, with her legs splayed and her private parts visible." //
---------- / "one of the most normal high functioning families" in his practice" \ ----------

Where is this man's practise -- the Gomorrah section of Brooklyn?

Posted by: Adamakis | Dec 18, 2013 9:30:08 AM

Does the doctrine of a Terry stop (of a car for stop and frisk) apply to an electronic device?

http://en.wikipedia.org/wiki/Terry_stop

"To have reasonable suspicion that would justify a stop, police must be able to point to “specific and articulable facts” that would indicate to a reasonable person that a crime has been, is being, or is about to be committed.[5] Reasonable suspicion depends on the “totality of the circumstances”,[6] and can result from a combination of facts, each of which is by itself innocuous.[7]"

An example would be for an officer to see an unlawful image displayed walking by. A shut off device would not represent a specific and articulable fact. The defendant should charge the finder with theft because he did not return the item to a Lost and Found by actually took possession and used the device. That is not finding but use of a chattel, likely worth a small amount, but still subject to fines and a criminal record. The defendant should press charges against the finder, the police, and against the prosecutor for theft.

Huge highway billboards display the rear of a child in a tanning lotion advertisement.

Do not open this image of a billboard size ad from years ago unless you want potentially prosecutable image in the computer. I am linking to it for legal discussion purposes, all you vile feminist lawyer and their male running dogs.


http://www.pbase.com/image/77098090

Once again, no defense lawyer will do this. However, all defendants must insist on the e-discovery and other total discovery of all family pictures of the prosecutor and of the judge, especially if old if they have any children. Then display in huge blowups all toddler images of these vile feminist lawyers and their male running dogs to any jury.

In this case, the judge saved the reputation of the justice system, and I commend him.

Posted by: Supremacy Claus | Dec 18, 2013 10:25:49 AM

lucky DA. If this had been me. Once he failed to file any charges if he stuck his nose in my business he would have been informed that the next time he stuck it in my business I'd be happy to blow it off his face.

Posted by: rodsmith | Dec 18, 2013 11:01:08 AM

Ah. Child porn or sex related cases. Time for some love for defendants.

This seems a major theme on this blog. Is this interest in an interesting area of the law or do the numbers warrant so much attention?

The example sounds ("failed to cooperate with the agency" is pretty vague) like overreaching. But, then, I think the government overreaches from time to time. Here the concern was more understandable than certain cases, such as various drug cases. Child porn is actually a problem and if someone has it, they should be punished. But, this isn't such a case from all appearances & it looks like (again, not having all the facts) it went on much too long.

Posted by: Joe | Dec 18, 2013 12:30:46 PM

"The children's pediatrician, who had cared for the children since birth, said the family was "one of the most normal high functioning families" in his practice and he never saw any signs of abuse."

So white middle class professionals.

/How do I know intent? I look at the color of their skin.

Posted by: Daniel | Dec 18, 2013 6:40:33 PM

"Ah. Child porn or sex related cases. Time for some love for defendants."

I guess we can't reason anymore (I notice you've declined to engage on the stay issues.) so we take indiscriminate potshots.

And funny how you basically come out the same way (with less vehemence) as others on this thread--so there doesn't appear to be any problem with throwing love at the defendants who, from all appearances, did nothing wrong. To bring home this disconnect--think about your reaction if, on a thread discussing Kirk Bloodworth, I yapped about typical libs always sticking up for the accused capital murderer. Well, we should stick up for Bloodworth since he was, you know, actually innocent. (By the by, the prosecutor actually apologized.)

Posted by: federalist | Dec 18, 2013 10:38:38 PM

And here's a new case:

http://www.dailymail.co.uk/news/article-2526125/Mother-50-charged-posing-topless-photo-14-year-old-daughter-hot-tub.html

Maybe we should have a separate age of consent statute for taking naughty pictures?

Posted by: flop | Dec 19, 2013 8:26:44 AM

"if"

Right. If something like that happened. :)

Posted by: Joe | Dec 19, 2013 11:04:10 AM

I wonder if the pictures of my children in the hospital at birth or the ones the first few days when bathing in the kitchen sink or even when both kids are in the bathtub together, to keep them both in sight, would be considered child porn these days. Legs spread, genitalia showing and the child is even screaming. 2 kids, different sexes 4 years apart in the bathtub TOGETHER. I hear sirens now.

Posted by: Jill | Dec 19, 2013 6:18:16 PM

LOL yes it would Jill. That would not only be sexual abuse. But physical abuse. They would put you UNDER the jail.

Then IF you ever managed to get out. Require not only supervision for live. got to love the feebs. But registration for life as well.

Posted by: rodsmith | Dec 19, 2013 11:35:14 PM

Funny how Joe likes to keep the responses on the lighter side.

Posted by: federalist | Dec 20, 2013 6:20:41 PM

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