THE “BABY-IN-THE-BATHTUB” PHOTO CONTROVERSY

INTRODUCTION

Does the taking of a picture of your baby nude in the bathtub

amount to the creation of child pornography? This is the question that was
raised in the recent A J and Lisa Demaree case in Arizona, USA.1 The
Demarees took a memory stick with family photos for printing to a
printing centre in Peoria, Arizona. Included among the photos were
pictures of three children, all under five years, partially nude in a bathtub.
An employee of the printing centre saw these pictures as child
pornography and contacted the police. The police agreed that the pictures
amounted to child pornography – “.....the young girl appeared to be posed
in a provocative manner.....” Peoria’s Child protection Services searched
the Demaree home and took custody of the children for a month while
investigations continued. Lisa Demaree was suspended from her school
job for a year and the names of both parents were placed on the sex
offender register. It was reported that the Demarees spent $75 000,00 on
legal fees. The question is when does a picture taken with innocent intent
become an illegal image?

WHAT IS CHILD PORNOGRAPHY IN TERMS OF SOUTH AFRICAN

LAWS2

Child pornography – the abuse, brutalisation, torture and even

murder of children for the sexual gratification of perverts – is a growing
global problem.3 It is, therefore, a matter of serious concern for
governments and civil society. But it is important to understand what is
meant, in terms of the law, by child pornography.

South Africa’s anti-child pornography laws are to be found in two

Acts – the Films and Publications Act, No 65 of 1996, as amended, and the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, No
32 of 2007, usually referred to as the Sexual Offences Act.

South African laws recognise two categories of products that fall

within the definition of prohibited materials–

(i) films, games or publications which contain depictions,

descriptions or scenes of child pornography, and
1
See Are bath-time photos child pornography - http://www.sfgate.com
2
The Films and Publications Act, 1996 and the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
3
See the UNHRC – Report of the Special Rapporteur on the sale of children, child
prostitution and child pornography, September 2009; Peruvian families are renting their
children as young as three to pornographic filmmakers for a ‘nuevo sol’ (34 cents)”,
Inditop.com, 22 September 2009. And see, also, Child Pornography is Booming Internet
Business, Iyavar Chetty (2007)
 (ii) films, games or publications which advocate, advertise,
encourage or promote child pornography or the sexual
exploitation of children.

The definition of child pornography also includes two categories of

prohibited materials–

(i) images or descriptions of a person under the age of 18 years

involved in any way in acts or conduct of a sexual nature, and

(ii) images or descriptions of the body, or parts of the body, of a

person under the age of 18 years in a manner or
circumstances which, within context, amounts to sexual
exploitation or is capable of being used for the
purposes of sexual exploitation.

In so far as the “baby-in-the-bathtub” issue is concerned, it is the

category of “images or descriptions of the body, or parts of the body.....”
that is of relevance. Any image or description of a child involved in any
way in an act or conduct of a sexual nature is, in almost all jurisdictions
and regardless of context, child pornography (or child abuse material). But
where the image or description does not involve an act or conduct of a
sexual nature, such as an image of the body, or parts of the body, of a
child, context will determine whether or not that image would constitute
child pornography. Such images, or descriptions, will amount to child
pornography only if the image, or description, is within a context that
amounts to sexual exploitation or within a context that makes that
image or description capable of being used for the purposes of
sexual exploitation. And “sexual exploitation” in this context means
using an image or description for some advantage, such as financial gain
or sexual gratification, such as masturbation. It is, therefore, the context,
or the circumstances or manner of its display or distribution, that will
determine whether or not a picture taken with innocent intent constitutes
child pornography or the sexual exploitation of a child. There is a
fundamental difference between an image of the intimate parts of the
body of a child in a medical journal and the same image on an Internet
child pornography website. It is the context of the image, and not the
manner of, or motive for, its creation that will determine whether or not
that image amounts to child pornography.4

4
Raising the Bar, a legal show on TNT in the USA, recently aired an episode which
centered around a father accused of endangering his child and promoting child
pornography. He had taken a picture of his son in the bathtub, showing the child’s penis
and posted it on the Internet. That picture soon appeared on a child pornography website
– posted to the site by a person who grabbed it off the father’s personal website. Had
that picture remained in the family album, there would have been no problems. But the
context changed when it was posted to the Internet, even if to the father’s personal
website, because it was then capable of being used for the purpose of sexual
exploitation – as, in fact, happened when it was subsequently grabbed from the father’s
website and posted onto a child pornography website.
THE DEMAREE CASE

The issue to be resolved in the Demaree case is not whether or not

the pictures of the babies in the bathtub were of an explicit nature but
whether or not the context suggested the sexual exploitation of those
children. There is no evidence to suggest that the Demarees were
seeking printed copies of the pictures for any illegal purposes, such as
trading them as child pornography. Making copies of such pictures for a
family album is not illegal in any jurisdiction. There is no evidence to
suggest either that the pictures were posted on an Internet website or
were going to be distributed via the Internet, which would have allowed
some pervert or paedophile to grab them for the purposes of sexual
exploitation. It seems clear, that the police were somewhat overzealous –
but, given the fact that child pornography is not only growing
exponentially but is involving the abuse and exploitation of younger and
younger children, including toddlers, in more sadistic acts of brutalisation
and torture, the reaction of the police is understandable, even though not
justified in the circumstances.

Iyavar Chetty
September 2009