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Document for ABPY-A-B The retromoderators are empowered
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may cancel messages within the following categories: 6. Are all the images I see here legal? As we said above, we cannot and do not warrant that the images posted are legal. We can't police the people posting, as this is a public forum. We can only ask people to respect the rules. People who live outside the United States, however, should be aware that some images which are legal in the US may still be illegal outside the US. Users should be aware of their country's laws before posting, viewing and downloading images from any newsgroup. 7. May I post to YAB and other groups simultaneously (Crossposting)? No, simultaneous posting to YAB and other groups, commonly known as crossposting, is not allowed. 8. Is there anything else that is not acceptable in this newsgroup? Flames (vituperative* argumentation and obnoxious name-calling) should be avoided. Flamers who are persistent will be asked to stop or leave the newsgroup. Flaming wastes bandwidth and is often used by trolls to waste people's times. This newsgroup emphasizes civility and courteousness, so if you see something you don't like and feel strongly about it, express yourself respectfully. 9. Is there a limit to how much I can post at one time? No, there is no limit to the number of files or articles that you may post at any one time. We suggest that all posters be considerate of other posters and not flood the group. Please remember that there are some people who wish to get all the posts in the group and that their server may have more limited retention than yours. A good guideline to follow would be to post no more than 100 to 200 articles or messages per 24 hour period, or 25-30 megabytes per day for large articles. This is only a suggestion. If the policy of no limit is regularly abused, it may be necessary to institute a limit at a later time. 10. What is this newsgroup's policy in regards to spam (advertising of web sites, products and services both pay and free)? Spam will be allowed in this newsgroup ONLY if it is ON TOPIC. Since this is a binaries newsgroup, ALL advertising must be accompanied with appropriate images suitable to the topic of this newsgroup. NO "text only" advertising will be allowed. All images contained in the advertising must be posted on a rotating basis and NO images may be posted continuously repeatedly over and over. This is a courtesy extended to spam advertisers as long as they post responsibly and on the topic of this newsgroup. If spam from a particular advertiser becomes a problem, this courtesy may be withdrawn after a warning. There will be NO exceptions to this rule. 11. What is the vision of this newsgroup for the future? This newsgroup should be open to anyone that appreciates the beauty of youth. Anyone is welcome to post here as long as they follow this FAQ. But this newsgroup is like any other place on the net. Some images and posts may not appeal to all and all posts may not be suitable for all to view. Some people will probably also refuse to follow the rules. Do not download what you don't want to or can't legally view. This newsgroup should be considered like a museum - a repository of information consisting of nude, semi-nude and clothed images of youths. Within the guidelines of this FAQ, there are no other restrictions at this time. copyright © 1998 Lawrence A. Stanley. Reprinted by permission of the author. There are few areas of the law in which as many misconceptions abound as in the area of "child pornography." In the current climate, there is a tendency to shout "child pornography" at any image of a young person which could be construed as erotic. In the media, the term's polemical uses far outnumber its legal ones. This discussion will focus on what child pornography actually means under U.S. law. (The Child Pornography Prevention Act of 1995 ("CPPA") is not addressed here because it didn't so much change what is depicted as "who": fictional subjects which are created out of the imagination or made using photographic referents or remembered features of actual people, and photographic images of young-looking adults. The myriad problems raised by the CPPA is dealt with elsewhere in this issue.) Under federal law, child pornography is a category of speech that has been banned regardless of whether it possesses literary, artistic or scientific value. Not every image of a naked or a semi-naked child is "child pornography" under federal law. Rather actual sex or a "lascivious exhibition of the genitals" is required before the picture can be banned as child porn. Images of girls or boys without shirts or underwear, as long as the genitals or pubic area aren't showing, are not even potentially child porn under federal law. Rather they are completely legal regardless of whether they possess literary, artistic or scientific value. Bruce Taylor, president of the National Law Center for Children and Families: "I wouldn't take a picture of my child naked. If I did I would not take a picture of the kid's genitals. You can take pictures of the face, arms, legs, and buttocks." (New York Times, February 19, 1995, 4.) Sound advice if you wish to avoid all gray areas. The U.S. statute, 18 U.S.C. § 2256, defines child pornography as an image of any person under the age of 18 (the CPPA aside) engaging in "sexually explicit conduct," which means "actual or simulated": "(a) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal...; (b) bestiality; (c) masturbation; (d) sadistic or masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any person." The latter phrase is worded in such a way so that an image of a nude child posed with an adult whose genitals are lasciviously exposed could be considered child porn even though the child's genitals were not exposed, lasciviously or otherwise. An item is child porn regardless of what form it takes: undeveloped film, partial computer files that need to be combined to complete an image, and videotapes are all considered to be illegal if they contain forbidden imagery. Had the courts retained the meaning that the phrase "lascivious exhibition of the genitals" had acquired in the field of obscenity law, the federal child porn statute would be far less vague - and dangerous to free expression - than it is now. In obscenity law, "lascivious exhibition of the genitals" was the "beaver shot," i.e., conduct by the person depicted which displayed the genitals in an unabashedly erotic manner. It wasn't something you had to guess as to the photographer's intent, and someone couldn't create it by accident. Rather than follow this somewhat sensible formulation, the courts developed a variable concept of "lasciviousness" which has created an enormous gray area where the question is often not "was a child harmed?" but "did someone think dirty thoughts?" Interpreting "lascivious exhibition of the genitals" is difficult because it nearly always depends upon the facts and circumstances of the case, the character of the defendant, and the quality of the lawyering. But there are general guidelines to follow. Since every picture in which the genitals are visible is an "exhibition of the genitals," the phrase "lascivious exhibition of the genitals" means something more than "mere nudity." Pictures of kids at nudist camps engaging in ordinary activities will generally be taken as "mere nudity" if the photographs don't go close-up and were taken at an angle at or above the child's chest. If the photographs are taken from lower down, with a straight-on view or foregrounding of the genitals, you begin to move into the gray area where the issue of lighting and focus, or who took the images, can become important. Generally-speaking, an "exhibition of the genitals" which is "lascivious" calls extra attention to the genitals in some manner, or presents a view of them which seems primarily intended to arouse someone - usually the maker of the image. United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986) was one of the first cases to give "lascivious exhibition of the genitals" this expansive meaning. The importance of the case is less as legal precedent than as a lesson in how prosecutors and courts have come to construe and understand the law. The images at issue in Dost were a single photograph of a 10-year-old girl taken on a nude beach (Black's Beach near San Diego) and a series of photographs of a 16-1/2-year-old girl on a bed. (Legal scholars might note that the Dost court misreported the age of the older girl as fourteen. The Stipulation of Facts in the case set her birthdate at December 26, 1967 and the date of the photography session on June 16, 1984.) The latter photographs were clearly "child pornography" under federal law, as the girl's legs were spread apart and the expression on her face made clear the erotic nature of her pose. They fit the classic definition of "lascivious exhibition of the genitals." The photograph of the 10-year-old, however, was ambiguous at worst. As described by the Dost court, the 10-year-old was posed by one of the defendants in such a manner as to raise her pelvis toward the camera, with one leg splayed out to the side. The defense attorney described it as a full body shot (head to toe), taken from about ten feet away, which showed the girl sitting next to her brother, looking toward him. She had just had her body painted and was showing the painting to the photographer by lifting herself up so that her chest and abdomen were aimed toward the camera. The girl's genitals were partly in the shadow of her leg, partly in sunlight. The Dost court noted that there was nothing erotic about the 10-year-old's demeanor. Beginning with the assumption that ten-year-old children were incapable of acting in a way that we would recognize as erotic (he had obviously never seen actual child pornography), the judge said that we have to look at the setting and the context in which the image was taken in order to determine whether the image of the younger girl is "lascivious." First, the judge ruled, The average 10-year-old sitting on the beach, especially when unclothed, does not sit with her legs positioned in such a manner. If that was step one of the slippery slope, step two was easy. The photographer had asked the girl to show off the scene which someone had painted on her abdomen and chest. Hence the girl had been manipulated: This unusual pose is one that an ordinary child would not normally assume but for adult coaching (as was the case here). Step three was enumerating the factors which, in the judge's consideration, could signal "lasciviousness." These included whether (a) the focal point of the visual depiction is on the child's genitalia or pubic area; (b) the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity; (c) the child is depicted in an unnatural pose, or inappropriate attire, considering the age of the child; (d) whether the child is fully or partially clothed, or nude; (e) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (f) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. " Of course," the court wrote, a visual depiction need not involve all of these factors to be a "lascivious exhibition of the genitals or pubic area." The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor. When the judge looked at the overall content, he found that the picture satisfied factors (a) and (f) of his list. Ample evidence was presented at trial that the defendants were erotically attracted to young girls. The Dost factors have been used by many courts, as well as the U.S. Justice Department, in analyzing photographs as potential "child pornography." In United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), an appeal by one of the Dostdefendants, the Ninth Circuit dispensed with the "Dost factor" analysis and concluded simply that "lasciviousness" was not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or like-minded pedophiles.... The picture of a child "engaged in sexually explicit conduct" ... is a picture of a child's sex organs displayed lasciviously -- that is, so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur. In other words, a depiction of "sexually explicit conduct" can be one in which the child is completely unaware that her behavior - or lack of behavior - is "explicit" or even "sexual". All that is necessary, the Ninth Circuit ruled, was a finding that "the photographer arrayed [the photograph] to suit his peculiar lust...." The U.S. Supreme Court declined to review Wiegand, allowing it to stand as a valid interpretation of the federal law. The Dost and Wiegand cases establish that photographers who can be shown to be erotically attracted to their subject matter run a higher risk than others of inadvertently creating "child pornography" when they photograph minors whose genitals are visible. This raises troubling questions, such as what evidence is sufficient to determine when a photographer is acting with erotic intent, or what happens in the adversarial process when someone really hasn't acted with erotic intent but the prosecutor knows s/he needs to prove the contrary. When the feds seized a copy of Nabokov's Lolita from Jock Sturges, they were hoping to establish Sturges' "lascivious" intent by pointing to his choice of reading material. United States v. Knox further expanded the scope of the phrase "lascivious exhibition of the genitals." There the defendant was given a five year prison sentence for owning several videotapes which a mail-order company from Las Vegas had made at amateur teen and pre-teen model shoots in Southern California. Unbeknownst to the models in the videos, the videographer of these particular videotapes (not Knox) zoomed-in on the bodies of the fully-clothed models, panning them from head to toe and back again. Occasionally the videographer would catch a flash of panty. In finding the images on the videotapes to be child pornography, the Third Circuit made an intellectually dishonest argument that there could be an "exhibition of the genitals" even though the genitals "were fully covered by clothing." The images were found "lascivious" under the rubric of Dost: the videographer had intended to provide erotic titillation. Although Knox is the only federal case of its type (there are a number of such cases under California state law) it moved the "child pornography" law further into the realm of thought crime and status offense. Post-Knox image-makers need to ask whether their works elicit thoughts about what lies underneath the clothing. "Nothing comes between me and my Calvins" literally becomes a dangerous idea. What about an image exhibiting a child's genitalia which is motivated by considerations of art? There is a compelling argument, not recognized in any court decision, but often implicit in the process of inquiring as to what is "lascivious" and, most importantly, of making prosecutorial decisions, that motivations of art tend to negate those of "lasciviousness". Many prosecutors, including the U.S. Justice Department (in 1995), have declined to prosecute Jock Sturges' work because they know that in such an obvious cases distinctions can be made-if not by the prosecutors, then certainly by defense teams and, potentially, juries. The amateur photographer or would-be artist will find little solace here: it is artistic or commercial recognition combined with a sophisticated visual vocabulary that tends to separate the porn from the not-porn. Many amateurs have been convicted under the federal law despite their earnest attempts at creating something beyond the merely arousing. However, this principle in part has served to protect images by Sally Mann, Jock Sturges, David Hamilton, Graham Ovenden, Walter Chappell, and a host of lesser-known photographers. Of course local prosecutors often have no understanding of these issues, operate under state laws, and often prosecute any depictions of childen's genitalia. So far under federal law the meaning of "lascivious exhibition of the genitals" has not been expanded to include depictions of children's genitals simply because perverts might find them arousing or because they have been published in a forum (such as certain Internet newsgroups) where perverts might enjoy them. This is because [a]lthough it is tempting to judge the actual effect of the photographs on the viewer, we must focus instead on the intended effect on the viewer.... If we were to conclude that the photographs were lascivious merely because Villard found them sexually arousing, we would be engaging in conclusory bootstrapping rather than the task at hand - a legal analysis of the sufficiency of the evidence of lasciviousness. (United States v. Villard, 885 F.2d 117, 122 (3d Circuit 1988).) A similar result was reached in Faloona v. Hustler Magazine, Inc. (607 F. Supp. 1341 (ND Tex. 1985), aff'd, 799 F.2d 1000 (Fifth Circuit, 1986), where images which actually focused on genitals of children, originally made for a sex education book called The Sex Atlas, were found not to be "obscene" or "child pornography" simply because they were reprinted in Hustler Magazine. Any other result would have lost sight of the only important question in child pornography law: was a child harmed in making this image? *Vituperative: having the nature of or characterized by bitter, abusive language; abuse
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