September 2009 – Amy A. Hasinoff

An Arizona couple is suing Walmart after a film developer reported their bath-time photos to authorities. From ABC:

For A.J. and Lisa Demaree, the photos they snapped of their young daughters were innocent and sweet.

But after a photo developer at Walmart thought otherwise, the Demarees found themselves in a yearlong battle to prove they were not child pornographers. …

The Peoria, Ariz., couple had their home searched by police and worse, their children — then ages 18 months, 4 and 5 — were taken from them for more than month. Their names were placed on a sex offender registry for a time, and Lisa Demaree was suspended from her school job for a year. The couple said they have spent $75,000 on legal bills. …

“These photos were never intended for anyone to see except for family members,” Treon said. “Perversion is in the eye of the viewer.”

Eventually, a judge threw out charges against the Demarees, but now they’re going on the legal offensive by suing the state, the city and Walmart for their role in what they call a “nightmare.”

ABC News Video.

More commentary at: Wall Street Journal Law Blog

1. Failure to keep adequate records

Reading through a new law review (.doc in draft) on sexting, I came across this:

Under federal law, moreover, any person who “produces” sexually explicit images, including “lascivious exhibition of the genitals or pubic area” is required to maintain certain detailed records and to keep his or her home available for FBI inspections.

Indeed, the relevant part of the US Code does make it clear that one must keep meticulous records of the performers in any sexually explicit images or videos that one creates, since that producer must:

(1) ascertain, by examination of an identification document containing such information, the performer’s name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations;
(2) ascertain any name, other than the performer’s present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and

So far, I am unaware of any sexting charges that have used this part of the law. But couldn’t young adults who take sexually explicit photos or videos of themselves, even if they are 18 and over, be prosecuted under this law if they don’t keep a photocopy of their partner’s birth certificate?

2. Pandering

The article also explains that a prohibition on offering or requesting child pornography was also recently found to be constitutional:

The Williams case held that “offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment,” thus upholding 18 U.S.C. § 2252A(a)(3)(B) (punishing anyone who “advertises, promotes, presents, distributes, or solicits” child pornography). So under Williams, a text message that says “Hey! Check my hot nude pics on Facebook! C U L8er” could put a teen in prison for 5 to 20 years.

In short, there is a separate law for discussing the exchange of child pornography, even between teens. It is illegal for a teenager to ask another teenager (even politely, without harassing him or her) for sexually explicit photos.