As a working photography critic who served in the role of expert witness for the defense in this case, I'd like to contribute something to the now-public discussion of this case and others like it. Unlike almost everyone else who fearlessly vouchsafed his or her opinion, I actually saw the photographs in question, met the photographer, and studied the transcripts of the grand jury hearing, the various interviews with the protagonists, and other materials pertinent to the situation. Perhaps this will lend some weight to my observations. To summarize the event, the defendant -- a serious middle-aged amateur photographer who was enrolled in a course called "Visual Diary" at the International Center of Photography in New York City (a fact that the prosecuting attorney hid from the grand jury) -- photographed his daughter at her suggestion. In a short period of time -- fifteen minutes at the most -- he exposed three rolls of 36-exposure black & white film in a Nikon equipped with a motor drive. The girl's mother, and her nanny, were present in the house and intermittently observing this process, and saw nothing in the least suspicious about it.
In creative-writing workshops, a standard piece of advice and the basis for many assignments is this: write about what you know best. This translates as using one's own inner life, one's immediate surroundings, and one's daily experience as the raw material from which to draw inspiration. The equivalent of this, in contemporary photography education, are assignments in self-portraiture, visual diary-keeping, working with existing family- album material and personal memorabilia, and the interpretive photographing of friends, lovers, family members, treasured possessions, and personal living spaces. It should be emphasized that these are standard assignments, commonplace and even routine among photography teachers internationally nowadays.
The course in which the defendant was enrolled at the International Center for Photography during the time that the photographs in question were made is typical of such workshops. And the pictures he produced are unquestionably among the kinds of images student photographers produce in the process of learning to make what we broadly call "creative photography."
Though he was in the habit of developing his own negatives and making his own contact sheets, this photographer, finding himself unexpectedly busy with other matters, turned these films over to a local camera store for processing and contact-printing. This suggests two things:
- first, he clearly did not believe there was anything legally problematic about these images, in terms of their content, nor that they potentially posed any threat of embarrassment to his family, his daughter, or himself;
- second, that he did not consider the images on these negatives to be highly significant, valuable or precious in any way, financially or psychologically, since it's virtually axiomatic among serious photographers, amateur and professional alike, that you process important negatives yourself.
The camera store, however, called the local police, and the defendant was arrested when he came to pick up his films -- plunging him and his family into a nightmare that lasted over a year, and will probably have a lasting impact on their lives.
*
We are living in a time in which public awareness has been focused, as never before, on the frequency with which various forms of child abuse occur, and on the specific forms of that crime that involve the sexual abuse of children.
I take the issue of child abuse very seriously. Also, I'm aware of the horrendous traffic in child pornography, sometimes called "kiddie porn": images that show children engaged in sexual acts such as genital intercourse and sodomy. Since these images are, for the most part, evidence of criminal acts, they are understandably and properly interdicted and criminalized.
Nudity, however, is not in itself a sexual act, much less a criminal act. It is a condition of life itself. All of us are born that way, and most of us spend a fair part of our lives -- including some minutes and even hours of each and every day -- without our clothes on. Children, in particular, do so; as anyone who's ever been a parent can tell you, it's hard to get kids to keep their clothes on, up to a certain age.
Artists in all media base their creative work on what they see around them. Writers write about their family's daily life. Painters paint their wives bathing, the groceries on the table, the unmade marriage bed in the morning light. Photographers photograph their loved ones doing all kinds of things. Amateurs and professionals alike photograph their kids; that's probably the most universally common kind of photograph made. And, predictably, a lot of the time those kids are buck-naked.
This never used to be a problem. But then, a few years ago, some people in the law-enforcement agencies in this country got the idea that the way to catch child molesters and "kiddie-porn" merchants was to use the people who work in the photo-processing industry as watchdogs. So they notified them to be on the lookout for anything that could be interpreted as evidence of child abuse or child pornography -- including any images involving nudity. In some states, they even passed laws making the photo-processing companies liable to prosecution if they failed to report any such material.
Corporations are prone to cooperate with the authorities in such matters, naturally, especially if there's a penalty involved. So, understandably, they've tended to err on the side of caution, reporting everything, and leaving the decisions up to the police.
Now, child molesters and "kiddie-porn" merchants are generally aware that they're involved in criminal activity, so they're not inclined to use the Fotomat and the local camera store to develop their films and make their prints for them. And most of them wouldn't be surprised to find the police knocking on their doors if they were so foolish as to do so. From reading the literature and following the news reports, I can find little evidence that the processing houses have helped the police uncover many porn manufacturers or pedophiles.
What the processing houses and the police do come up with, however, time and time again, are people who, like the defendant in this case, are flabbergasted to find themselves under investigation, because they have no idea that they've done anything wrong. Sometimes they're just people who keep an Instamatic in the drawer to make the occasional family snapshot, only to discover that the hysterically funny pictures of little Johnny watering the Fourth of July picnic watermelon have somehow come to the attention of the local constabulary. Other times they're serious amateurs like this man, or even professional photographers and artists: people who, within the established and accredited photo-educational system in this country, and in galleries, museums, and publications, have been shown numerous examples of frank, uninhibited photographs of personal/family life by famous photographers living and dead, have been instructed that such photographic activity is a natural and acceptable aspect of the practice of creative photography, and have been encouraged and sometimes even assigned to make and present such images on their own. And have then found themselves criminalized for so doing -- almost always to their utter shock and astonishment.
(This is the first in a two-part series.)
