- Grandmother sues for alleged civil rights violations
- Read the civil-suit complaint. See 'Reading room.'
Christopher Moore, a special prosecutor in the York County District Attorney's Office, is after "perverts, not parents."
Moore was commenting on the "gray area" between the typical family picture of the 2-year-old getting a bath in the kitchen sink and a picture a pedophile may enjoy.
It can be the same picture, Moore said.
But, Moore added, that is not a reason for parents and grandparents to avoid taking those pictures.
"They're keepsakes," he said. "They remind us of the way they were when they were young before they became a pain in the ass.
"It's not what the (child protection) law was designed for. Your rights are not restricted in any form by the law."
The vagueness of that "gray area" became apparent in May 2005 when police handcuffed a Spring Grove grandmother in a West Manchester Township parking lot on suspicion of child pornography.
Donna Dull, then 59, had dropped off a roll of 35 mm film at Wal-Mart for development. Among the photos, when they were printed, were some of Dull's naked 3-year-old grandaughter in a number of poses.
A Wal-Mart employee contacted West Manchester Township Police and turned the photos over to them. Officers arrested Dull after she returned to the store to pick up her pictures.
A local prosecutor viewed the photos and determined charges were appropriate.
Fifteen months later, after looking at the case "very closely," District Attorney Stan Rebert dismissed the charges, advising the court they should not have been filed.
In an agreement between Rebert and the defense, the pictures in question were deemed "offensive" and were to be destroyed by West Manchester Township Police.
The court-ordered destruction notice was not received by the department, according to court documents. After Dull filed a civil rights lawsuit against the police in 2007, the pictures were forwarded to federal court, where they remain under seal.
Cute or pornographic?
Rebert said in Dull's case, "What made them offensive was their graphic nature. A little girl with her bare butt showing, kind of looking over her shoulder.
"It's a difficult distinction to make. What's a cute butt and what's pornographic?
"I think what she (Dull) did was stupid and in very poor judgment. It was an interesting case and I think we did the right thing."
Attorney John Yaninek, who represented Dull in her criminal case and is representing her in her civil case, said the photographs were not pornographic.
"It's unfortunate she had to hire a lawyer to establish that," Yaninek said.
Yaninek, who declined the York Daily Record/Sunday News' request to interview Dull, said his client's criminal record was cleared "when the district attorney comes into court and says, 'This isn't criminal.'
"But once you are accused of that kind of behavior, the stigma remains."
David Cook, now in private practice, was the prosecutor who authorized the charges against Dull. He declined to say if he disagreed with Rebert's decision to dismiss the charges.
He did say, "There was no legitimate purpose for those photographs. I would never pose my daughter or my step-daughter like that.
"It kind of boils down to a gut feeling. If it feels wrong, it probably is.
Moore and First Assistant District Attorney Jeffrey Boyles, neither of whom was involved in the 2005 case, said at least two other child pornography cases reported by a photo printing center led to convictions here. Neither case involved "a direct family member," Boyles said.
"But some pervert will drop off a disposable camera with child porn," Moore said. "It happens more than you think."
A corporate spokesperson for Wal-Mart in Arkansas could not confirm or deny if the company has any policy about reporting suspected child pornography to police.
She directed all questions about the issue to York County authorities.
Moore said companies that print pictures are not among Pennsylvania's legislated "mandatory reporters," which include doctors, nurses, dentists, daycare, childcare and foster care workers, teachers, school administrators, social services and the clergy.
Sitting in the DA's office last week, the prosecutors said that when confronted with suspected child pornography, "the entirety of the circumstances surrounding the photo" must be taken into account.
"It's a subjective versus objective standard," Moore said. "You think it's cute. Someone else might think different. That doesn't make it a crime.
"Lots of sexual offenders use the Sears catalog to get off. That doesn't make (the catalog) illegal."
"It's a reasonable person standard with the reasonable person being a juror," Boyles said.
"And reasonable people can disagree," Moore said. "That's the gray area. That's when it comes to us."
Boyles and Moore also agreed that parents don't need to worry unnecessarily.
"Family pictures are family pictures," Boyles said.
"But if more of your pictures of your kids are of them naked rather than clothed, you might have a problem."
Amateur photography, child protection laws and technology have changed drastically over the decades, Boyles said. The Internet provides easier access to more and more child pornography and laws have become more detailed and stricter.
The criminal statute of limitations in some child abuse cases now expires 50 years after the victim turns 18.
The attorneys suggested any family bedtime/bathtime photos not be placed on personal web pages such as Facebook or MySpace.
"They can be photo-shopped or morphed and sent out on the Internet for whatever purpose," Moore said.
THE COURTS' VIEW ON CHILD PORNOGRAPHY
In the United States v. Jacob Dost, the U.S. 10th Circuit Court of Appeals identified six factors to determine whether a visual depiction of a minor could be considered pornographic and potentially illegal.
Those factors are:
1. Whether the focal point of the image is on the child's genitalia or pubic area;
2. Whether the setting is sexually suggestive -- a place or pose generally associated with sexual activity;
3. Whether the child is depicted in a pose or attire that is not age appropriate;
4. Whether the child is fully or partially clothed or nude;
5. Whether the image suggests a coyness or a willingness to engage in sexual activity;
6. Whether the image is intended or designed to elicit sexual response in the viewer.
The circuit court conceded the list is not exhaustive, as other factors may be relevant in other cases.
The U.S. Supreme Court also has held that images of children who are fully clothed may constitute child pornography.
Source: U.S. v Dost, 10th Circuit Court of Appeals, 1978; U.S. v Knox, Third Circuit Court of Appeals, 1992
A COURT'S THOUGHTS ON CHILD PORNOGRAPHY
"(L)asciviousness is not a characteristic of the child photographed but the exhibition which the photographer sets up for the audience that consists of himself or like-minded pedophiles.
"Human dignity is offended by the pornographer. American law does not protect all human dignity; legally, an adult can consent to its diminishment. When a child is made the target of the pornographer-photographer, the statute will not suffer the insult to human spirit, that the child be treated as such a thing."
Source: U.S. v Wiegand, 9th Circuit Court of Appeals, 1987