You better think twice before you take those cute pictures of your little ones playing in the bathtub. You could be charged with a crime, have your children taken away by child welfare authorities, lose your job and end up labeled a sex offender. This may sound outrageous, but it is exactly what happened to one Peoria, Arizona family.

In the fall of 2008, the nightmare began for A.J. and Lisa Demaree and their three young girls when they brought their memory stick to the local Walmart for development. The photo lab technician noticed that some of the pictures showed their partially nude children taking a bath. All the girls were under 5 years old at the time. The technician contacted the police about the pictures, and the police agreed that the innocent photos amounted to child pornography.

Child welfare authorities took custody of the Demaree children and began investigating. Mrs. Demaree was suspended from her job and the parents' names were placed in the sex offender registry. After fighting the accusations and racking up $75,000 in legal fees, the Demarees were finally cleared and their girls were returned. The Demarees are now suing Walmart, the City of Peoria, the State of Arizona, and state officials to recover damages resulting from the fiasco.

Life Imitating Art

In a similar case, Jacqueline Mercado took a few photos of her young boys, ages 1 and 4, at bath time. She also took one photo of her breastfeeding her youngest son. These photos were among 4 rolls of film that she brought to Eckerd Drugs for development. The photo lab technician viewed the pictures and called the police who responded and determined the photos were pornographic. The child welfare authorities took the boys into custody and placed them in foster care.

Based on the one photo depicting Ms. Mercado breastfeeding the baby, the Dallas County District Attorney's Office obtained a grand jury indictment against Ms. Mercado for "sexual performance of a child," a second degree felony punishable by up to 20 years in prison.

Ms. Mercado's defense lawyers sought dismissal of the charges, arguing that, through the ages, images of women breast-feeding have been viewed as art. They used the Lucca Madonna, the famous 15th century painting by Dutch master Jan van Eyck, as their star exhibit. In addition, they pointed out that in Ms. Mercado's native Peru, memorializing the act of breast-feeding in a snapshot is as common as a photo of a baby's first step.

Soon after, the District Attorney ordered the criminal charges dropped. However, the boys are still in the custody of child welfare authorities. Ms. Mercado's attorneys are fighting to have the children returned home.

Legitimate Child Protection Concerns

In the 1980s and 1990s, a number of legal decisions broadened the definition of child pornography to refer to any photographic image, of real children or not, that in any one person's opinion might seem "lewd." The production, distribution or viewing of child pornography became punishable under federal law by a prison term of up to 20 years. In addition, most states passed laws requiring all film processors to report any pictures they found suspicious to the police.

Although the photo lab technicians and the police exercised bad judgment in the Demaree and Mercado cases, there are legitimate concerns over child pornography. According to the US Department of Justice (DOJ) and the National Center for Missing and Exploited Children (NCMEC), child pornography is a multi-billion dollar industry and among the fastest growing criminal activities.

Ironically, if the photo lab technicians had encountered and reported evidence of actual child molestation or sexual abuse they would have been rewarded for their vigilance. If they ignore such images, they can be punished for breaking the law. Nevertheless, we want citizens to report suspected criminal activity to protect society, particularly when it involves the most vulnerable segment of our population, the children.

Questions for Your Attorney

  • What amounts to child pornography? Is it pornography when the image is recorded, no matter what type of media - film, video recording, digital recording? Who is deciding if material is pornographic - if I never have prints made outside my home, but I take my computer in for repairs, and my personal image files are on the hard drive, do I have to worry?
  • Can I go to a photo lab manager and explain the subject of my photos, so they won't be misinterpreted? Or does that just raise more questions?
  • I have a small side business and I take and print photos for families, including maternity and newborns shoots - do I have to be worried about possible child porn allegations?

Tagged as: Criminal, baby porn, baby pictures