There is a common tendency for medical school students to believe they have the illnesses they study. Before becoming an attorney, Kristi Couvillon, received her Masters in Social Work. During graduate school, a portion of her coursework included studying the DSM-IV, a compendium of mental illnesses and disorders classified by symptoms. As expected, nearly half the class reported having a myriad of mental illnesses at the beginning of the semester. (“So that’s why I’m so tired and have headaches and am irritable all the time. . .”) Thankfully, the fad wore off by the end of the semester.
Criminal defense lawyers are not immune from a similar symptom. As a criminal defense lawyer with three kids, I was horrified when I first studied the Texas Penal Code’s broad definition of what constitutes indecent or sexually explicit material. In the summertime our kids are allergic to clothes. I went ballistic when I came home one day to find Corinne videotaping the kids running naked through the sprinkler.
After telling me to “stop being a moron,” I realized how studying this area of the law has made me hypersensitive to any depiction of nudity. Our society continually battles with mixed messages about sex. Brittney Spears and Hannah Montana are embraced and accepted by popular culture even though they are ridiculously oversexualized depictions of how prepubescent girls should act and dress. Breast feeding in public, on the other hand, can get you kicked out of the food court at the mall. The only difference appears to be that Brittney is clothed – albeit barely – and the source of mother’s milk is left bare. When the Attorney General of the United States covers up the breast of Lady Justice because he finds it offensive, it is apparent that we are still struggling with the line between art, obscenity, and pornography.
My concern was that when we e-mail a picture of our kids taking a bath together to our family out of state, are we intentionally and knowingly disseminating a lewd, sexually explicit photograph of a minor?
For prosecution under the child pornography statute in Texas, a person must knowingly or intentionally possess visual material that visually depicts a child younger than 18 engaged in sexual conduct. “Sexual conduct” is a fairly broad term: "Sexual conduct" means:
-actual sexual intercourse
-simulated sexual intercourse
-deviate sexual intercourse
-lewd exhibition of the genitals
Most of the definitions of sexual conduct are specific enough that there is no question as to whether the visual depictions constitute sexually explicit material that is harmful to children. However, criminal defense lawyers are paid to be paranoid, and for purposes of discussion, the concept of “lewd exhibition of the genitals” may encompass conduct that is considered indecent but not of a sexual nature. In the indecency with a child statute, the legislature included the prerequisite that the actions are done “with the intent to arouse or gratify the sexual desire of any person.” Although an argument should be made that the Texas pornography statute should include the same phrasing, the problem with sexual behavior disorders and sexual deviance is that even otherwise innocent depictions of nudity can be used in a perverse manner.
Ultimately, the circumstantial evidence indicating the intent, the history of the image, how it was accessed, and for what purpose are far more important for a District Attorney or U.S. Attorney’s decision to file charges than possession alone. As computer imaging technology continues to improve, the law will continue to struggle to keep up with how to treat computer animations that are indistinguishable from real depictions. The original purpose of the statute – to protect children engaged in the production of sexually explicit material – will likely also have to be updated. We anticipate that society will soon revisit the debate started by Andrea Dworkin and Catherine McKinnon years ago as to whether pornography is a safety value for deviant sexual behaviors or encourages them.