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Last week, celebrity gossip blogger Perez Hilton posted an up-skirt photo of Miley Cyrus as she was exiting a car in a short skirt. The question of whether posting material of the underage teen in this manner was appropriate hit the streams and blogosphere and erupted [View the censored image here.]
Then yesterday, Hilton posted another shot, this one from Sunday's Much Music Awards ceremony in Toronto, where the 17-year-old Cyrus performed her song “Can't Be Tamed” in a lacy white body suit adored with ribbons. During her performance, the crotch of her outfit slid to reveal a portion of her pubic area. The image received mixed responses in the comments section.
As FOX News reported, the photo was acquired from Reuters news service, where a source told FOX that, while the photo had raised concern in the photo department, the service had moved ahead with its sale based on the fact that the performance occurred on a stage in front of hundreds of viewers and other cameras.
The Reuters rep also said that the photo was “sent only to print clients and was kept from transmission to online clients and culturally sensitive areas.” But FOXNews.com, an online client, was able to purchase and download the photo, and saw no usage restrictions at all on the photo. [View the censored photo]
THROUGH THE LEGAL GLASS, DARKLY
Whether these photos meet the definition of child pornography is a matter of some debate.
In the case of the Much Music Awards wardrobe malfunction, FOX interviewed Robin Sax, a former sex crime prosecutor here in Los Angeles, who said the picture was not prosecutable based on intent: “Here the picture is taken on stage, in public, and its purpose is not child pornography. It was not intended to promote pornography.”
Sax did however warn that the image was inappropriate and that its sale blurred the lines of what is considered pornogaphy.
“And that it ups the ante in the future, makes it more difficult to say what is pornography and what is not,” Sax said.
In a piece over at Salon following the wardrobe malfunction of Cyrus exiting a car, Tracy Clark-Flory spoke with Jeffrey Douglas, a Los Angeles criminal defense attorney specializing in child pornography cases who told Salon that liability is “extraordinary and intense.”
“We're not talking about a misdemeanor,” Douglas said. “You don't have to know what the definition of the law is; all you have to do is knowingly distribute the photograph.”
All Hilton and other parties have to do to be prosecuted is distribute a photograph deemed to fit the criteria of child pornography, whether for sale or freely.
And despite questions in regard to the authenticity of the photo, the penalties are the same.
“For instance, if you were to take the face of an 8-year-old and put that picture on the nude body of even an identifiable, fully developed adult porn star, it is child-porn punishable identical to if you took a photo of the actual child,” Douglas said.
Even if Cyrus is wearing underwear, according to the law, a case could be made for a variety of violations based on California's Penal Code 311. The core key item here being that the perpetrator knew the person involved was under the age of 18. Beyond that, charges may vary due to the nature of the content being distributed or possessed.
As a general rule, according to the above-mentioned code: “'Obscene matter’ means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
Essentially, content is obscene if the average person deems that it is so offensive that it lacks any redeeming qualities and could only be of interest to those seeking to satisfy their prurient interests. This sort of content, if reviewed, will be looked at in the context of the recipients. Intent is a factor.
The matter is not so clear cut and may be open to state and federal interpretation.
