09 December 2009

Hello Little Girl!

This was a song by the Fourmost, a Mersey Beat Group. The song "Hello Little Girl" is a song written by John Lennon and Paul McCartney in 1957 and was used as one of the songs at The Beatles unsuccessful Decca audition in 1962. It is the first song ever written by John Lennon. Of course, Bryan Epstein passed around the fame and talent amongst the Mersey Beat Groups.

But that's not what I want to talk about. I want to talk about contesting a Search Warrant for Child Pornography.

It seems our client was caught by a computer technician who was doing a scan of his hard drive. The scan turned up pictures of scantily dressed children in sexually suggestive poses. We are contesting the search warrant as being without basis. The question is what is the magic wording for child pornography in the Statute. My senior, who never cracks a law book, was upset that I even made the suggestion. But the wording in question is:
any visual depiction, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct or the simulation of such conduct.

Depictions of even a clothed child can violate law (E.g.,18 U.S.C. §§ 2252(a)(2), (4) and 2256(2)(E)) if they constitute "lascivious" exhibitions of the genitalia or pubic area. The 10th Circuit Court of Appeals has defined "lascivious" as "tending to excite lust; lewd; indecent; obscene; sexual impurity; tending to deprave the morals in respect to sexual relations."

So, my question is are the depictions such that they are "tending to excite lust". Although, that is a pretty vague concept. Is a picture of child in a long flannel granny nightgown sitting with her legs spread child pornography even if you can't see anything? What exactly excites lust. Could this picture excite lust? I mean her pose seems a bit coquettish to me.

Also a pedophile is likely to have feelings of lust for children even if they are modestly dressed whatever their demeanour. On the other hand, most people are repulsed by child pornography. And, having seen enough of it as evidence in the cases I've worked on, it is pretty revolting. So are we using a reasonable person test here? Or if it looks disgusting, it must be disgusting. Where is John Mortimer when we need him most!

Besides writing the Rumpole stories, John Mortimer is best known for defending cases relating to claims of obscenity which according to Mortimer were "alleged to be testing the frontiers of tolerance". The thing is that we aren't testing the limits of tolerance, but how far can the law go?

Anyway, we are lucky in that our law isn't as vague as US federal law. The point I am making here is that one needs to be aware of the wording of the Statute when interpreting law. Although, it is a hard concept for most people to grasp since my Senior and some Judges have problems with this. It doesn't suprise me that most laymen has this problem as well.

Anyway, the prosecution must make a case that the basis of the Search Warrant was that there was a suspicion of illegal activity, which merely scantily clad children in provocative poses, but not engaged in or simulating sex acts, does not qualify.

Footnote to this: It seems that there have been proposals in the US legislature and some state legislatures to ban child modeling sites for precisely this reason: the poses can be interpreted as child pornography.