Child Pornography or Nudist Family Photos? South Florida Man Claims the Latter

A Palm Beach County man is facing federal child pornography charges for allegedly participating in the production of pornographic photographs of his three (young) daughters. While the crimes being alleged are indeed heinous, the reality is a bit more graspable.
According to this Sun Sentinel article, the man and his family – who consider themselves “naturalists” – were living on a nudist colony in Palm Beach County. In fact, as the man and his attorney have argued, the photographs that he participated in the production of were simply family portraits; the girls were nude because they’re naturalists.

The South Florida criminal defense attorneys at Leifert & Leifert know that despite public opinion, in the law, there can be a clear distinction between something illegal and something seemingly wrong. That’s because “illegal” is a matter of written law and legal precedent, and “wrong” is a matter of personal opinion and perspective. This issue is brought to light in the aforementioned case.

The case arose from police retrieving what seemed to be images of child pornography from the possession of the Palm Beach County man’s neighbor, who had taken photographs of the man’s daughters with their father’s permission.

In essence, what the federal prosecutors (and, undoubtedly, countless others) are calling child pornography, the man is calling family portraits of his nudist family. The photographs in question therefore do contain nude photos of three young girls, but the photographs do not depict the girls engaged in acts of sexual conduct, as described by Florida law for the purpose of defining child pornography.

Under Florida law, a photograph of a naked (or partially naked) child striking a seductive pose is deemed “Child Erotica” and is legal under the current State Statutes. Child Erotica becomes child pornography once and only if the photograph is staged and framed such that the genitalia of the child is the focal point of the image.

In the case discussed herein, prosecutors allege that there were one or more photographs that met the criteria for child pornography; however, the man maintains he never gave his permission for such photographs to be taken, and, as such, he should not be held responsible for them. While he is indeed responsible for the wellbeing of his daughters, the liability lies with the photographer who apparently deceived the man as to what types of photographs would be taken.

Here’s where the case gets even trickier than it inherently is. Child pornography cases can be brought by either federal prosecutors or state prosecutors in cases such as the one discussed here, because federal jurisdiction is almost always implicated when the internet was used to send/receive/ the photographs in question. Thus far, we have discussed Florida state law about what defines child pornography and what doesn’t. Federal law is a bit more umbrella-like when it comes to what constitutes child pornography.

Unlike the State Statutes here in Florida, according to the U.S. Justice Department, a photograph can be considered child pornography if it is “sufficiently sexually suggestive,” essentially rendering Florida’s recognition of legal Child Erotica useless. Because of the federal laws, and what he is charged with, the man faces the prospect of spending up to three decades in prison if convicted.

The U.S., on both the state and federal level, has always had difficulty reconciling the virtue of individual liberty with the practicality of law under which all are treated (and held accountable) equally. In certain cases, what is illegal for some people is legal for others for various religious and cultural reasons. Likewise, we should understand that while most people find pictures of nude children abhorrent, the family in question, who consider themselves “naturalists,” regard these particular photos as normal family photographs, in much the same way that a non-nudist family would view a photograph of their family dressed in clothing.

The ultimate decision lies not with the federal prosecutors or the harsh court of public opinion; in this case, as prescribed by our justice system, a jury will decide whether or not the naturalist’s photographs were legal family photographs or examples of illegal child pornography.

If you are charged with a crime in Palm Beach or Broward counties, contact the Law Offices of Leifert & Leifert, a Partnership of Former Prosecutors, for a free consultation to discuss your rights. Call 1.888.5.DEFEND.

For further reading, please review this article about a South Florida man who was accused of viewing child pornography, but evaded prosecution because of Florida’s legal recognition of Child Erotica.

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