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When Child Pornography is Not Child Pornography

Posted On: August 8, 2014 by Marc Neff

There has been an increase in crackdowns on alleged child pornography, especially on the Internet. One must consider the ramifications of assigning the label “child pornography” to distasteful, yet perfectly legal, photos, films or digital renderings.

Earlier this year, the Huffington Post published a poll concerning 13 year old French model Thylane Loubry Blondeau. Blondeau was in the news not because of her young age, but because of a series of shoots she did in 2011 at the age of 10 for French Vogue. At the time of the original shoot, Fox News decried the shoot as just shy of child pornography, claiming the photo shoot could only appeal to pedophiles.

This example, however, offers us a better understanding of the thin line between art and exploitation. Miss Blondeau is a working model whose high-fashion shoots are deemed pornographic by some and artistic by others. The clothing store Abercrombie & Fitch has also been accused of producing racy catalogs as well, and was forced to pull its Christmas Field Guide because of its sexually explicit nature. Thus, we see an American company facing similar allegations in the court of public opinion; they, too, were never charged with any particular crime.

This suggests that there is no one set definition of child pornography in our culture, despite a very clear designation in our laws. In fact, both the Vogue shoot and the A&F catalogs easily fit at least some of the criteria set forth in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) See also United States v. Knox, 32 F.3d 733 (3d Cir. 1994) for determining elements of child pornography:

• Whether the focal point of the visual depiction is on the child’s genitalia or pubic area

• Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity

• Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child

• Whether the child is fully or partially clothed, or nude

• Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity

• Whether the visual depiction is intended or designed to elicit a sexual response in the viewer


Despite what media outlets report, allegations of child pornography are rarely “cut and dry,” and the only way to ensure one’s legal rights are protected is to hire an attorney whose experience in this realm of defense is unmatched. Philadelphia lawyer Marc Neff has spent the last 25 years protecting the rights of those facing insubstantial or erroneous charges. He is a frequent lecturer on the topic, and uses cutting-edge technologies to create defense strategies for his clients. To schedule a confidential consultation with Marc Neff, please call (215) 563-9800 or email Marc@nefflawoffices.com.

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