She Was How Old? – The Current Dangers of Accidental Involvement of Minors in Erotic Imagery

August 23, 2011

Protecting minors from involvement in adult entertainment is a common theme in politics and law. Each year we see numerous new bills introduced at the state and federal levels, creating stricter punishments for any form of child pornography.  Of course, those in the adult industry do have varying degrees of responsibility when it comes to minors – at least legally.  But where does it end?  When is enough, enough?  More specifically, what can content producers do to make sure they don’t wake up one day facing charges involving sexual exploitation of a minor?  Unfortunately, the answer to that question is becoming more complicated.

Accidentally involving minors in adult material is a very real and serious threat to content producers.  Given the increasing incidence of identity theft, the possibility of a producer being presented with fake licenses, birth certificates and even social security numbers is more prevalent than ever before.  User generated content, without any associated 2257 records, is circulating around adult websites at a rampant pace.  The age of some of these ‘models’ is simply unknown.  Some of this material may depict some random guy’s underage ex-girlfriend.  Such content is a ticking time bomb waiting to explode.

So what is a legitimate adult content producer to do?  Obviously, the more thorough and structured your age verification procedure, the better – but the most in-depth background check won’t necessarily get you out of hot water.  Even following systematic 2257 age verification protocol may not avoid criminal charges, or ensure victory if criminal charges result from underage material.   You won’t get anywhere with defenses like ‘consent’ or ‘misrepresentation’ – when a minor is involved in adult content, welcome to the land of strict liability.  And even if you can surpass the threat of criminal prosecution unscathed, there’s still the prospect of getting hit where it really hurts – your wallet.

Federal law defines “child pornography” as the “visual depiction of a minor engaged in sexually explicit conduct.”  And for those who believe they might be flying under the radar because their content is deemed ‘soft core,’ think again.  The statute can apply even to the images depicting clothed genitals, in a lascivious manner.  If you want to know what ‘lascivious’ means, take a look at the “Dost Factors.”  There have been numerous cases of pedophiles being prosecuted under child pornography laws for taking pictures of young girls in skirts at parades, or in tight bathing suits at water parks. Title 18 U.S.C. §§ 2251, 2252 and 2252A make it illegal to produce, sell, traffic in, or possess, child pornographic materials in a way that affects interstate commerce (which includes the Internet).  All these crimes carry a hefty prison sentence for anyone found in violation.  Despite the severity of their penalties, the sexual exploitation statutes do not specifically require that the prosecution prove the defendant’s knowledge of the minor’s age; effectually making the violation a strict liability offense, regardless of consent or misrepresentation by the minor.

Some good news:  The decision in the Supreme Court case U.S. v. X-Citement Video, 513 U.S. 64 (1994), suggests that those who are not directly involved in the production of the adult content may have a defense if they did not know that the model was underage.  The defendant in X-Citement, a video store owner, was charged with violating the Protection of Children Against Sexual Exploitation Act after selling and shipping pornographic videos containing an underage adult film star, although he maintained that he had no ‘scienter,’ or knowledge, of the materials containing underage pornographic acts. The Supreme Court determined that the Act’s requirement that the defendant “knowingly” commit a sexual exploitation violation did not violate the First Amendment.  The Court decided that since the law could be interpreted in a way that makes it constitutional, that interpretation must be used, therefore finding that the word “knowingly” extended to the age of the model involved in the production.  In effect, the Court’s decision instructs that knowledge as to a model’s age is required for most child pornography offenses, even if such a requirement is not specifically written into the relevant law – at least when we’re dealing with so-called ‘secondary producers’ and distributors, as opposed to original producers.  This component of scienter is required by the First Amendment since these sexual exploitation statutes separate constitutionally protected images from criminal contraband.  The knowledge element, therefore, makes all the difference to secondary producers (e.g. – webmasters) but doesn’t do much to assist the content producers on the front lines (e.g. – photographers, videographers).  However, depending on the skill of your lawyer, and your company’s age verification protocols, you may be able to convince a jury to ‘pardon’ your violation through an acquittal, even if a technical offense has occurred.

Scenario:  You’re an adult entertainment photographer.  You create images that are purchased by and distributed to various adult websites.  You have a robust age verification system in place for all of your models and implement that practice to a tee, but one of the models slips through the system with fake identification and turns out to be underage.  For argument’s sake, let’s say the stars are aligned, you get the best defense attorney money can buy, the most compassionate prosecutor known to man, a jury that takes note of the inequities in the law, and you make it through the ordeal without federal child pornography charges ruining your name or your business.  Sorry, you’re not out of the woods quite yet.

In 2006, 18 U.S.C. § 2255, also known as “Masha’s Law,” was created to provide a civil remedy for a minor to recover damages resulting from his or her injury as a victim of child pornography.  The statute allows the minor to bring a cause of action against any person who possessed, distributed, or produced the unlawful material.  Notably, bringing a suit under § 2255 does not require that the defendant be criminally convicted of any child pornography violation.

Many states have closely paralleled their ‘harmful to minors’ statutes to the federal laws, and in recent years have taken to amending those statutes to address various levels of civil liability as well.  One of the most burdensome sets of child pornography civil liability laws come out of the State of Florida.  Section 847.01357 Fla. Stat. (2010), requires a plaintiff to prove that: (1) the minor plaintiff was a victim of a sexual abuse crime; (2) a portion of the sexual abuse crime was used in the production of child pornography; and (3) the plaintiff suffered personal or psychological injury as a result of the production, promotion, or possession of such materials.  Given the tremendous degree of subjectivity encompassed within the realm of a “personal or psychological injury,” it often proves difficult for a defendant to dispute the applicability of this statute.  If a Florida court believes that a minor has participated in the creation of adult materials, regardless of his or her willful misrepresentation of age, the act is considered “child pornography.”  Therefore, a § 847.01357 violation is likely imminent, as “child exploitation” is purportedly a strict liability crime and lack of knowledge of the victim’s age is not recognized as a defense.  Many state courts are protective of minors and tend to ‘throw the book’ at adults who engage in sexual activity with minors, even if the minor consents or produces a fake ID.  Juries don’t like child pornographers much either – regardless of the circumstances.  It is this type of ‘compelling interest’ in defending children from sexual activity and exploitation that fosters the protective mentality that warrants a court finding injury to a minor based on his or her involvement in adult content, despite consent or intentional misrepresentation of age, since the minor is deemed too young or immature to know any better.

One recommendation for websites operating as ‘service providers’ such as escort directories, forums, and other user generated content sites: Consider registering as an online service provider under federal child pornography reporting laws.  Title 18 U.S.C. 2258A outlines the process and the requirements for reporting and registration.  While not a bulletproof shield against liability, it does help show that you are trying to cooperate in the effort to stem the distribution of child pornography, and may trigger certain legal immunities enjoyed by service providers.

The heightened attention on child pornography production in recent years, coupled with several states passing aforementioned civil liability statutes, makes continued litigation in this arena a virtual certainty.  Minors eventually become adults, and learn that they may be able to financially benefit from any involvement they may have had in erotic imagery, when they were underage. Several content producers have recently learned the hard way about the unforgiving nature of these civil liability statutes.  The current legal environment warrants an intensive re-evaluation of any adult company’s age verification procedures, in consultation with their attorney.  Given the serious criminal and civil consequences resulting from producing any underage material, adult content producers are cautioned to be vigilant in every sense when it comes to age verification, as this is definitely a case where ignorance is not bliss.