The La Perla Exception

by Belle Waring on April 2, 2004

Eugene Volokh has a post on whether pictures of naked children are regarded as per se child pornography, and what legal standards are applied to determine the status of such photos. The conclusion he draws is, be careful: “So when in doubt, you might want to cut down on the nude pictures, especially once you’re getting past the clearly socially well-accepted (e.g., the naked infant in the tub).” This is probably right (consider this case of a woman charged with child pornography for a photo of herself breastfeeding her naked one-year-old — her children were taken away by the state for a time before charges were dropped), but really very depressing. The curious thing about this attitude is that under the guise of protecting children from exploitation, it unnecessarily sexualises them. The vast majority of people are not pedophiles, and if they want to take pictures of their naked children frolicking in the sprinkler they should not have to worry that some busy-body at Rite-Aid is going to narc them out to child welfare. Children like to run around naked, and it would be wrong to give them the idea that all the adults around them regard this as titillating. It’s enough to make you get one of those home printers for your camera, though, so that you’re not haled off to jail for posing your toddler on the sheepskin rug. How are we meant to embarrass her in front of her prom date, I ask you?

This brings to mind another conundrum, roughly the inverse of the first, namely: why aren’t the editors of fashion magazines regularly being charged with child pornography? Now, it’s true that such magazines don’t feature pre-pubescent children, who are the focus of most serious enforcement. Nonetheless, most models being their careers at 14 or 15, and many at 13 or even 12. And no one could deny that much fashion photography meets the tests Volokh cites as laid out in US v. Knox:

1. whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
2. whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;
3. whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4. whether the child is fully or partially clothed, or nude;
5. whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
6. whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

I think particularly of a Vogue Italia spread from a few years back (European fashion mags regularly show the models topless, unlike their US counterparts). It was a lingerie shoot, and the two models were unquestionably under 15. The look was very soft-focus, 70’s Penthouse, with the young ladies disporting themselves over various chaises and such in a decrepit villa. Manifestly, if the same photos had appeared bound between the covers of some more pruriently titled publication, the whole thing would have been a serious crime. So, what’s the deal? A grandfather clause, since fashion mags have been offering up scantily-clad girls below the age of consent since at least the 60’s, with no complaints so far? Or perhaps the rule is that if the underwear cost more that $200, you’re off the hook. Would-be pornographers, take note.

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dog1 04.02.04 at 5:57 am

It reminds me of a Bill Hicks routine. What is the definition of pornography? Any act having no artistic merit that causes a sexual thought. As Hicks said, that covers a large area of advertising.


mc 04.02.04 at 6:37 am

But, unlike small children, the girls who start modelling in their teens are already sexualized, so that kind of photo shoot is not necessarily “an unnatural pose, or inappropriate attire, considering the age of the child”. It might stretch the bounds of good taste, but I don’t think it can be compared to child pornography at all. I don’t think nude photos can even be called pornography really. I don’t know, but I thought the main requirement is that child pornography would show sexual abuse of children.

So that list of requirements seems a bit too vague to me. With little or no effort, you could fit the breastfeeding photo in there too.


chun the unavoidable 04.02.04 at 7:15 am



bob mcmanus 04.02.04 at 8:02 am

“the girls who start modelling in their teens are already sexualized”

That the girls have been already corrupted removes the immorality from all subsequent exploitation? An interesting argument, indeed.


Martin 04.02.04 at 9:23 am

I’m reminded of the fuss around Tierney Gearon’s photos:,6903,450003,00.html

Nappy adverts however regularly fetishise baby’s buttocks, mothers stroking and kissing them (not fathers though). So using your children’s naked bodies for art is wrong but using them to make money is fine.

The personal snapshots issue is even worse, you have to wonder about the employees of some processing centres.


Belle Waring 04.02.04 at 9:34 am

Chun: can you only be haled into court, but must be hauled off to jail? John thinks so. Maybe I’ll change it.

mc: the list of considerations certainly is vague, but it does appear to be the law. I’m not saying the editors of Vogue Italia should necessarily go to jail, I’m just curious as to why some prosecutor hasn’t already tried to put them there, given the current climate. And regardless of whether they are “already sexualized” (in thier first modelling gig, apparently?) it does strike me as exploitative to put girls 16 and under in such sexy poses as one is likely to see in, say, a La Fornarina ad campaign. Or, even worse, Guess jeans.


Bob 04.02.04 at 12:38 pm

For a challenging – or worrying? – historical perspective:

“One of the most frequently asked questions in e-mails concerning Charles Dodgson [Lewis Carroll, author of: Alice in Wonderland] is whether it is true that he was a paedophile. It is interesting that such questions about him have only started to be asked in recent times, fanned, one might suggest, by the considerable publicity that has been given to paedophilia. There are some books and recent articles, some to be found on the world-wide-web, where the tacit assumption is now being made that he did have an unhealthy interest in pre-pubescent girls.” – from:

“In his photography [Dodgson] became the master photographer of Victorian children. He excelled at photographing little girls, especially nude or ‘semi-draped’. Alice Liddell, one of the three daughters of the dean of Christ Church, was one of his photographic subjects, the model for the fictional Alice, and the great love of his life. Later, for unknown reasons, he gave up photography, and much of his photographic archive was destroyed after his death. Only a handful of the girl nudes are known to survive.” – from:

A selective archive of Dodgson’s photography can be found at:


Russell Arben Fox 04.02.04 at 12:41 pm

Belle, I couln’t agree with you more regarding the depressing way in which American hang-ups and overprotectiveness have combined to make a wide range innocent and loving behaviors fall under the “possible pedophilia” label. Melissa and I were delighted to discover, when we lived in Frankfurt back when our oldest was only 3, that German children can and do run around in sprinklers and fountains naked or in their underwear, and no one feels like such is an invitation to moral peril. I think lot of criticisms of American sexual prudery are false or misguided, but this is one which sticks.

Of course, regarding fashion magazines–I consider the majority of the fashion business to be pornographic and exploitative by definition, so your questions don’t surprise me. If half of the energy spent chasing down (usually bogus) pedophilia accusations in the U.S. were spent prosecuting the makers of offensive underwear ads, society would be much better for it.


Jacob T. Levy 04.02.04 at 1:42 pm

I don’t know, but I thought the main requirement is that child pornography would show sexual abuse of children.

As a matter of US law, at least, this is neither formally true nor de facto true. Formally, the rule even includes computer-generated photorealistic imagery, i.e. with no actual children involved in the production. (As far as I can tell there haven’t been prosecutions of cases of non-minor girls made to look like children; but there have been prosecutions of entirely computer-generated images.)

De facto, the emphasis seems to be very much on nudity. Eugene knows this stuff much better than I do and he was very clear that nudity is neither necessary nor sufficient. But between the too-frequent grotesque cases one sees reported in the press (e.g. breast-feeding) and the dogs that don’t bark (fashion modelling), I think it’s nudity that tends to get prosecutors interested, as it were. And this is nuts, for all the reasons Belle describes.

These days in the U.S. I think the digital camera/ home printer combination might be a good idea even for the bathtub pictures.


Geoff 04.02.04 at 3:49 pm

Formally, the rule even includes computer-generated photorealistic imagery, i.e. with no actual children involved in the production.

Outrageous. You’ll take my computer-generated photorealistic child pornography from me when you pry it from my…

Oh, never mind.


judson 04.02.04 at 4:10 pm

I’m reminded of the album cover for Nirvana’s Nevermind..a naked baby underwater grasping at a dollar bill on a hook..anyway some enlarged posters of this image had airbrushed out the child’s penis.
I decided these kinds of absurd edits are the main cause of true pedophilia..


novalis 04.02.04 at 7:31 pm

Formally, the rule even includes computer-generated photorealistic imagery, i.e. with no actual children involved in the production.

No it doesn’t. Unless I’m misreading that case terribly. Hm, unless you mean by “formally” that the law is still on the books even though it’s been declared unconstitutional.


kingsley 04.02.04 at 8:00 pm

in seach of business partiners


kingsley 04.02.04 at 8:03 pm

i de here oooooooooooooooooo


kingsley 04.02.04 at 8:07 pm

in seach of business partiners


Troy 04.02.04 at 9:00 pm

The Texas case mentioned above is outrageous! Is there something in the water in Texas? What the hell?

Child sexual abuse is unbelievably horrible. The problem is all too real.

But the assumption that nudity is dangerous is very wierd, and the view of breastfeeding as a sexual act is absurd and twisted. This must be something to do with American culture, something about overprotectiveness, the fear of strangers, and left-over Puritanical views of the human body.


p.s. Thank G*D for the existence of Child Protective Services, but this case is a sin of commission, of over-zealous prosecution.


Robin Green 04.02.04 at 9:29 pm

Judson, that doesn’t necessarily have anything to do with paedophilia. Some would find it indecent and/or gross to be confronted with genitalia in advertisements in public.

Even if that genitalia happens to belong to a baby – or even a fictional cartoon animal (I note that Scooby-Doo has no discernable penis).


Zizka 04.03.04 at 12:15 am

Somewhat peripheral, but I believe that immigrant women were taught not to breastfeed as part of Americanization. One third-generation Hungarian-American woman I knew was told by her family ca. 1970 that breastfeeding was unsanitary. This was an issue in Africa not long ago and may still be, when Nestle tried to convince African women to bottle feed.

The Catholic church and part of the medical profession fought for breastfeeding for decades, never with great success I don’t think.

Women being warned by the police not to breastfeed in public is a common story.

So puritanism is part of the story, but there are other odd, still mostly American things going on — commercialization, modernization, naturalization.


Gerard 04.03.04 at 2:45 pm

…still mostly American things


I’ve been teaching in England for nearly two years and have encountered far fewer instances of public breastfeeding than in my hometown of Philadelphia. I spent 5 days in Budapest recently and didn’t encounter a single one.

Anecdotal, to be sure, but…


Matt Brown 04.03.04 at 5:19 pm

Here’s a tough one for you to consider:

“PITTSBURGH (AP) — A 15-year-old girl has been arrested for taking nude photographs of her self and posting them on the Internet, police said.”


SniffyMcNickles 04.04.04 at 3:44 pm

Matt Brown:

What I find most twisted (although it is hard to settle on which part is the worst) is that a minor is being charged as an adult for sexually exploiting a child, who happens to be her.

Many may disagree with the laws as they stand (I, for one, do), but even if one agrees with them, one should attempt to apply them in an internally consistent manner.


mc 04.08.04 at 10:03 am

bob mcmanus –

“the girls who start modelling in their teens are already sexualized”

That the girls have been already corrupted removes the immorality from all subsequent exploitation? An interesting argument, indeed.

Oh please. “Corrupted”? who talked about “corruption”? Since when does being sexual means being corrupted or immoral? Sheesh…

It’s so absurd and patronizing to make a parallel between child pornography and young fashion models. What I meant with “those girls are already sexualized” – I probably used the wrong term there, but just to reprise from the post – is that they’re already grown up, they’re not 6 year olds, they’re young teens. Young teens already are fully sexual beings, and often sexually active too. Or has everyone forgot what it’s like at that age?

Most importantly, those models are not being exploited unwillingly or unknowingly, or coerced or abused. They’re working, they chose to be there and be photographed, and get paid for it, and no, that’s not enough to establish a parallel unless you’re equating all modelling with pornography, which is just as ludicrous and moralistic.

And it’s not the money part defining the difference, it’s just a wholly different context from child porn. That’s so obvious to me it feels odd to even point it out.

If they’re doing a shoot for lingerie, well, of course their sexuality will come into play. Is that enough to claim they’re catering to paedophiliacs? I don’t think so, not anymore than ordinary pictures of models just a few years older – and looking exactly the same! – cater to sex maniacs. Plus, even in the most risque fashion shoot it’s all so neutralised and abstracted in comparison to porn – or even reality -, there really is no comparison in the first place.

And those photo shoots or ads with really young girls – and boys – in sexy poses are so inoffensive for the most part. Remember the CK lingerie campaign? I never understood what the problem was with that one either. It was just underwear, for gosh’s sake. It was still a lot tastier than what happens _for real_ when 14-year-olds get drunk and mess about – not to mentions what happens on a porn set. So why the shock when the natural sexuality of teenagers gets alluded at in a photo? It’s just hypocrisy to me.


Belle Waring: I understand it is the law in the US, but not elsewhere, there really is a different mentality in Europe on nudity or sexy photos, fashion or not, so I guess that’s probably why no one even dreamt of prosecuting.

I don’t really see the exploitative part in modelling, because those girls – and boys, again – are doing a job, not being abused by some paedophile. The difference, again, is not money, but the whole context, the kind of representation, the intent, and the role they play. They’re there of their own decision, even if they need consent from parents because they’re minors, but I would find it very hard to imagine there is coercion involved when you a) do want to work in modelling, so, are already thinking of a career in that area and b) you get the chance to pose for Vogue before you’re even allowed to drive…

Like I said, not all those kind of fashion photos involving young girls and boys may be in good taste; some may be playing on the young teen sexuality in terms that are a bit too ambiguous, and that’s often part of the intended effect. But that’s still _entirely another matter_ from the kind of exploitation of child pornography. Just like the difference with babies in nappies or being breastfed or young children playing around naked in a pool. Anyone confusing that with porn must have really no clue what child porn actually involves. It’s not about crossing a thin line, it’s such a blindingly huge difference between what is only natural and what is a perversion that does involve violence and abuse.

Just because there are perverts projecting their warped fantasies onto what is natural, doesn’t mean we should give up seeing it as natural and seeing the difference with the perversion. You can’t let paedophiles define what is paedophiliac, cos when they get turned on even by ordinary pictures of naked babies, that’s their own problem, but it still doesn’t make those pictures pornographic of themselves. Same with fashion shoots, even when the sexuality is overtly represented and played on. Playing with sexuality is still something quite different from exploitative pornography.

And, besides, pornography in general is not necessarily exploitative, it is still another matter entirely from child pornography, where you do have abuse.

Aside from that, I personally see more pornography in other things that have less to do with sex and photos and more to do with public exploitation of people and children and private matters for sensationalist purposes.

And you know, it always amazes me that so much of the debate on child abuse is focused on the paedophile as some alien monster from outside, or on the child porn industry itself, or on interpretations of advertising as pornography, and the media and law talk of protecting the family as some threatened sanctuary where these things don’t happen if not by external interferences…

Well, then, who is the actual child porn industry catering to? where are all these customers of paedophiliac content? all single and child-less? where are all the child abusers? Statistics say for the most part it does happen within the family. Yet that’s always removed from the debate, at political and legislative and media level. It’s easier to point the finger at tv or magazines or the occasional celebrity scapegoat. It’s kind of depressing, in a way.


mc 04.08.04 at 10:32 am

russell –

If half of the energy spent chasing down (usually bogus) pedophilia accusations in the U.S. were spent prosecuting the makers of offensive underwear ads, society would be much better for it.

Really? You don’t think that energy should be spent on prosecuting real child abusers? On encouraging denounciation of real child abuse cases? On preventing such cases from happening at all?

That there are bogus accusations is not enough to devalue that effort. The hysteria creating bogus accusations is fuelled precisely by that removal, by projecting paedophiliac intent on anything but the real thing. So you get someone denounced for a simple ordinary picture of their children, while there are countless people who continue to abuse their or other people’s children and no one knows or has the courage to report it. Because it is a taboo that it should happen with the family. Because being a victim of child abuse does carry a stigma. Because when it’s your own family you might have all sorts of contrasting feelings and other family members who know what’s going on may feel compelled to hide it.

Just because this kind of real situation, which is the norm for child abuse, is complicated to address, it doesn’t mean it shouldn’t, and that something like ordinary advertising should take its place as main target. Just because the child porn industry is huge, and far more underground in comparison to advertising, and far less easy or convenient to tackle, doesn’t mean we should confuse one with the other.

What kind of threat do underwear ads pose anyway? Do they incite paedophilia? Do you think that’s something that can be incited at all by simple allusions to sexuality in advertising? Isn’t it maybe a perversion that has far deeper roots? Isn’t it maybe more about abuse than sexuality in itself?

Think about it. Making laws on advertising and tv is easy and grants a lot of political publicity. But does it really even begin to tackle the issue? Or could it be making it worse to tackle?

I don’t know, but I do think that when sexuality, even in its most natural and playful representations, even of a commercial nature, becomes something perceived as a source of corruption or a threat in itself, and even the most normal things are considered indecent, then we’re actually giving paedophiles more credit. Letting their warped view take precedence over a healthy one. I think that’s a seriously fucked up way of going at it. It’s politically lucrative, and great for tabloids, but not great for real people involved in real cases of real abuse. What could a young girl possibly have to fear from a La Perla ad or the baby on the Nevermind cover when her stepfather is raping her?

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