Third Base Foul Line

Child porn panic

Jacob Sullum from the October 2011 issue

In June, administrators at Big Bear High School in San Bernardino County, California, ordered a yearbook recall. The defect that triggered the recall was a photo from the winter formal in which two students, apparently captured by accident, can be seen messing around in the background: A 17-year-old boy has his hand up the skirt of a 15-year-old girl.

Police warned students that if they tried to keep their unexpurgated yearbooks they could be charged with possession of child pornography, a crime punishable by up to a year in jail and a $2,500 fine. Under California law, it does not matter whether “sexual penetration” actually was occurring when the photo was taken, since pictures of minors “simulating sexual conduct” also count as child pornography.

But it does matter whether a person possessing the yearbook notices what seems to be happening in the background of the picture, since the penalties apply only to someone who “knowingly possesses” child pornography. By explaining why they were recalling the yearbook, school officials made every student who had not taken a close look at the suddenly controversial image subject to arrest. In fact, the school officials themselves were guilty of knowingly possessing child pornography from the moment they collected each returned yearbook until they excised and destroyed the offending photo. Since they did not notice the sexual content until after the yearbook was published and handed out, however, they probably do not have to worry about distribution charges.

By the end of June, the boy in the forbidden photo was being investigated for “sexual penetration of a minor,” which can be a misdemeanor or a felony depending on the circumstances. If convicted, he would have to register as a sex offender.