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The mother of my goddaughter's has many times insisted that her girls (3 and 1.5 years old) cover their nipples before she can take a photo of them if they are doing something cute or photo worthy and happen to not have a shirt on (if your familiar with little kids you will know they end up topless semi-often). She has claimed that this would constitute child pornography otherwise.

I am highly skeptical of this. The girls have less in way of 'breasts' right now then I do as a grown man, and I'm not worried about being arrested for indecent exposure if I go swimming with just my swimming trunks on (though in my case inflicting any part of my pasty white body on another may count as a crime against humanity).

Could any image not taken with the intent to be sexual/provocative which happens to have been taken when a toddler wasn't wearing a shirt, but with diapers/pants on, really qualify as child pornography?

The godchildren live in Georgia, though she seems to be concerned about federal laws not state ones.

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Context is important. There is no law against taking a picture of a child who is entirely naked or exposing certain body parts. The laws in question such as 18 USC 2251 refer to the fact that the minor "engage[s] in, any sexually explicit conduct". Sexually explicit conduct is defined in 18 USC 2256, and would include "lascivious exhibition of the genitals or pubic area" (which does not include nipples of anyone). Federal law does not define "lascivious", but the ordinary meaning of the word does not include the situation that you describe. The Justice Department, which goes after child pornographers, provides this guide to federal child porn laws.

Georgia's child porn law is only marginally different, referring to "Lewd exhibition" rather than "Lascivious exhibition" , and including the "Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude" (so a picture of a person holding a naked baby would technically qualify, but is highly unlikely to be prosecuted as production of child porn).

These laws pertain to any form of child porn, including "private use only". Dissemination would be an added charge.

  • Thank you that is a great answer, but does surprise me somewhat. Does that mean a 16 or 17 year old displaying fully formed breasts in a clearly sexual manner doesn't qualify as child pornography under federal law, since it isn't 'genitals or pubic area'? I feel like the pornography industry would have been trying to exploit such a loophole to publish legal 'child pornography' if that was the case. – dsollen Dec 13 '18 at 18:43
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    There is a separate section, 18 USC 2252a, which pertains to dissemination of "child pornography", which has a separate and somewhat broader definition – (B)(i) – which references "genitals, breast, or pubic area". but it requires "between two people" and "graphic sexual intercourse". On the face of it, lascivious breast pictures would be legal, so I suspect that there has been a case-law interpretation of this subsection. OTOH, huffingtonpost.com/judy-farah/… suggests it is federally legal. – user6726 Dec 13 '18 at 19:47
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    A quick scan indicates substantial variation in state laws pertaining to breast pictures. – user6726 Dec 13 '18 at 19:53
  • Is there a demand for looking at 16- or 17-year old breasts as porn? The pornography I'm aware of goes for more sexual activity, and once you put the breasts in a sexual context you're making child pornography. You may also be violating child pornography laws in some states, which can cause problems. If you stick to 18-year-olds and up, you can advertise it as teenager porn and not be in legal danger. I'm not sure there's an issue here. – David Thornley Dec 13 '18 at 19:55
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    Another example would be a photograph taken for medical purposes and there are symptoms on the genitals or breasts. Normally in these cases, these photos will deliberitly leave out the face of the subject to protect their identity. Another case would be to document physical damage to these areas as evidence of a potential crime (bruising, cuts, scars, ect.) as the time between the discovery of the trauma and the court date could allow these areas to heal before they can be entered as evidence in a trial. – hszmv Dec 13 '18 at 21:37

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