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In Romeo and Juliet (1968), the actress playing Juliet (age 15 at the time), had her bare chest exposed for a bit after sleeping with Romeo. Romeo's actor (who was also underage) had his naked bottom exposed in the same scene. Basically, two underage actors were shown nude after a (presumed) sexual encounter.

Would this make the film constitute child porn, and would possession of it be cause for arrest? It is a fairly celebrated film that's still openly on sale, so I'd imagine it isn't regarded as CP. I'm just not sure what the relevant standard is for why it wouldn't (or would) be considered CP.

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  • What's porn about it? It's pure erotica.
    – Greendrake
    Feb 16, 2023 at 12:43
  • @Greendrake that's why I ask. I have no idea, legally, what the difference is, or that such denominations/categorizations exist.
    – chausies
    Feb 16, 2023 at 12:44
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    This could also factor where the film was made (age of consent is often less than 18 in most U.S. States. In most common law nations, it's usually 16) and time it was made (I could be wrong, but the SCOTUS case that found CP to be illegal was ruled on in the 1970s). If it was made in a place where the age of consent was 16 and/or the there was no law making this criminal at the time, it cannot be made retroactively criminal. Additionally, it could be a case that the actors lied about their age.
    – hszmv
    Feb 16, 2023 at 13:14
  • @hszmv the age of consent is not particularly relevant to child pornography laws. Child actors typically lie about their age by claiming to be older than they really are.
    – phoog
    Feb 16, 2023 at 17:49
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    @Jen I personally find the question perhaps more interesting as it is. Feb 16, 2023 at 18:20

3 Answers 3

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From the justice.gov site

Federal law defines child pornography as any visual depiction of sexually explicit conduct involving a minor (persons less than 18 years old).

So no, the mere showing of a naked chest or bare bottom does not constitute child pornography.

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  • That doesn't seem right. If someone had a bunch of pictures of naked underage girls, there's no way in hell they wouldn't be arrested for CP, even if the pictures didn't display explicit sexual acts.
    – chausies
    Feb 16, 2023 at 18:28
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    Also, for what it's worth, the scene literally depicts them making out in bed (while the underage girl is naked, with her chest exposed), which I assume would bleed into the "sexually explicit conduct" criterion.
    – chausies
    Feb 16, 2023 at 18:35
  • @chausies For purposes of the federal law, at least, that's not sufficient to establish "sexually explicit conduct." See the definition in my answer below.
    – bdb484
    Feb 17, 2023 at 12:38
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Child pornography laws vary between the federal and state government, and then from state to state, as well. At the federal level, the 1968 version would not constitute child pornography.

Under 18 USC 2256, child pornography only includes depictions of minors (under the age of 18) engaged in actual or simulated "sexually explicit conduct," which is defined to include only:

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the anus, genitals, or pubic area of any person;

I don't see a good argument that the film meets any of those criteria.

I'd call it unlikely that the film meets the criteria for child pornography under any state law. I don't believe I've ever seen such a law that both (1) goes beyond prohibiting depictions of sexual conduct to mere depictions of nudity; and (2) contains no exceptions for material with serious literary, artistic, political, or scientific value in hopes of avoiding First Amendment problems.

This is not to say that such a law does not exist or that such a law would be unconstitutional under the First Amendment.

In New York v. Ferber, 458 U.S. 747 (1982), a defendant who sold videos depicting young boys masturbating was convicted under New York's child-pornography laws, which imposed felony penalties on anyone who "produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age." New York's appellate courts overturned his conviction, holding that even if Ferber's videos were not protected by the First Amendment, the entire child pornography law was unconstitutional because it would not protect materials that "deal with adolescent sex in a realistic but nonobscene manner." But the U.S. Supreme Court reversed and reinstated the conviction, rejecting Ferber's argument that the First Amendment required such accommodations:

While some States may find that this approach properly accommodates its interests, it does not follow that the First Amendment prohibits a State from going further. [This] standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question ... of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production.

One might therefore write a law broadly enough to include the 1968 version of Romeo and Juliet within the definition of child pornography. For instance: "It is illegal to create, possess, or distribute child pornography. "Child pornography" means any visual depiction of (1) a minor engaged in sexual conduct; or (b) a minor's breasts, genitals, or buttocks."

There would still be plenty of room to argue about whether it was constitutional, primarily because the state's interest in protecting minors from sexual exploitation is less obviously implicated by a film depicting minors kissing or walking around naked than by a film depicting them engaged in actual sexual conduct.

But if that law did survive a First Amendment challenge, Romeo and Juliet would likely become illegal. Virtually all of the objections raised in the various comments throughout this post would be legally irrelevant, as it would not matter where the film was made, when it was made, whether the children were above the age of consent, whether the actors lied about their ages, that the actors were only partially nude, that the film doesn't meet the standard for obscenity, that the film has serious artistic value, or that the actors suffered no actual injury from participating.

The only things that would matter would (1) whether the film depicts a minor's breasts, genitals, buttocks, or sexual activity; and (2) whether you have created, possessed, or distributed that film.

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Would this make the film constitute as child porn, and would possession of it be cause for arrest?

Since the film was made in Italy, Italian law would apply.

The Italian Penal Code, for Articles 528 and 529 contains the word Obscene in conection of shows/activities.

It is not clear which Articles covers softcore porn in Italy.

Minors cannot give their consent on their own, so it would be a matter of the parents to deside.

In Romeo and Juliet (1968), the actress playing Juliet (age 16 at the time iirc), had her bare chest exposed for a bit after sleeping with Romeo. Romeo's actor (who was also underage) had his naked bottom exposed in the same scene.

It is unlikely that a judge would come to the conclusion that the scene was Obscene, if anything softcore porn would be more likely.

Since, it is claimed that the producers had the parents written consent, it is unlikely that anything would come about in this case if it were held in Italy.


Pornography in Italy Legal status - Wikipedia
Articles 528, 529, and 725 of the Italian Penal Code, which respectively sanction as felonies "Obscene publications and shows", "Obscene activities and objects", and "Commerce of publications, images or other objects offending public decency".
Minors cannot give legal consent to appear in pornographic productions of any kind, even though the age of consent in Italy varies from 14 to 16 years.

2023-01-06: Franco Zeffirelli’s son criticises Romeo and Juliet actors for nudity lawsuit | Franco Zeffirelli | The Guardian
Zeffirelli [son of Franco Zeffirelli] pointed out that Hussey went on to work in Franco Zeffirelli’s miniseries Jesus of Nazareth, and that Whiting attended his funeral.
Zeffirelli said he believed the film’s two producers, John Brabourne and Anthony Havelock-Allan, had consent forms from the actors’ parents.


UPDATE:

2023-05-26: BBC News - Actors lose Romeo & Juliet nude scene lawsuit
A Los Angeles judge says she will dismiss a child sex abuse lawsuit brought by the stars of the 1968 film Romeo and Juliet.

Olivia Hussey and Leonard Whiting alleged the film's director coerced them into filming nude while underage.

A Superior Court judge found the scene wasn't "sufficiently sexually suggestive" to overrule First Amendment protections.

Hussey was 15 at the time of filming and Whiting 16.

In a tentative ruling issued on Thursday, Los Angeles Superior Court Judge Alison Mackenzie said the plaintiffs "cherry picked" which statutes applied to their case. She also said the lawsuit did not meet the requirements for suspending the statute of limitations for child sexual abuse.
...

I see this as a confirmation of my opinion.

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    But even if something was completely legal and had consent from all relevant parties in another country, would it not still be considered and dealt with as CP in America? Like how even a lawfully obtained gun in America would be illegal in Canada.
    – chausies
    Feb 16, 2023 at 14:20
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    In the US the laws regarding possessing something (CP or a shoulder fired missile) do not care in what country it was made or the circumstances of its making. Why the focus on the making of it when it’s irrelevant? Feb 16, 2023 at 16:54
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    @GeorgeWhite Yes, a lot of focus on totally irrelevant factors here. There are really only two main questions to be asked: (1) what do the child pornography laws say in the state we're concerned with; and (2) do those laws survive First Amendment scrutiny under Ferber and Free Speech Coalition?
    – bdb484
    Feb 16, 2023 at 17:46
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    @MarkJohnson No, a US court might not have jurisdiction over a charge of the production of CSAM or a charge of child abuse, but a US court certainly has jurisdiction over charges of possession and distribution of CSAM, both of which are crimes (CA Penal Code 311.1(A)).
    – user71659
    Feb 16, 2023 at 20:41
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    @MarkJohnson Unlike some countries, US film ratings are voluntary and are purchased from a private organization, the MPA (formerly known as the MPAA). They are not a governmental approval of any sort, and no rating is needed to show a film.
    – user71659
    Feb 16, 2023 at 21:25

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