A Developing Controversy Child Pornography Laws Have Chilling Effect On Photographers
By Sid Smith
Chicago Tribune - February 20, 1995
Ah, those rallying cries:
Is it art or is it pornography?
Or, more recently and pricklier, is it art or is it child pornography?
The latest brouhaha over artistic freedom comes in one of the thorniest areas of civil liberties and involves a New Jersey man named Ejlat Feuer, 45, whose life, for the past 12 months, has been hell.
He and his family were awakened late in the night a year ago and taken from their suburban Bernardsville home to face grueling police interrogations. Feuer spent time in jail, endured a two-month ban from his home of 18 years, and for a time avoided, under police orders, any contact with his 6-year-old daughter.
His "crime," as he sees it, was enrolling in an amateur photography class. As part of his studies at a nearby photography school, he had snapped some 110 photos of his daughter in the nude. A processing lab, spurred by tightening laws and a growing climate of suspicion regarding such matters, turned the photos over to police.
The resulting investigation of Feuer, a businessman with a longstanding marriage and no criminal record, lasted a year. Now prosecutors have agreed to a pretrial intervention program that could result in clearing his record of the arrest on child-endangerment charges.
In several states, including Illinois, labs are legally required to pass along to police photographic material that might be considered child pornography. Since 1989, failure to do so in Illinois could result in a $1,000 fine to the lab. The law requires the reporting of not only photos with graphic sexual acts involving children but those depicting "any pose, posture or setting involving a lewd exhibition of the genitals of the child or other person."
Some professionals in the art world say these laws, and society's increasing desire to sniff out child pornographers, have a dampening effect on artistic freedom.
"In some ways, my attitude is that I'm glad to see (the Feuer case) making front page news," said Peter Taub, executive director of Chicago's Randolph Street Gallery, 756 N. Milwaukee Ave. "There's a lot of stories going on like this. And usually it has been a professional artist who caused the controversy.
"But when non-artists, for one reason or another, make such images, and this hits one of them, somehow the whole thing becomes more mainstream. I think it needs to come out and be dealt with."
Many laws, he argues, are subject to interpretation.
"The same thing has happened with literary works," he said. "Recently there was a controversy about a law protecting women's rights in Toronto. Material was seized that had actually been written by feminists, but pro-erotic feminists. The law was intended to protect women from being used. And yet it was applied, instead, against women."
A hidden agenda?
Taub sees a hidden agenda in recent attacks on artistic freedom in the U.S.
"If you look at the big controversies over the last five years, many of these artists are people who represent marginalized groups, whether women, gays and lesbians, or people of color," he said.
For example, the late Robert Mapplethorpe, who was gay, and his photographs of nude males set off a firestorm over National Endowment for the Arts funding in 1989-a controversy that continues and threatens the life of the endowment in Congress. Last summer Ron Athey, who is also gay, drew criticism from Sen. Jesse Helms (R-N.C.) and others for a performance piece that used another man's blood smeared on paper that sailed over a Minneapolis audience on a clothesline.
The controversy in those cases, however, involved indirect censorship and the issue of funding-not criminal prosecution.
Moving into a gray area
In the instance of amateur photographer Feuer, Taub admits society is moving into a gray area.
"It's a difficult line to draw," he said. "It struck me from the article that the guy is totally innocent. And yet, for a year, therapists, police, lawyers and even a grand jury spent time probing it."
"I think the real issue here is intention," said Carol Becker, author and dean of faculty at the School of the Art Institute. "In other words, is the interest prurient, and can one determine that?"
"Ours is a society which is fundamentally puritanical about the body and fearful of the body. And yet it's a society so paradoxically obsessed with the body-with health, with how we look, with working out, with getting old. We're obsessed and yet we're terrified of our own sexuality, unable at this moment to imagine an interest in the physical form that wouldn't somehow be perverse."
And what of the preceding decades of sexual revolution?
"Historical change is never linear," Becker said. "A recent cover of Newsweek magazine depicts a child with a dunce cap and a headline about the return of shame. We're trying to reintroduce the concept of shame into a society now viewed as too permissive.
"I think we're smack in the middle of a gigantic backlash, but that's how history always moves. History doesn't just progress. You move forward, then ideas go back, then you move forward some more.
"Here I hear about this father in New Jersey or read about shame in Newsweek while, at the same time, on National Public Radio, I listen to a special on cybersex, involving 12-year-olds having verbal sex with other 12-year-olds and even 50-year-olds on computers."
Becker argues that nudity doesn't necessarily imply prurience or abuse, even when the subjects are children, which is why the whole topic is as complex as it is confounding.
"I think there is something so beautiful and wonderful and exuberant about the bodies of children that nude photos of them recall all our dreams and longings and nostalgia for youth-not one with a sexual bent, but one for the vitality and perfectness of that age. There's a longing for a perfection that's lost, a joy in the beauty of the bodies of infants and children.
"That's why intention is important. To mistrust the relationship between parent and child de facto, to assume something perverse is involved, is a scary position for a society to have backed itself into."
A ledger on censorship
In a case of art monitoring life monitoring art, Paul Brenner recently entered an article about Feuer's agonies into his computer at the Randolph Street Gallery.
Brenner oversees "The File Room," an art installation on censorship throughout history created by Antonio Muntadas. The installation is actually a growing file of more than 400 articles, essays, case studies and comments, some volunteered by outsiders who come across the project on the World Wide Web on the Internet, where it's stored in text, image and spoken word.
Even cyberspace itself-the museum, as it were, where "The File Room" really exists-is now part of the burgeoning debate on censorship and artistic freedom. The Republican Party's "Contract With America" calls for stricter child-pornography laws across the land, and U.S. Rep. Henry Hyde (R-Ill.) heads the House Judiciary Committee, which exercises jurisdiction in the matter. The committee is currently looking into the issue of pornography and sexual content in computer communications.
Feuer's case is by no means isolated. Professional artists also have come under police scrutiny. In 1990 a phone call from a San Francisco lab resulted in a raid on photographer Jock Sturges' studio. Investigators seized 100,000 negatives and an arsenal of photographic equipment. Sturges' photos, which feature nude children, have been exhibited in a wide variety of respected galleries and even some museums. Two years after the raid, a grand jury threw out the case, deciding against an indictment. Sturges, however, had to obtain a court order to get his equipment back.
Now there's Ejlat Feuer.
"I'm no proponent of censorship," said Chicago psychologist Mary Jo Barrett. "But 110 photos? 110? It's not fair to take nude photos of someone who may be too young to understand what they are. How does she know what will happen to them or what they might mean if seen by others years later?
"From a therapist's viewpoint, the issue is one of power. She's at that age where she doesn't really know what the impact is. As a therapist, as a person who is concerned about power in relationships, that bothers me. That's why children have to be protected. They're not sophisticated. I see patients in therapy whose parents left poronography casually lying around the house. I don't think the parents thought anything of it. But it affects children."
Chicago photographer Matthews Parker, 25, uses nude images, mostly of himself, to create what he calls internal landscapes often representing stress.
"Jock Sturges' story broke while I was an undergraduate, and it did really make me nervous," he said. "I was working with a 17-year-old model at the time, and I made sure I got her mother to sign a release. Now, I'm very careful to get releases signed by all the models I work with."
Because of his subject matter, when he held his graduate thesis show at the Savannah College of Art and Design, "it was behind closed doors. A graduate thesis-can you imagine?
"The current climate has scared a lot of people I know. I do look at it as an infringement on artistic statement, on your ability to speak your mind through your work. I work mostly in black and white and develop my own prints. For that and other reasons, if I want to take a nude photo I'll take one.
"But I find all this reactionary and pretty much a sign of the times. My parents took pictures of me and my sister, nude and in the bathtub, and they'll show it to friends to embarrass us still. When growing up, that wasn't a problem. They were just keeping a record of their kids. Today somebody might look at them and say `child pornography,' and that's ridiculous."
"The issue of nude photos of children is not one with an easy answer," said Catherine Edelman, owner of the Catherine Edelman Gallery, 300 W. Superior St.
The debate, she said, has become frenzied on all sides, leading to more sound and fury than clarity or answers.
"I think it just reflects the times," Edelman said. "I'm not one who thinks we need chaos to talk about problems. Do we need the O.J. Simpson case to talk about domestic abuse? No."
