Monday, August 17, 2009

This one's not a felony, it turns out

I've written here and here about Stacey Anvarinia, the woman who was found guilty of felony child endangering and sentenced to six months for drunken breastfeeding. It turns out that there's good news in her case. She didn't have a camera handy.

As Jonathan Turley noted via
Alaska Live which just stumbled across this old story at, a couple in Richardson, Texas wasn't so lucky.

Jacqueline Mercado and Johnny Fernandez are Peruvian immigrants. She came first, and they were delighted to be back together after he emigrated. It was also their son's 1-year birthday. To celebrate, they took pictures of themselves and their child. They took them for 1-hour processing at an Eckerd Drugs. (This is before everyone had digital cameras; and it's a damn shame they didn't have one.) The one of their son getting out of the bathtub set off the Eckerd alarm system and the drugstore called the cops. Cops took one look at the picture, next thing you know, they're rummaging through the Mercado/Fernandez one-room home. And they find a photo of the boy breastfeeding.

Kids taken out of the home. Charges of child pornography. Possible 20 year sentence. For the one picture of the breastfeeding 1-year old.

Prosecutors eventually dismissed the case, though they called it a close call. Finally, a week after the story ran in the Dallas Observer, Child Protective Services returned the boy to his parents. After 5 months.

It's a horrible story. If it were unique, I probably wouldn't write about it. Just another example of overzealous cops and prosecutors pursuing their own agendas (agendae?) until the disinfectant of public obloquy got them to back off. Alas, it's not unique.

There is, for instance, the case of 59-year-old Donna Dull who dropped off some film at WalMart. The photos included pictures of her 3-year-old granddaughter in and getting out of a bath. 15 months later, the child pornography charges were dropped. The special prosecutor who dismissed the case said there's no problem; people like Ms. Dull who take innocent pictures will never be charged or prosecuted? Except sometimes.

Then there's Jody Jenkins who took some pictures of his kids, during a family camping trip. Eckerd's. Police. Child protective services. Months of horror and fear.

Then there's this whole set of stories mentioned here.

I'm not arguing in favor of child pornography. It's real and it's a problem. But not every photo of a naked kid (or a suckling one) is porn. Parents take those pictures all the time. Child on bearskin rug is iconic. So is mother giving the breast to her child.

We endow police and prosecutors with enormous discretion, and the damage they can do when the discretion is abused is incalculable. But the real problem here, in these cases, isn't with the cops or the prosecutors (though they could all certainly have exercised some real and sensible restraint). The real problem is with a culture so fearful of predators and so horrified (and yet attracted to) the sexualization of children that it seems to encourage this sort of behavior. (See the sexting cases, which I'll speak of in detail another time, for a clearly related example.)

As we struggle to protect the children, so we demonize the parents. And, of course, the children suffer along with them.

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