A Model Prisoner

Sexy photos of legally underage teens are common in professional modeling circles, where the transitional ground between innocent child and knowing adult is considered a desirable -- and marketable -- look. "In bigger markets, especially, the fashion industry likes girls very young, thirteen or fourteen," says Frank Martinez, an agent for Denver's Maximum Talent Agency. And the young models are expected to pose in more -- or less -- than pinafores.

"We don't do a lot of sexy stuff here in Denver," Martinez adds. "But girls who want to go to New York or Europe, it's a lot sexier. Nudity is expected. It's not always healthy -- they tell the girls, 'If you don't do this, somebody else will.' But it's the way the business works."

By the time Brooke Shields appeared topless in an advertising campaign for Guess? jeans, she was already an old hand at going without clothes in front of the camera. At the age of twelve, she appeared completely naked in Pretty Baby, a movie about prostitution in New Orleans at the turn of the last century. Shields's appearance in that film was described as art.

British photographer David Hamilton has made a career of taking pictures of naked girls in the name of art, too. His 1995 book, The Age of Innocence, consists almost entirely of photos of completely nude adolescents. Printed underneath the photos are quotes from famous literature. But are fancy words and high-minded ideas the only things that distinguish art from child pornography?

Over the years, people have struggled to define what distinguishes obscenity from innocence, kiddie porn from art.

The first crucial legal distinction was made more than twenty years ago, when the U.S. Supreme Court upheld the conviction of a New York City adult-store owner busted for selling movies of young boys masturbating. The judges agreed that when it comes to children, certain images -- masturbation, bestiality, actual or simulated intercourse, or "lewd exhibition of the genitals" -- should automatically be against the law.

But what, exactly, do vague words like "lewd" and "lascivious" mean?

In 1986, a California judge came up with five simple tests that he said separated a legal image from an illegal one. Each of the tests was designed to preserve childhood innocence -- while taking to task those who would exploit it. When children appear naked in pictures, the judge said, the viewer needs to ask: Is the focal point of the photo on the child's genitals or pubic area? Is the setting of the photo "sexually suggestive?" Is the child depicted in an "unnatural pose, or in inappropriate attire, considering age?" Does the picture suggest "sexual coyness or willingness to engage in sexual activity?" And, finally, is the picture "designed to elicit sexual response in the viewer"?

Today, nearly two decades later, these questions are still considered the legal standard. But even these tests don't apply to all situations. In one case, a judge determined that, even though the young girls shown were wearing clothes, the words "pubic area" could apply to the "uppermost portion of the inner thigh."

The idea of a one-size-fits-all definition of "sexual response" is also complicated. "One person's erotica is another person's belly laugh," Obenberger points out. "As a former thirteen-year-old, I can tell you that if I was desperate enough and there was nothing else in the house, National Geographic always worked great to jack off to. In the end, people will be aroused by whatever's available; you get your sexual kicks where you can. In Muslim countries, a guy will go wild if a girl shows her eyes."

There are even some situations when taking a photo of a naked teenage girl specifically to get aroused may not be wrong, either. "When I was seventeen, I took pictures of my girlfriend, and she was pretty fucking hot," Obenberger notes. "And I definitely did it for sexual gratification; I liked having a cute girlfriend. Does that make me a criminal?"

Most child-porn laws are also based on the assumption that a child is being abused, or at the very least exploited, when he or she appears in a pornographic image. As Colorado's law states: "The sexual exploitation of children constitutes a wrongful invasion of the child's right of privacy and results in social, developmental and emotional injury to the child." This is why the mere possession of a single piece of child porn is illegal. But what if no child is hurt?

In fact, what if there is no child? In 1996, Congress passed the Child Pornography Prevention Act, specifically to prohibit the use of computer-generated pornographic images designed to look like real children. Although no one child was being abused, proponents claimed the dirty pictures -- even if fake -- could incite a pedophile to commit a crime against a child.