Woman charged with possession of child pornography for Taking photos of herself breastfeeding!
When does a snapshot of a mother breast-feeding her child become kiddie porn? Ask the Richardson police.
The service was fast, the judgments even hastier. Never did Jacqueline Mercado imagine that four rolls of film dropped off at an Eckerd Drugs one-hour photo lab near her home would turn her life inside out, threaten to send her to jail and prompt the state to take away her kids.
Jacqueline Mercado, a 33-year-old Peruvian immigrant, took a few photos of her young children at bath time. A week later, Richardson police were rummaging through her house for kiddie porn, and a state child welfare worker came to take her kids away.
The photo in question: Jacqueline Mercado and Johnny Fernandez say they took this image last October to memorialize the breast-feeding stage of their son's life. Below: The Lucca Madonna, painted in the 15th century by the Dutch master Jan van Eyck. Defense lawyers argued that while breast-feeding images are a second-degree felony in Richardson, they are also on public display in the finest art museums in the world.
For Mercado and her family, last fall was a happy time, one they wanted to record and save in the venerable tradition of the family photo. Johnny Fernandez, Mercado's boyfriend, had just emigrated from Lima, Peru, ending a yearlong separation, and on top of that, it was their son's first birthday.
The photographs they took over several days in late October included pictures of Fernandez reunited with the family at their modest home in suburban Richardson. Others captured their 1-year-old son Rodrigo, and 4-year-old Pablizio, from Mercado's earlier marriage, playing in a neighborhood park. Using the camera's timer, they also took three snapshots of themselves, naked in their bed. They arranged their bodies in ways that showed less flesh than most freeway billboards.
A half-dozen others recorded the kids at bath time. Fernandez took several photos of the boys "playing around," naked and innocent, with the oldest flashing a big smile. Mercado, who says she often bathed with the kids, is in several of the shots unclothed from the waist up, holding her arm modestly across her bare chest.
In one--the photo that would threaten to send Mercado and her boyfriend to prison--the infant Rodrigo is suckling her left breast.
After Mercado dropped off the film for processing, a technician viewed the images and decided they were "suspicious," according to a police report. As required under Texas law, he immediately contacted local police. Mercado says that when she went to pick up her pictures, the clerk told her there would be a delay, and then only returned three of the four sets of prints.
To Richardson police, who arrived at the store that afternoon and apparently made up their minds from the content of the pictures alone, this was nothing short of a felony case of child pornography. "We thought they contained sexuality," says Sergeant Danny Martin, a Richardson police spokesman, explaining why two Richardson police detectives began pursuing a criminal case. "If you saw the photos, you'd know what I mean."
With nothing else to support their contention that the photos were related to sex or sexual gratification, the police and the Dallas County District Attorney's Office presented the photos to a grand jury in January and came away with indictments against Mercado and Fernandez for "sexual performance of a child," a second-degree felony punishable by up to 20 years in prison. The charges centered on a single photo, the breast-feeding shot. Fernandez and Mercado say they took it--although the child had ceased breast-feeding--to memorialize that stage of their baby's development.
On November 13, the day Richardson police "tossed" or searched Mercado's house, a caseworker with the Dallas County Child Protective Services Unit of the Texas Department of Protective and Regulatory Services took custody of the children and recommended to a family judge that they be placed in a foster home. The caseworker's notes state that a supervisor, acting on the content of the photos alone, decided that "the children needed to be removed from their mother's care."
The pastor says he was prepared to testify on the couple's behalf and explain what appears to him to have been a cultural misunderstanding. Jaeger, who grew up in Peru, says breast-feeding is culturally important in his native country and considered acceptable to do in public, particularly in the country's jungle regions. "My cousin sent me a picture of her newborn, and it was of the baby being breast-fed," he says. "As someone who has lived here for 20 years, I asked myself, 'Why did she send me that picture?' To her, it was nothing."
To memorialize the act of breast-feeding in a snapshot is as common in Peru as wanting to save a photo of a first step, or a first two-wheeler, or a first baseball game, he says.
Their most pressing problem was the breast-feeding picture, which the indictment characterized as sexual, "to wit; actual lewd exhibition of...a portion of the female breast below the top of the areola, and the said defendant did and then employ, authorize and induce Rodrigo Fernandez, a child younger than 18 years of age, to engage in said sexual conduct and sexual performance." In other words, says Chatham, the act of simulated breast-feeding, captured on film, was being portrayed as a sex act. "They're saying the guy who took the picture is a sicko and wanted a photo of this to satisfy his sexual desire."
Lieutenant Bill Walsh, head of the Dallas Police Department's youth and family crimes section, says calls from photo labs and computer repair shops are a useful tool in policing child sexual abuse and child pornography. His department makes several important cases a year after being alerted by technicians who stumble across the evidence.
"The law in Texas says all adults must report suspicion of child abuse, but it doesn't set out what the boundaries for that are," he says. Once detectives review the pictures, Walsh says, it is usually a "no-brainer" which ones are the work of abusers and child pornographers and which are innocent pictures of bathing children and "the cute one of the kid whose bathing suit fell off when he ran through the sprinkler." Naked baby pictures and photos of toddlers' backsides are on display in work cubicles and office credenzas all over town.
"We don't see many sticky cases," Walsh says. "Child porn usually isn't subtle."
A photo of a mother breast-feeding, or a couple of smiling kids getting ready for a bath, or, separately, two nude consenting adults, "aren't something we're going to be too concerned with," he says. "The most important thing is to look at the pictures in context. Under what circumstances were they taken."
To make a case against Mercado and Fernandez as parents, Richardson police and CPS investigators made no mention in their reports of any other photos on the four rolls, such as the ones of five kids at a birthday party. They focused only on the naked ones.
"It's like they took something from each one and twisted it to try to make a case," says Lafuente, who is handling the custody side of the couple's legal problems.
In his report to CPS, Richardson Detective John Wakefield wrote, "I viewed the photographs and had concern of possible sexual abuse, inappropriate sexual behavior and possible child pornography from nine [of them]."
The four photos in which Mercado is seen with her forearm closely covering her chest, for instance, Wakefield described thusly: "Mercado is in the photograph topless and touching her breast." In two others he notes that the older boy was "touching his genital area." Mercado told Wakefield, and anyone else who cared, that the boy had a rash and was constantly scratching himself there. She produced a tube of prescription medication to prove he was being treated for the problem, police reports show.
Her explanations and defenses came long before she was forced to hire lawyers, and they have not changed since the day the Richardson officers knocked on her door.
Lafuente says he has been willing to concede that the photos show behavior that some people of a conservative nature might consider inappropriate, such as a mother bathing with her 4-year-old, or being topless around the kids. Yet those hardly rise to the level of sexual abuse. The family lives together in one room, making privacy difficult, but that does not mean Mercado and Fernandez are not loving parents, he says.
The LAW says Breastfeeding IS child abuse and pornographic...
As a mom or parent, how do you feel about this article? I think this is absolutely ridiculous! It kind of explains why some women are afraid to breastfeed... I just don't understand how one can associate feeding a child with porn. It's not being done in a sexual way, it's a natural way of feeding.
Posted by A. Drewes
0 Comments