"Kongs was charged in an amended information with eight counts of annoying or molesting a child (Pen. Code, § 647.6), three counts of using a minor to pose for visual depictions of sexual conduct (Pen. Code, § 311.4, subd. (c)), and one count of possessing child pornography (Pen. Code, § 311.11, subd. (a))."
Kongs argues the First Amendment:
"Kongs grounds his argument on the First Amendment right to freedom of expression. He asserts that the state's prosecution violates his constitutional right because it attempts to regulate his thoughts rather than child pornography."
- this argument is rejected.
"Annoy and molest" are synonymous and mean to disturb or irritate, especially by continued or repeated acts; to vex, to trouble; to irk; or to offend.
"Our reading of Penal Code section 647.6 does not offend the First Amendment's guarantee of free expression. The Supreme Court has recognized that a state may legitimately sanction activities which amount to harmful conduct rather than "pure speech," particularly when the conduct in question involves the use of children to make sexual material for pedophiles. Here, Kongs's conduct went much further than a neutral viewing of little girls in underwear for his private sexual pleasure. Rather, his viewing was combined with affirmative conduct which could ordinarily cause annoyance or offense to the subject of his attentions.
"Kongs's subterfuge of pretending to be a legitimate photographer while clandestinely trying to peek at the models' genital areas differentiates this case from that of the diaper commercial maker, and is the factor that makes Kongs's voyeuristic conduct annoying or offensive to the average person under Penal Code section 647.6. If any analogy is to be made here, it would more appropriately be made to a "peeping Tom" rather than to a diaper commercial maker. The deciding factor for purposes of a Penal Code 647.6 charge is that the defendant has engaged in offensive or annoying sexually motivated conduct which invades a child's privacy and security, conduct which the government has a substantial interest in preventing and which is unrelated to the suppression of free expression.
"Using a Minor to Pose for Sex Acts - Penal Code section 311.4, subdivision (c), authorizes felony charges against someone who "knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 17 ... to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing a film, photograph, negative, slide, or live performance involving sexual conduct by a minor under the age of 17 years alone or with other persons or animals .... It shall not be necessary to prove commercial purposes in order to establish a violation of this subdivision."
"To determine whether Kongs used or induced a minor to pose for purposes of preparing a film or photograph involving sexual conduct, the circumstances of this case require us to ask whether there was sufficient evidence of "exhibition of the genitals, pubic, or rectal area for the purpose of sexual stimulation of the viewer" to sustain the magistrate's decision to hold Kongs to answer on these charges. (Pen. Code, § 311.4, subd. (d).) Kongs maintains that the exhibition which occurred here was innocuous and "innocent." He reasons that because the genitals of Amanda C. and the other models were covered by panties or a swimsuit at the time the photographs were taken, no sexual conduct can be found, regardless of his intent.
"We disagree with Kongs's assertion that sexual conduct has to be nude to be lewd. Nude is not synonymous with lewd. No one would seriously argue that Michelangelo's statue of David is lewd, even sans an artificial fig leaf. By the same token, a photograph of tots posing suggestively while dressed in corsets, garters, and hosiery could well be considered lewd because such attire is so inappropriate to their age and is obviously designed to elicit a sexual response in a viewer.
"Here, child models were posing for the purpose of developing photo portfolios. The expectation on the part of the models is that photographs would be taken of their faces or their entire person. Instead, Kongs diminished his subjects by focusing his camera on their private parts, turning the models into sexual objects rather than treating them as whole people. "The pornographic photographer subordinates the humanity of his subject to the sexuality of the subject" and makes his subject "a mere means [of] serving the voyeur's purposes."
"The Ferber case instructs us that states may legitimately protect the dignity and psychological well-being of children by forbidding child pornography. That purpose is served by construing Penal Code section 311.4 to encompass not only a nude exhibition of the pubic or rectal area, but, in appropriate cases, exhibitions focusing unnaturally upon a child's underwear or bikini-clad pubic or rectal area. Notably, the Legislature did not require a "nude" exhibition in Penal Code section 311.4, subdivision (d). Presumably, the Legislature was aware that for some pedophiles, furtive glimpses of a child's underwear-covered genitals are sexually stimulating.
"Nevertheless, the Legislature could reasonably conclude that such photography is unacceptable if the photographer obtains his pictures by exploiting his subject and reducing the child to a sexual object in order to satisfy the cravings of an audience of pedophiles. A child should not have to face a lifetime of knowing that a permanent record has been made of his or her abasement."
Now, some of you may argue that the facts in Kongs is different-that he was at a photography shoot that the parents knew about. Well, in my opinion, that only strengthens my argument. In Kongs, the parents knew their child was being photographed. In my hypothetical, the parents don't know.
(one more post...)
