Because materials published legally in some European countries cannot be produced in the United States under current child pornography laws, the temptation is great to export these printed materials into the lucrative American marketplace.
The situation arises from the differences in how "child" and "pornography" are defined in the U.S. compared to Scandinavia, the Netherlands and other countries. Material considered child pornography in the United States is not necessarily defined as child pornography by European law.
What Is a Child?
The U.S. laws regarding child pornography define children as minors, anyone under the age of 18. In Europe, the laws regarding child pornography vary from country to country, but generally the definition of "child" for defining child pornography is linked to the age of consent for sexual activity.In Scandinavia, the age of consent is 13 and in the Netherlands it is age 16. Therefore photographs of a nude 13-year-old taken in Scandinavia would not necessarily be illegal.
There are also differences in the interpretation of what is legally considered pornography. In the United States, the Supreme Court ruled in the New York v Ferber case that there is no freedom of speech protection for any depictions of naked children.
The first U.S. child pornography laws written in the United States in 1997 included any pictures of nudity "if such is to be depicted for the purpose of sexual stimulation or gratification of any individual who may see such depiction" basically allowing prosecution for any nude photographs of children.
But They Are Not 'Children'
In the Netherlands, for example, child pornography is defined as photographs of a child in a "sexual demeanor." The criterion for defining the sexual demeanor of a photograph is the arousal value of the images. Simple photographs of nude children would not necessarily be termed pornography in the Netherlands.This definition of child pornography in the Netherlands applies only if the person or persons depicted in the photographs are children and in the Netherlands that means under the age of 16 (age 13 in Scandinavia). Therefore, photographs of a 13-year-old Scandinavia female engaged in sexual activity is not considered child pornography, because by definition she is not a child.
In the U.S. those same photographs would certainly meet the criteria of child pornography, so U.S. Customs has its hands full keeping materials that are perfectly legal and readily available in other countries, out of the United States.
