PHOENIX, Ariz.—Here's a word of advice for parents who think it'd be cute to take photos of their kids naked on a bearskin rug or in the bath: Don't.
Don't, that is, if you live in Peoria, Ariz., a Phoenix suburb, and intend to get those pics developed and/or printed at the local Wal-Mart.
Meet the Demarees: Mommy Lisa, daddy A.J., and their three kids, aged 5, 4 and 1 1/2, who went on vacation last year to San Diego—and as parents are wont to do on such a trip, they took a lot of pictures of their kids ... including some showing the kids in the bathtub or standing next to it, or lying on a rug (not bearskin, apparently, but still...).
Once back in Peoria, however, they took the camera's memory stick to the local Wal-Mart to get the digital images turned into photographs—and that's when the trouble began.
"The people who work in the Wal-Mart doing the processing are usually very inexperienced, very uneducated people who have little or no background in life generally and certainly no expertise in deciding what photographs are sexually exploitative of children," explained Richard Treon, attorney for the Demarees. "It puts the clerk in the position of becoming the moral censor for the police and for society, and that's not what Wal-Mart clerks should be hired to do or empowered to do. So these people are not competent to do whatever they do; they're not trained, have absolutely no expertise in understanding what the law really requires, and the whole system is simply an abomination. This is every parent's nightmare, what happened to this couple, and the grandparents and the whole family and the whole community."
In case you hadn't guessed, the friendly Wal-Mart clerk who processed the Demarees' memory stick took one look at the naked or semi-naked kids and called the local police, who deemed the parents to be child pornographers and promptly turned their kids over to Child Protective Services (CPS). The kids remained in foster care, according to an article in Phoenix New Times, while the authorities investigated to see whether there was any evidence that the Demarees had sexually abused the kids.
Big surprise: There wasn't.
"In fact, the parents were shocked when the police came to the door and the CPS came to the door; they were wondering why they were doing this," Treon said. "And the ultimate irony of this whole thing is, the mother of the children is a trained interventionist as a school teacher to assist families and children where the children are being abused."
"In the end, they declined prosecution," he continued. "They didn't say anything about the situation; they just declined prosecution. But the case did go to a dependency hearing before a juvenile court judge, who found that the photographs were not in any way sexually exploitative of the children, which is the standard the state would have to meet in order to be able to take the kids away from the parents. Sexual exploitation under our law means that the photos were taken for the specific purpose of stimulating the sexual interest of the viewer, so they would have had to show that these were posed and these were by people who were intending to use their children for sexually perverse purposes, and the judge found that these were fine young people who had no intent whatsoever like that; these were bath time photos and therefore dismissed the dependency petition."
But as often happens in cases of this sort, merely being cleared by the authorities wasn't enough.
"It caused her [Mrs. Demaree] to lose her job for approximately nine months," Treon explained. "She couldn't work last year; they wouldn't let her in to work at her job because she was being charged with sexual abuse of her children, at least according to the police officer and according to the attorney general."
In all, between fighting the possibility of prosecution and defending themselves in juvenile court, Treon estimates that the Demarees have spent upwards of $100,000 ... and all because some Wal-Mart worker wasn't smart enough to see that the Demarees' photos weren't at all sexual.
"Of course, we're suing," Treon told AVN. "Our first position in that regard is that Wal-Mart shouldn't even be accepting people's memory sticks without telling them ahead of time, 'By the way, we have a policy that if we see any nudity of children in these photos, we reserve the right to turn them over to the police if in our sole judgment they are pornographic' or whatever standard they apply; they should tell the customer ahead of time that there's this consequence to bringing your photos for processing to us...
"Our position is that Wal-Mart failed in all those different respects with what they did in terms of hiring incompetent, untrained, unauthorized workers who A) look at the pictures without telling customers they're going to look at them, and then B) deciding that they meet some kind of unarticulated standard—they don't even put out there what the standard is—and this becomes a subjective reaction for the person who's looking at the photos, and that in turn depends upon their own moral makeup or lack thereof. For some people, any picture of any child showing any genitalia, any part of any genitalia, however innocent the photo might be to parents or grandparents or the person who took it, is bad because it's immoral because of their perverse attitudes towards sex," Treon added.
In fact, the Demarees have filed two suits; one against Wal-Mart, and another against the State of Arizona, its Attorney General, and the City of Peoria. According to the complaint against the state and its officials, former Arizona Assistant Attorney General Jennifer Hunter "published defamatory remarks to more than 35 family members and friends of plaintiffs, falsely stating that plaintiffs Lisa and A.J. Demaree 'sexually abused' their children," and Peoria P.D. Detective Krause "made false and defamatory statements to agents and employees of the defendants, medical providers, and others, including, but not limited to, accusations that plaintiffs had sexually abused their children, sexually exploited their children, took pornographic photos of their children, and/or that said parents were engaged in illegal actions by taking bath and play time photos of their children."
Indeed, the plaintiffs contend that Wal-Mart need never have started the defamatory process in the first place.
"Our particular statute has applicability basically to electronic services providers, people who are involved in computer work or — it has a very broad-based definition of what it is they're trying to regulate," Treon said. "But even if the law applies to a processor like Wal-Mart, the law does not require them to report. It says they may report, but if they do report, they have immunity. There's no requirement in there that it [the report] be good faith per se. Now, in a criminal case where they're going to allege criminal charges, they do have to have good faith about what they're doing, and in our case, since the local police jurisdiction was seeking to bring criminal charges against our clients, we contend they had to show there was good faith, but more than that, it's our position that if they are going to put themselves in a situation where they are going to be reviewing a customer's images, that they have an obligation to tell the customer, and to fail to tell the customer is consumer fraud."
Check back with AVN.com to track the progress of this very interesting legal battle.
