Does A Shirtless Shiloh Pic Cross A Legal Line?

The gender police is back on Shiloh Jolie-Pitt, most recently because Us Weekly published photos of the four-year-old in boys’ swim trunks. But the fact that she’s not wearing a top raises a whole different set of questions.

There are all sorts of creepy things about this — among them, the fact that tabloids have such issues with the way, by her mother’s account, a little girl chooses to dress, and the fact that some paparazzo appears to have stuck his long range lens into a private moment of evident fun.

And then there’s the issue around — and we want to phrase this carefully — little girls usually wear tops, and Shiloh is a little bit older than the age in which celebrity babies are photographed topless. After the whole affair of Perez Hilton posting upskirt photos of Miley Cyrus — which at least one criminal defense attorney deemed “suicidal,” telling Salon, “We’re not talking about a misdemeanor” — we wondered where the legal lines were. After all, most people have heard about that grandma arrested for child pornography possession after dropping off bathtub photos of her grandchildren. (The charges were later dropped.) And no one expected that grandma’s photos to be splashed around Us Weekly.

So we asked Janis Wolak, a senior researcher at the Crimes against Children Research Center at the University of New Hampshire, with a legal background, to clarify some of the issues. Here’s what we learned:

1) When it comes to classifying child pornography, context matters. The subject does not have to be nude, per the Supreme Court decision U.S. vs. Knox, if the photo is sexualized and being sold as pornographic material. (In that case, there were images of girls in leotards, with the camera zooming in on their genitals.) Conversely, a nude photo of a child doesn’t necessarily constitute child pornography when not being portrayed or used in a sexual context.

2) The images of Miley Cyrus may not have featured her engaged in sexual acts or being abused, but they could constitute “lascivious exhibition of the genitals or pubic area” of a minor, which is the federal definition for child pornography, also adopted by many states, Wolak says.

3) It’s usually not ambiguous. “We’ve done research on cases where people are arrested for child pornography, and we find very few borderline cases,” says Wolak.

Would it be different if Shiloh was post-pubescent? “I think it might because you get into certain standards,” Wolak says. “It’s common for four-year-old girls to walk around without a swim top on, not common for a thirteen-year-old to do so. It’s not clear cut. But I think it would be more likely, certainly.”

Now, whether or not it’s distasteful that tabloid websites are publishing photos of innocent four-year-old girls to question their fashion tastes and scrutinize their gender identity, is purely a matter of personal opinion.