Mom Faces Abuse Charge For Texting Nude Photo Of Child Sleeping

January 3, 2014
By Clifford Petroske

Brooklyn Family Court recently played host to a mother’s nightmare when questionable family photos became the subject of a child abuse case brought against her and her husband.  Luckily for this “loving and attentive mother” in Matter of CW v. CYR the Court ultimately dismissed the petition and found only that Mrs. R “uses technology to obsessively record her children’s lives and did not realize that not everything needs to be memorialized.”  It could have been far worse.  Had the Court found, among the thousands of family photos that had been stored in the husband’s blackberry (lost, then found by a passerby who turned it in to the police), that the few nude photos of the youngest child were obscene, the couple could have lost custody of their four children and faced criminal charges, to boot.

What was she thinking(?) is easy to say in hindsight, of course.  As many people today are prone, Mom used her camera phone to record her everyday life, and to convey information in text messaging.  So, when her 4 year old daughter confounded her one night by ending up without clothes after having been put to bed in a nightgown and underwear, Mom took a photo of her while sleeping and posted it with a text to her sister and husband, asking them if they thought this was normal.  Other photos of this child with other children in and out of the bath were no doubt meant to record innocent moments.

Predictably, “innocent” was not how the Administration for Children’s Services saw things.  A police search was conducted of their home, their home computer was seized, and the children were removed from their custody pending a hearing.

Children are deemed neglected if placed in imminent risk of harm to their physical or emotional well being.   Child abuse is worse, and is not limited to situations in which actual physical harm is inflicted. Under New York law, parents who commit a crime aimed at their children are deemed to have abused the child, even where physical harm did not occur.

The parents in Matter of CW were charged with abusing their children based on alleged violations of Penal Law section 263 which prohibit obscene sexual performance by a child.  For the depiction of the child to be an obscene sexual performance, it must, at a minimum, involve a “lewd exhibition of the genitals.”  Given what the photos displayed, the only question for the court was whether the photos were “lewd.”

Thankfully, no.  A careful review of the caselaw led the Court to conclude that, because the children had not been posed, and there was evidently no intent to elicit a sexual response in the viewer, the photos were not lewd.  It helped that a physical examination of the children showed no signs of trauma, and that the children were well-adjusted, happy kids.  Their pediatrician even remarked that the family was “one of the most normal, high functioning families in his practice.”

Which begs the question, again — what was she thinking?  In Court, Mom testified that the photos “were in bad taste.”  Bad judgment, more like.  But the Court remained charitable in its assessment, concluding that “any parent knows that you cannot raise a child without making mistakes in judgment from time to time.  And unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family life.”

If nothing else, this case points out the dangers of sharing too much.  There is no getting around the fact that children will do the damnedest things, but not everything needs to be compulsively recorded and shared.