Texas Officials Arrest Parents and Take Away Their Children for Taking Pictures in a Bathtub and Breastfeeding

breastfeedingjailI just came across this story from a few years ago that parallels some of our recent posts. Jacqueline Mercado, a 33-year-old Peruvian immigrant, and her boyfriend Johnny Fernandez simply wanted to keep memories of the childhood of her children when Jacqueline went to Eckerd Drugs to develop photos that she took of her children in a bath. The good people at Exkerd Drugs in Richardson, Texas saw not frolicking kids but child porn and called the cops. Later, after searching their home, police and child welfare officials found a picture of Jacqueline breast feeding one the children. That was it: Texas prosecutors secured a grand jury indictment against the parents for “sexual performance of a child,” a second-degree felony punishable by up to 20 years in prison. The charge was based on the breastfeeding picture, even though defense attorneys produced paintings in leading museums that show the same maternal act.


Richardson police were satisfied that the bathtub pictures themselves were pornographic — a ridiculous position that we have seen in other cases.

Donna Dull, 59, of Pennsylvania was criminally charged for developing pictures of her 2-year-old getting out of the bath has been the subject of national criticism and a lawsuit against the prosecutors. However, officials added to the controversy by appearing to defend the decision to charge the grandmother despite the fact that the charges were later dropped.

Of course, here we have the unspeakable act of photographing breast feeding despite the fact that such an act can be performed in public. Indeed, we have seen women prevail (here, in controversial cases where they were told that they could not breastfeed in public. Indeed, this year Washington legislators actually introduced a bill to protect the right to publicly breastfeed, here and here. Similar laws are already on the books in various states such as California and Massachusetts. Obviously, there are some limits like not breastfeeding while driving, but this is not viewed as exhibitionism.

Yet, police and prosecutors in Texas believe that a picture taken of a mother breastfeeding is an act of pornography. The Dallas County District Attorney’s Office presented the photos to a grand jury in January and secured the charges with a potential 20-year sentence. After tossing their home and finding the breast-feeding picture, the state also took away their children and recommended that they be given to foster parents.

What is similar to the Pennsylvania case is that, while former District Attorney Bill Hill eventually dropped the case under public pressure, he did not seek disciplinary actions against the police officers or prosecutors in trying to put away the parents for 20 years. Instead, he insisted that this “has some gray areas to it, but it doesn’t rise to the level of a crime.”

I have been participating in an outgoing panel of experts on the “cultural defense” that speaks with judges and lawyers about how to deal with cases involving cultural issues. Many cases involve practices involving the touching of children in a way that is entirely appropriate in other countries but viewed as abuse in this country. These cultural experts often criticize prosecutors for applying standards that are seen as overly puritanical or rigid in other countries. When I first read about this case, I thought that it might be such a cultural defense case. However, I doubt the many prosecutors would have pursued this case.

What is striking is that prosecutors would have tried these parents for a serious felony (and threatened a 20-year-sentence) if the media and public had not forced the charges to be dropped. Yet, no one was disciplined and the parents are still fighting to get back their children. Most recently, the prosecutors said that they wanted these two immigrants to pay and pass polygraph examinations as part of their effort to get their children back.

For the full story, click here.

24 thoughts on “Texas Officials Arrest Parents and Take Away Their Children for Taking Pictures in a Bathtub and Breastfeeding

  1. The biggest problem here is that it took place in Richardson. Not a lot of common sense going on in Richardson. I think even AY will agree with me on that one.

  2. The son of Richard had a town named after him I see. The popular nickname for Richard is dick. That is what the prosecutor is in this case. An intellectually challenged dick head.

  3. I guess I have tried to post here and so far nothing has appeared. WordPress Oblivion and Beyond!!!!

  4. Where did it go?

    Reconstruction is not dead. The Yankee Imperialist has again stricken the Poor Old South and imposed it views on what a parent should not do.

    What about a states right? Article X, and this don’t stand for Malcolm X.

    I read this story and remembered La Leche. I first heard about this from the mother of my son. Geeze this was over 25 years ago.

    What I did find was interesting. It was formed in IL in 1956. Maybe I am wrong but I don’t believe that they have always had formula on demand at your local grocery store. Who knows, I have been wrong before and could be wrong today. But right now, I don’t think so.

    Link: Google it up.

    Request: If anyone is going to post a story about anything that is related to a thread or not, can they also hook up the link in the post?

  5. Justice Potter Stewart once famously wrote of the difficulty of defining obscenity and concluded “I know it when I see it.” The police and prosecutors of Richardson, Texas are unable to either define or recognize it. What is truly obscene here is the gross ignorance of the concept of maternal love and the lack of understanding of the emotional bonds between parent and child. All involved should have been terminated from their positions. Mr. Hill is a pretty pathetic excuse for a District Attorney. I trust the parents will retain the services of one of those dreaded “trial lawyers” and introduce the City of Richardson to the financial cost of absurdity.

  6. Sadly, the only joke here is the Richardson PD and the Dallas County District Attorney’s Office.

    It’s a very bad joke too.

  7. http://dallasda.com/

    The Dallas DA has been Craig Watkins Since January 2007. He beat Bill hill who was hand picked by Henry Wade to replace him.

    Another link: http://www.cfcamerica.org/index.php?option=com_content&view=article&id=358:woman-charged-with-possession-of-child-pornography-for-taking-photos-of-herself-breastfeeding&catid=3:news&Itemid=96

    I have been looking for more information. Something is wrong with Bill Hill still be named as the Dallas DA.

  8. _________________________________

    From Prof T.

    “What is striking is that prosecutors would have tried these parents for a serious felony (and threatened a 20-year-sentence) if the media and public had not forced the charges to be dropped.”
    _________________________________

    In general, I think that people should not use public opinion to change the course of legitimate legal proceeding; however, there are cases such as this that are so outrageous and absurd that the public is negligent if they do not speak out and make changes.

  9. How come no one at the drug store had the common sense to NOT call the cops? The cops keep telling us they can’t do their “jobs” without our help. So maybe it is time we stop helping them. All I can say is thank God for digital photography and printers so you can make your own pictures at home.

  10. Obviously, these cops, prosecutor, etc. are all just still pissed that their parents showed their girlfriends naked baby pictures…

  11. All this after the Texas Youth Commission was found to have raped children. Rape rooms.

    Institutionalism FTW! Yeah I don’t think so.

  12. We all enter the Animal farm with the signing of our birth certificate.
    The birth certificate creates our “person” the legal fiction, you have a person. I have a person, Obama has a president. A legal fiction.
    =You are subject to the laws of that person.= This is the Animal farm, This is the Matrix, This is your jurisdiction. To register your birth certificate is to give over ownership. Wake up people, wake up.

  13. What the hell? No were in the world is breastfeeding sexual. It is the simple act of FEEDING an infant. And the photo of kids in the tub. Please tell me one person who doesn’t have a picture of there little kids in the tub splashing around in the bubbles. It’s in no way shape or form porn!!!! It’s a fun memory of your little kiddo’s being little. Is it any different then taking pictures of your baby naked and have a pic. on the wall? NO! This is so terrible. This is why our country is so messed up! And now these poor loving parents are with out there kids, and for what? Because people choose to point figures and place blame at nothing! Lets focus on the real people that hurt innocent kids! People that beat and sexually abuse kids, not parents that want to remember a time when there kids where little and adorable!!!! Please this kind of “law making” must STOP! Parents should not be in fear of loosing there kids for no reason at all!!!!! :( Very sad!

  14. The Richardson Police are racist, I bet you the officer was White and had a grudge against Hispanics. The parents need to SUE SUE SUE and Don’t Stop SUING or they are responsible for electing George W Bush!

    That’s a not a frivious lawsuit that is justice, and I don’t mind paying more for whatever due to their negligence and misconduct.

  15. This is ridiculous! It’s only a memory. They’re fighting for their kids because someone didn’t approve of the memory they were trying to keep? What’s wrong with this world? What I don’t understand is how anyone can go into a Sears or Walmart, get cute little butt shots of their infants taken, and the FBI doesn’t come parading into the portrait studio. But you go to your local CVS or whatever, and you’re in the process of being put away for 20 years. Wake up, people! It’s 2010. And as far as breastfeeding goes, it’s in no way sexual. Women have been doing it for centuries. I did it with my son and I’m expecting to do the same with my daughter, when she’s born in September. It’s a beautiful thing and this is just another way of degrading women, making us look dirty, and taking our rights away. It’s sick. They’re the perverts! They’re the dirty ones! Why do we have breasts in the first place? It’s a maternal thing. Stop being selfish, men. God didn’t give us titties for you to enjoy.

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