I 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.