A Tale of Two Americans

October 30, 2010 § 2 Comments

Today’s commentary compares the fates of two professional naturist photographers from the United States: Jock Sturges and Dale Russell. Only one has been convicted of a crime, and this entry asks why.

Jock Sturges has been active in nude photography since the 1970s and has developed long-lasting friendships with naturist families. He is fond of using traditional cameras, and for a long time worked exclusively in black and white, only relatively recently adding color to his portfolio. I’m impressed with much of what I’ve seen from him, and his work can be compared favorably with another naturist photographer, Mona Kuhn.

But questions have dogged Sturges for decades and still remain.

Some of these questions involve why Sturges frequently portrays nude girls under the age of 18. A large portion of his models have been pre-pubescent girls, and the main bulk of the others have been pubescent and post-pubescent girls. Another question is why his female subjects tend to be fair-skinned with slender body types rather than more diverse kinds of females. Finally, some ask why there are so few males in his photographs.

Sturges doesn’t like to talk about his sexual proclivities or the legal controversies from his past. However, because of ongoing prosecutions of other naturist and art photographers, I feel compelled to raise some of those facts at this time.

The first specific Sturges photo I’d like to discuss is one of many featuring Marine, a French adolescent girl, in 1989. The photo is outside of a naturist or family context, showing her reclined sideways on a bed with no clothes on. Although the focus isn’t on her pubic region, and one person I spoke with correctly noted that the photo draws attention to her head, her legs are apart and her pubic hair and genitals are exposed.

I found this photo of Marine at eBay.com in March 2009 when Paul Cava Fine Art of Bala Cynwyd, Pennsylvania had a print of it for sale under the item number 290301472065. The same photo was auctioned by the same art dealer in July 2009 under the item number 290332261347. Both auctions showed a scan of the image.

Since December 21, 2007 this photo has also been listed for sale by Thomas V. Meyer Fine Art of San Francisco, California at Artprice.com.

We know Marine was a minor (no older than 16 and no younger than 14) in 1989 when the photo was made because Sturges said she was 20 at the time of his interview with David Steinberg on May 25, 1994 [note 1].

In the federal case United States v. Dost (1986), the judge for the District Court for the Southern District of California suggested six factors to be considered when pondering whether a photograph of a minor is lascivious and thereby illegal.

One was whether the minor was “in a place or pose generally associated with sexual activity”. A bed is a place where sex frequently occurs. Check one.

Another was “whether the child is depicted in an unnatural pose”. The pose Marine held is not usual for nude photos of minors usually held to be legal in the United States. It’s unnatural in that she holds her left foot down with her left hand and specifically poses in an awkward manner for the camera, angling her body so that her pubic area faces the viewer and is graphically exposed between open legs, certainly not a position a girl would be in if she’s just relaxing. Check two.

The judge also suggested a photo could be lascivious if it “suggests… a willingness to engage in sexual activity”. This is very subjective indeed, but she’s looking into the camera and what is her message to the viewer? Is she bored? Is she waiting for something? Another factor is “whether the visual depiction is intended or designed to elicit a sexual response in the viewer”. Who can say why her legs are open?

Subjectiveness aside, the photo certainly meets two specialized Dost criteria (on a bed, with spread legs) in addition to the presence of nudity.

I found a second photo Sturges made that seems to display a “lascivious” pose in my opinion. It’s a pre-pubescent girl posing full-frontally nude with wide open legs. Regrettably, I don’t know her name or age or the year it was made, or whether it’s been featured in any art galleries or published portfolios, but I can tell you it’s the second photo in the slideshow at the start of Jennifer Montgomery’s 1995 film “Art for Teachers of Children”. (More about Montgomery below.)

In 1990, Sturges had to contend with an FBI case accusing him of having created lascivious photos of pre-pubescent and post-pubescent girls. The FBI told the public that Sturges “vividly displayed” the genitals of some of the pre-pubescent girls [note 2].

The photos of Marine and the slideshow girl in fact do vividly display their genitals in poses that the FBI aggressively pursues most of the time, so I’m not surprised Sturges was charged with child porn. I am, however, surprised that I didn’t find discussions of these two photos in the articles about Sturges, as they are widely disseminated.

Sturges also admits he’s more careful about how he photographs girls these days. Here’s something he said in 1994:

“There are photographs that I don’t take now, that I previously would have taken without any thought at all as to any misinterpretations. The truth is that people who are naturists, who are used to being without clothes, are unselfconscious about how they sit around, how they throw themselves down on the ground, how they sit in a chair, how they stand. They don’t think about it; it’s not an issue. Before, I’d photograph anything. I didn’t think there was anything more or less obscene about any part of the body. Now I realize that there are certain postures and angles that make people see red, which are evidence of original sin or something, and I avoid that. But it’s difficult. At one point, Maia [Sturges’s wife] found me crossing legs, avoiding angles, giving instructions which inadvertently were instructing young people that some aspect of what they were doing, some aspect of who they were, was inherently profane.” [note 1]

Sturges has claimed, “…I don’t believe I’m guilty of any crimes…” [note 1]

Oh really? How about the times you had sexual intercourse with Jennifer Montgomery when she was 14 and you were her 28-year-old counselor in a boarding school dorm? That’s called statutory rape and it was illegal then, as now, in Massachusetts and New Hampshire, and it was in one of those states where you had this affair with Montgomery, an affair she made public knowledge in 1995 and you admitted to in an interview with J.R. Moehringer [note 3]. (The age of consent in Massachusetts and New Hampshire has been 16 for a long time. Montgomery’s film is a thinly-veiled account of her affair with Sturges.)

Dale E. Russell is another American professional photographer of nude young girls and boys. “Photos By Dale” is how he marketed his photography business to the general public.

“Photos by Dale is located in Indianapolis, IN 46206 specializing in abstract, advertising, architecture, art, casual, commercial, digital, documentary, fashion, fine art, glamour, industrial, journalism, other, performance, portrait, print, runway, sport, stock and swimwear. Photos by Dale’s level of experience is Professional / Very Experienced.” [note 4]

Russell’s “Maternal Love” black and white art photo series, made before 2008, showed a nude pregnant woman posing with a nude pre-pubescent girl named “E”. Both were standing in perfectly innocent poses and nothing sexual was implied by the photos. He distributed these photos as “photoartguy” at PBase.com but I don’t know if he ever sold them. I assume they were shot at the request of the woman and that he was compensated by her or her husband.

A sub-component of his business was “Child Web Models”, featuring fully dressed young girls posing on the Internet. He established sites for two of his daughters under the stage names “Kasey” and “October” and some other sites for unrelated girls. Members of the general public were invited to financially support the girls by subscribing to their sites.

Russell and his three daughters participated in the naturist lifestyle by going without clothes in many situations. He photographed the girls and a young boy they befriended in various outdoor and indoor settings [note 5]. The locations included a nude beach, a tower at the nude beach, and a school gymnasium. Two of his daughters performed gymnastics (jumping, hanging, etc.), exercised on the mat, and did climbing and weight training in photographs and videos without clothes when they were 10 and 11 years old. The images lack a sexual context. I think nude gymnastics is perfectly legitimate and we mustn’t forget that the ancient Greeks performed gymnastics and other sports in the nude. One other time he photographed one of his preteen daughters waking up naked in bed, standing up, and getting dressed, again an innocent context in a visual narrative form.

However, in some of the images, Russell – like Sturges – showed the girls’ genitals while their legs were open.

That fact is assuredly why the federal government (Assistant U.S. Attorneys Gayle L. Helart and A. Brant Cook) launched a child porn production case against Russell in 2009. The charges related to four series of photos starring two of his daughters. Russell argued that they are artistic and not pornographic in nature. The government used the two girls’ “Child Web Models” modeling websites against him, too. The trial was heard by a jury that convicted him of the charges, and the judge sentenced him to 38 years in prison [note 6].

Why did this happen to Russell but not Sturges? Russell isn’t accused of sex with any underage person, unlike Sturges, and I think that’s an important distinction to make when we attribute motive to photography. During Russell’s three years in Mexico, he used the image sharing service Imgsrc.ru to upload naturist photos of children scanned from old naturist magazines like “Health and Efficiency” to his account “gymnastdude” (and he wrote his real name in his profile there). He seems to have a lot of interest in naturist photos and naturism as a lifestyle, just like Sturges does. Were Russell’s own photos not deemed to be art because he used digital cameras and placed his works online rather than in printed portfolios? Would it have helped if he had more people testify at his trial or submit friends of the court briefs? Sturges had considerable public support, unlike Russell.

I don’t know if Russell is attempting to appeal his conviction. If anybody has more information, please leave a comment.

In ICE’s press release, Russell was ridiculed by the phrase “the pretense they were modeling”, as if his daughters weren’t really modeling. I think it was as real as any of Sturges’s naturist shoots and as real as any fashion magazine shoot.

I can’t be totally sure that Russell’s intentions were always “pure”, but I do know that Sturges admitted that he’s not “absolutely artistically pure” and that there’s “an erotic aspect” in his photography [note 1] so I hardly think monastic purity should be a requirement.

Why hasn’t Sturges lobbied or advocated for the removal of legal obstacles to nude photography? These obstacles include Title 18 U.S.C. 2252, 2256, and 2257 that restrict what kinds of nude photos of minors can be made, mandate record-keeping requirements for “lascivious” (read: erotic) nudity with adult models, and bar parents from consenting to the manufacture of “lascivious” pictures of their children. These statutes, and those in the individual states, have a chilling effect on the nude photography of young people because few photographers are willing to risk making photos of naked children if there’s a chance a government attorney will interpret their work as sexual in any way. It must also be why nearly all naturist videos of minors these days are made in Europe even while they’re sold in the United States.

I haven’t seen Sturges’s publisher, the Aperture Foundation, or his art galleries make lobbying efforts either. Exactly twenty years ago, in the fall of 1990, Aperture published an interesting magazine issue whose cover read “The Body in Question” and there were intelligent articles about child nudity in it. I’d like to see something much more recent from them.

Nor has Sturges done enough to urge the lowering of the age of consent to 14, if he really believes people like himself should be let off the hook for consensual sex with 14-year-olds.

He’s talked about the issue, though. In his 1994 interview with David Steinberg, he said, “Very naturally, the ages of consent in Europe are vastly lower than they are here, in recognition of the fact that when you have people involved with sexuality you may as well make it legal so you can better deal with them about it, so they’ll talk to you and you can educate them.” [note 1] Fair enough. Where is some action to back up the talk?

Montgomery doesn’t want Sturges convicted of statutory rape, though, and maybe – just maybe – the statute of limitations has expired on this crime. But statutory rape charges can be brought against an individual even if the minor doesn’t want charges, because the law doesn’t recognize the minor’s right to consent.

Who is the “predator”? According to ICE it’s Russell. Perhaps some of you after reading this will think it’s Sturges (or Larry Clark, if you read the first blog entry).

Does Russell’s 38-year prison term even fit the so-called crime? Many rapists, murderers, burglars, scammers, and other terrible people get shorter sentences. Probably the most absurd example I heard of was a New York man who raped a 15-year-old girl and forced two other girls (15 and 16) to sexually interact with him but he got no prison term whatsoever [note 7].

It would be nice if someday there’s a real debate over these matters and a legislator who’s willing to go out on a limb and propose modifications to the laws governing the age of consent and the nude photography of minors. Recent state-level adjustments that help adolescents avoid heavy penalties for nude self-portraits, and Indiana’s recent institution of an age of consent exception for a similar-aged perpetrator, are only stop-gap measures that avoid the larger issues.

1. “Interview with Jock Sturges, May 25, 1994” by David Steinberg, http://www.nearbycafe.com/loveandlust/steinberg/erotic/essays/interview.html
2. “Art and ‘Perversion’: Censoring Images of Nude Children” by Lawrence A. Stanley in Art Journal, Winter 1991.
3. “Child Porn Fight Focuses on 2 Photographers’ Books” by J.R. Moehringer in the Los Angeles Times, March 8, 1998.
4. http://www.onetalentsource.com/portfolio/14519/
5. Some of these photos were discussed in a number of child modeling blogs and forums including Oinkie.com, PlaytoyMagazine.com, and 12Chan.org.
6. “Indiana man sentenced to 38 years in prison for producing child pornography” by U.S. Immigration and Customs Enforcement, May 17, 2010, http://www.ice.gov/pi/nr/1005/100517indianapolis2.htm
7. “A predator walks: Letting child rapist off without prison time is an outrage in every way”, an editorial in the New York Daily News, October 1, 2010, http://www.nydailynews.com/opinions/2010/10/01/2010-10-01_a_predator_walks.html

Update added December 14, 2011:

I have learned that Dale Russell appealed his conviction in court on February 7, 2011, and lost on November 10, 2011 when the United States Court of Appeals for the Seventh Circuit affirmed his child pornography conviction and did not alter the length of his sentence [note 8].

It also turns out that during the first trial, Dale’s older daughter had made a shocking claim that she had been molested by her father a year or two before he shot the nude photos of her. If she is telling the truth, I cannot defend his action, as I am totally against incest. I don’t understand why she didn’t make her claim from the outset. The November 10th decision tells us that “Jane Doe 1 had not disclosed these incidents until three weeks before Russell’s trial was scheduled to begin; until that time, she had denied repeatedly that her father had ever touched her inappropriately.” So she changed her story. On the stand, during cross-examination, Dale denied having touched her sexually at any time, while the daughter reiterated her claim that he had. Dale’s defense team had tried to squelch her testimony, arguing that the acts “were not probative of any material fact, were remote in time and dissimilar in nature to the charged offenses and their prejudicial impact far outweighed any arguable probative value.” The government, however, argued that “[p]rior sexual contacts with [Jane Doe 1] show his sexual attraction to her, and also show a sexual purpose, therefore, in taking the photographs.”

The Seventh Circuit’s decision, determined by three judges and authored by U.S. District Judge Joan B. Gottschall, provides much detail. It explains that the “lascivious” photos at issue included some of the bedroom photos as well as some of the gymnastics photos, plus two bathroom photos, and that indeed her legs were apart in them.

While Dale argued the photos reflected the nudist lifestyle, the circuit ruled that Dale’s photos had lascivious intent and were made to appeal to the sexual interests of other viewers. Part of the decision reads, “None of the charged photographs were taken at any of the clothing-optional resorts that Russell and his second wife visited with their children, nor did the defense claim that any of those photographs were the sort of candid snapshots of a family member that one might expect to find among the photos of a family that engages in nudism. All of the charged photographs were staged photographs that the defendant directed to some degree, and both girls testified that they would not have been nude but for purposes of the photography sessions Russell initiated.”

The circuit also rejected Dale’s attempt to compare his photos to the works of others. Dale owned some books showing nude children and wanted the court to study them. But the circuit cited the 1982 U.S. Supreme Court case New York v. Ferber to remind us that “Images of children need not be obscene in order to qualify as lascivious” and that therefore Dale’s claim that the photos carry “a legitimate artistic purpose and value” does not overrule considerations of lasciviousness. The circuit added, “Moreover, as the district court pointed out, simply because other works featuring nude photographs of children have been published does not necessarily mean that those photographs are not lascivious. R. 177 at 132–33.” In other words, those Jock Sturges photos I mentioned which have not been the subject of previous court cases could in fact be deemed lascivious by a court of law even though they have been printed and are in commercial circulation. Now that Dale’s molestation of one of his daughters was tied into the nude photography sessions he made of her, even though the molestation and the photography did not occur at the same time, the same tie-in could be done with Jock Sturges in relation to Jock’s confessed sexual liaison with a 14-year-old girl.

8. United States v. Russell, No. 10-2259, United States Court of Appeals, Seventh Circuit, http://caselaw.findlaw.com/us-7th-circuit/1584950.html

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§ 2 Responses to A Tale of Two Americans

  • Ron says:

    Here’s a can of worms:
    It’s funny how people make a fuss about even incidental nudes such as those in naturist venues. Unless the photographer is trying to bring out the artistry in the work, most naturist photography is mundane (and documentary) and occasional pieces of accidental art result. I have seen one artist take the extreme measure of having the girl’s hair drape strategically over her nipples (on her undeveloped chest) and I assure you the laws of physics make this impossible as a natural pose. It reminds me of the efforts made in ‘The Blue Lagoon’ to conceal Brooke Shields.
    There are a number of important points to bring up regarding Russell’s appeal. If his daughter’s statements were true, of course he deserves what he gets, not because of incest, but because he molested a child! When a British soldier who accompanied Marc Antony? to Egypt to visit Cleopatra learned of her incestuous marriage, Antony had to apologize, “Forgive him, he believes the customs of his tribe are the customs of everyone.” Incest like many terms is somewhat vaguely defined and applied. Incest (as most people understand it) is actually quite rare among people who are raised together and fathers who molest their children are overwhelmingly not the biological father. On the other hand,it the prosecuting authorities found it necessary to secure Russell’s conviction, there is ample precedent of interrogators badgering (some might say torturing) young witnesses into saying things in court. This was demonstrated very well in a documentary called ‘Witch Hunt’ where a “gang” of child molesters in Bakersfield, California were prosecuted and imprisoned. Even after the revelation of the facts, the District Attorney continued to win election to office (I don’t remember if the prisoners were compensated at all, certainly the ten years could not be replaced). Obviously, I am not privy to the details in the Russell case, but the circumstances are suspicious until one examines the motivations of the parties involved.
    What drives me the most insane is that neither the prosecutors nor the defenders engaged in intelligent argument; they were all required to engage within the rule of law (many of Russell’s arguments were just as lame). Anyone wanting to understand the reality of things needs to acknowledge that Western courts are Courts of Law, not Courts of Justice and that is an important distinction to make when making personal judgments in public cases.

  • Fred says:

    I have read all it about that case, my question is: Is the father of Kasey’s and October’s free?

    I think he didn’t a bad stuff with his daughters taking the pictures, I just saw an artistic and naturist nudism nothing absolutely related to porn.


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