Canadian photographer Joanne Tremblay flew into O’Hare International Airport in mid-May, expecting to stay an hour before catching a flight to Hong Kong. Instead, she missed her Japan Air flight while U.S. Customs Service agents boarded her plane, frisked her and interrogated her for six hours about the contents of her briefcase.
The several hundred photos that agents found, including 225 negatives and additional contact sheets, depicted her 3-year-old adopted Chinese daughter in the nude. Some of those shots showed the girl’s buttocks and genitals. None of them, the French-speaking Tremblay tried to tell officials in halting English, were meant for display or distribution. Tremblay, who has received several Canadian arts grants, said they were part of an unfinished art project she planned to research in Asia.
But by the time Tremblay, 38, was released, her photos were in the hands of customs officials. She was sent back to Quebec, under investigation by the U.S. attorney’s office for possible charges that included possession of child pornography. Formal charges have not been issued.
Legal experts say pornography cases involving artists and children are not uncommon; in almost all instances, the artists are either not prosecuted or acquitted. Yet Tremblay’s situation is unique because it involves a foreign photographer detained while traveling through the United States.
“It’s an extraordinary case. I’ve never heard of such a thing,” said Jeh Johnson, a New York attorney representing Tremblay. “The art communities in Canada and the U.S. ought to be up in arms about this.”
They are–and so are anti-porn forces.
“In a child pornography case, serious artistic value is not a defense,” said Robert Peters, president of Morality in Media, a national interfaith organization in Riverside, N.Y., that tracks illegal pornography. “You can still exploit a child sexually. It’s a fine line.”
Federal laws target photographs that show a child’s genitals in a lascivious manner, or pose a child in such a way as to cause sexual arousal in the viewer. In most legal cases, the motivation of the photographer becomes a deciding factor: Is it a scrapbook snapshot of a naked son or daughter, or product to meet an underground demand for kiddie porn?
Value judgments on a given photo can be highly subjective, said Kristi Hamerick, a spokeswoman for the Washington, D.C.-based Family Research Council. “There are judgment calls that need to be made, but the material has a series of gates it must pass through” before it is called pornography, Hamerick said. “Does the person intend to make a profit from this picture? Does the person intend to use this photo for sexual stimulation?”
Re-engaging the debate
Cases involving artists and amateur photographers have become more widespread since the collapse of the commercial child porn industry during the 1980s. In 1990, federal laws were amended to bar all forms of child porn distribution, including computer-generated images. And laws now on the books in at least a dozen states, including Illinois, require photo labs to alert authorities when potential child pornography is spotted.
Aside from raising questions about what is legal, or what is decent, the Tremblay incident once again engages the age-old debate over “What is art?”
“The photographs, when you see them, are extremely innocent,” said Jean-Michel Sivry, director of le Regroupement des Artistes en Arts Visuels, a Quebec artist advocacy group. “There’s nothing pornographic about them. You find the very innocent full view of a little one.”
Countered Paul Maurer, vice president of the National Coalition for the Protection of Children & Families in Cincinnati: “Child pornography by definition does not require a sexual act to take place. Just the sheer volume of photos raises enough of a question that there ought to be an investigation of some sort.”
Almost a month after the incident, Tremblay is still fighting to get her work back, wrestling red tape in two countries, learning firsthand how poorly politics and pushing the creative envelope can mix. Johnson, her lawyer, met with U.S. government attorneys last week regarding the case.
“This is a person who had no intention of bringing these pictures to the U.S.,” Johnson said. “She had to pass through for one hour at O’Hare, on a layover. That’s what astounds me the most.”
Artist groups argue that the confiscation of Tremblay’s photos highlights a growing intolerance for creative freedom and a shift in the nation’s artistic climate.
“I see this related, in some way, to the elimination of artist grants with the NEA (National Endowment for the Arts),” said Alene Valkanas, director of the Illinois Arts Alliance, a non-profit, non-government arts advocacy organization.
“It’s the work of a minority, moral spokespeople who don’t view artists as we do. To us, artists are family members, taxpayers, people who live in our neighborhoods.”
Still, in this case, the rights of the artist do not necessarily supersede the rights of the child. As Maurer put it, “If we’re going to err on one side or another, we as an organization would say, `Let’s err on the side of the kids.’ We always weigh on the side of protecting the innocent, and children are the most innocent of all.”
Granted, it is impossible to judge whether Tremblay’s photos contain offensive content without viewing them. But her backers in the arts community cite her track record: Tremblay has mounted 20 solo exhibitions since 1986 and has works in the Canada Council’s Art Bank and the Musee du Quebec.
Her photography, which centers on human subjects, often incorporates elements of brushwork and sculpture, and has utilized nude female models. In a recent statement, Tremblay identified the period between 1850 and 1900 as an important reference point for her work, as she explored the theme of suppressed eroticism in the Victorian era.
Up against the law
So far, the U.S. government has remained tight-lipped about the case. Stuart Fullerton, the assistant U.S. attorney looking into the possible charges against Tremblay, would say only that “the investigation has not been resolved.”
Tremblay could face charges of producing and possessing child pornography, as well as transporting it into the U.S. If accused and convicted of breaking U.S. pornography laws, Tremblay could serve up to 10 years in prison.
Before Tremblay’s formal defense began, Fullerton was contacted by Sylvia Wolf, associate curator of the Art Institute of Chicago’s photography department. Wolf was among the first to speak up for Tremblay, writing Fullerton the day after the incident.
“Ms. Tremblay is a respected member of the artistic community of Quebec,” Wolf wrote in her May 14 letter. “I urge you to consider Ms. Tremblay’s photographs in the context of artistic expression and return them to her without further inconvenience.”
That same day, Sivry’s group attacked the actions of the U.S. Customs agents. “This unfortunate incident shows once again how censorship has spread in North America and how artistic creation is threatened on this continent,” the RAAV said in a statement.
“I think she was trapped,” said Bastien Gilbert, another Canadian artist advocate, who heads le Regroupement des Centres d’Artistes Autogeres du Quebec (RCAAQ). “She was of good faith. She took that plane to Chicago, but it was something she should never have done. They were obviously waiting for her.”
What remains unclear is how U.S. agents in Chicago got their information. Tremblay was detained at O’Hare by three agents who boarded her plane; she was taken into custody before she could leave the aircraft.
“They told her to stand up, spread eagle, searched her and took her to a place where she was interrogated for hours,” Johnson said.
Tremblay, who was headed to Asia to begin a two-month study of gender and identity issues, had just arrived from Toronto. There, she had been questioned for several hours at Pearson Airport, apparently by either police or U.S. Customs agents.
“They gave her back her material, said good luck to her and didn’t say anything would happen in Chicago,” Gilbert said.
The week her materials were seized, Tremblay, the RAAV and the RCAAQ contacted the Canadian embassy in Washington, to no avail. “This is now a private matter between a Canadian citizen and the American justice (system),” said Helene Bouchard, an embassy representative.
The Tremblay incident marks the latest arts powder keg involving photographers and naked children. In 1994, New Jersey resident Ejlat Feuer spent time in jail, endured a two-month ban from his home and for a time avoided, under police orders, any contact with his 6-year-old daughter while he was being investigated for child pornography charges.
As part of his studies in an amateur photography class, Feuer had snapped 110 photos of his daughter in the nude. After a yearlong investigation of Feuer–a businessman with a long-standing marriage and no criminal record–prosecutors agreed to a pretrial program aimed at clearing his record of child endangerment charges.
In 1990, a phone call from a San Francisco lab resulted in a raid on photographer Jock Sturges’ studio. Investigators seized 100,000 negatives and his photographic equipment. Though Sturges’ pictures of naked children have been exhibited in respected galleries and museums, it took two years before a grand jury threw out the case, and a court order for Sturges to get his equipment back. The case cost Sturges $100,000 in legal fees.
Tremblay, too, could face a lengthy, tangled legal battle. In the meantime, her project, her trip and possibly her freedom remain in a state of flux.
“She has no photographs to work with. She was not able to go to Hong Kong,” Gilbert said. “It’s all very sad for her.”
Or potentially sadder, anti-pornography forces counter, for the 3-year-old girl.
“She (Tremblay) could scream all she wants about artistic value,” Peters said. “If she posed this child sexually, I’d say: No sympathy. Guilty as charged.”
