Child Porn?
By Thomas Korosec
In this day
and age when say, a grand-father cannot
bounce his grand-daughter on his knee for
fear of prosecution, here is a grim reminder
of the age we live in. This could easily
happen in the UK - if it hasn't already!!
As reported in the Dallas
Observer, USA, Jacqueline Mercado, a 33-year-old
Peruvian immigrant, took a few photos of her
young children at bath time. A week later,
Richardson police were rummaging through her
house for kiddie porn, and a state child welfare
worker came to take her kids away. Never did
Jacqueline Mercado imagine that four rolls of
film dropped off at an Eckerd Drugs one-hour
photo lab near her home would turn her life
inside out, threaten to send her to jail and
prompt the state to take away her kids.
For Mercado and her family, last fall was a happy
time, one they wanted to record and save in the
venerable tradition of the family photo. Johnny
Fernandez, Mercado's boyfriend, had just
emigrated from Lima, Peru, ending a year-long
separation, and on top of that, it was their
son's first birthday. The photographs they took
over several days in late October included
pictures of Fernandez reunited with the family at
their modest home in suburban Richardson. Others
captured their 1-year-old son Rodrigo, and
4-year-old Pablizio, from Mercado's earlier
marriage, playing in a neighborhood park. Using
the camera's timer, they also took three
snapshots of themselves, naked in their bed. They
arranged their bodies in ways that showed less
flesh than most freeway billboards.
A half-dozen others recorded the kids at bath
time. Fernandez took several photos of the boys
"playing around," naked and innocent,
with the oldest flashing a big smile. Mercado,
who says she often bathed with the kids, is in
several of the shots unclothed from the waist up,
holding her arm modestly across her bare chest.
In one, the photo that would threaten to send
Mercado and her boyfriend to prison, the infant
Rodrigo is suckling her left breast.
After Mercado dropped off the film for
processing, a technician viewed the images and
decided they were "suspicious,"
according to a police report. As required under
Texas law, he immediately contacted local police.
Mercado says that when she went to pick up her
pictures, the clerk told her there would be a
delay, and then only returned three of the four
sets of prints. To Richardson police, who arrived
at the store that afternoon and apparently made
up their minds from the content of the pictures
alone, this was nothing short of a felony case of
child pornography. "We thought they
contained sexuality," says Sergeant Danny
Martin, a Richardson police spokesman, explaining
why two Richardson police detectives began
pursuing a criminal case. "If you saw the
photos, you'd know what I mean."
With nothing else to support their contention
that the photos were related to sex or sexual
gratification, the police and the Dallas County
District Attorney's Office presented the photos
to a grand jury in January and came away with
indictments against Mercado and Fernandez for
"sexual performance of a child," a
second-degree felony punishable by up to 20 years
in prison. The charges centered on a single
photo, the breast-feeding shot. Fernandez and
Mercado say they took it--although the child had
ceased breast-feeding--to memorialize that stage
of their baby's development.
"We wanted to see if he would take it, and
he did," says Mercado, explaining through an
interpreter that it was a spur-of-the moment
notion to which they gave little thought.
"Johnny never saw the child breast-feeding,
so this was for memories. For us." Mercado,
who brushed back strands of brown hair from her
reddened eyes as she spoke, has a story that has
not changed from the start. She told the
Richardson police officer who responded to the
store's call that she had always taken pictures
of her children nude, and that it wasn't uncommon
in her native Peru to do so. They were innocent
baby pictures, taken for the family's benefit,
she said.
Five days later, when a state child welfare
investigator and two detectives arrived at her
house, Mercado again insisted that she saw
nothing wrong with the photos. She allowed the
group to search the couple's cramped room, and
the detectives went through everything, including
their photo albums, apparently looking for more
evidence of child porn. They found nothing.
"We fought so hard to come to this
country," says Mercado, a 33-year-old who
was a nurse in Peru and aspires to become
licensed in the United States one day. "For
this to happen is unbelievable."
Andrew Chatham, one of three lawyers working on
behalf of Mercado and her boyfriend, says it is
difficult to imagine a clearer case of
over-reaching by police and prosecutors.
"Their theory, which is supported by
nothing, is that these pictures were taken to
satisfy the boyfriend's sexual desires. These
aren't pictures that were peddled on the open
market. This wasn't on someone's Web site. This
is just a mother who took a roll of film and left
it off at Eckerd's. The state used them to arrest
her, indict her for a felony and take away her
kids."
On November 13, the day Richardson police
"tossed" or searched Mercado's house, a
caseworker with the Dallas County Child
Protective Services Unit of the Texas Department
of Protective and Regulatory Services took
custody of the children and recommended to a
family judge that they be placed in a foster
home. The caseworker's notes state that a
supervisor, acting on the content of the photos
alone, decided that "the children needed to
be removed from their mother's care." Her
hard-rubbed eyes drooping with worry, Mercado
says she told the caseworker, "Please don't
take our children. We love our children."
In the months since, one of the couple's most
onerous problems has been resolved. In late
March, a week after the Dallas Observer asked
District Attorney Bill Hill about the case, he
ordered the criminal charges against both parents
dropped. "It has some gray areas to it, but
it doesn't rise to the level of a crime,"
Hill said. He said justice comes from more than
isolating facts and interpreting them in a way to
make them narrowly fit into a criminal statute.
Still, at press time, child welfare authorities
continue to maintain control of the boys, even
though a lawyer appointed to represent them says
he believes they should go home. In its latest
legal filing, the state said it would not consent
to releasing the boys until the couple jumps
through more hoops, including a lie-detector test
they must take at their own expense. "They
ripped out my heart," Mercado says.
"Even if we get them back, I don't know how
we'll recover from what's been done."
"How could they accuse me of doing something
with our own children?" says Fernandez, a
lanky 35-year-old who worked as a hospital
technician in Peru before embarking on his
disastrous start in Texas. "How can they
accuse us of being something we're not?" It
wasn't difficult at all. When Andrew Chatham
first learned of the Mercado-Fernandez case from
lawyer Steven Lafuente, who the family hired at
the outset, he was certain there must be more to
it than a picture of a mother with an infant's
lips on her breast. "I wondered what I
wasn't getting," he says. "There had to
be more."
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