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Is it illegal to use children's photos to fantasize?

Question: 

Dear Stop It Now!,

If a child or their parent / guardian posts a picture or video of the child in revealing clothing such as a swimsuit on social media, is the material considered sexually explicit, and would it be illegal to masturbate to or have fantasies about that content?  Are laws in California of the United States different from other places in this regard?

Response: 
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Dear Questioning Adult,

I appreciate you reaching out to us with your questions, and please understand that we are not a legal service and cannot give you a full and thorough answer about what you're asking as an attorney would. We can give you more general information, but I think that it may be helpful for you to reach out to a lawyer to discuss your specific questions. I know that can feel difficult, but you can use language like, "If someone was doing [...], would that be illegal?" without making any disclosures of your own or other people's behaviors – and then you’ll be able to explore all facets of this situation with a knowledgeable professional. 

What is Abusive?
What we know is that child sexual abuse material (also called child pornography) is illegal in the United States including in California. Child sexual abuse material covers a wide berth of images and videos that may or may not show a child being abused – take, for example, nude images of youth that they took of themselves. Although most of the time clothed images of children is not considered child sexual abuse material, this page from Justice.gov clarifies that the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity. So it’s possible that context, pose or potentially even use of an image can have an impact on the legality of the way an image is perceived. For example, if someone was arrested for having several images of child sexual abuse material on their computer, and was discovered to have several images of children in swimsuits in that same folder – I imagine it could be possible that prosecutors may look to say that those images, in this person’s hands, was abusive. 

Fantasizing is not illegal, but I do want to share that there are different schools of thought among researchers and practitioners regarding the use of fantasies of young children or use of cartoon images of children for sexual gratification in terms of whether this is considered abusive behavior. What is clear is that we can become desensitized over time to certain images, and then begin to seek more and more edgy stuff. Our lines become more blurry, and it becomes too easy to start making excuses for behaviors that begin to cross legal and ethical lines.

Getting Help
I know that the following information and resources may go far beyond what your initial question was, but when we are presented with questions like these, we generally find that folks are looking not only for an answer about the legality of their behavior but also are not comfortable with how they are feeling about their behaviors - or they are asking for someone they care about and want to help.

So while I don’t know the motivation for your question, if you are questioning the safety and risk, or even the ethical implications of your own viewing behaviors, now is a great time to get help. And help is available. You certainly don’t have to go through this alone. And again, while I don’t know exactly your motivation, there are many folks who reach out to us who have a sexual attraction to children and who are looking for support to maintain safe and legal behaviors. Have you ever thought about reaching out to a counselor? There are specialized therapists who work with adults who are having sexual feelings towards children, or who have other questions or concerns about their sexual feelings, thoughts and/or behaviors. 

Many adults who are struggling with concerning sexual thoughts and feelings towards children can and have gone on to live lives that are both fulfilling and safe. The type of professional you’re looking for would be someone who specializes in adults sexual behavior concerns or sex-specific treatment. Many people who have spoken with a specialized counselor have shared with us that it has helped with their mental health, ongoing safety, and even in managing any concerns that they are currently wrestling with – including thoughts or feelings that you’re questioning or that feel risky. I’ll leave you our specialized resource guide for People Concerned About Their Own Thoughts and Behaviors, as we have included places to find sex-specific therapy referrals, as well as other ways to connect with other people who may be going through a similar experience. 

It’s also possible that you may be wondering How to Ask for Help. It’s normal to feel like this isn’t something you can share with other people, or to worry you may be judged, shamed or even punished. Our tip sheet helps break down some of the things to look for in a provider to ensure that they’re fit to work with you – that they will not unnecessarily criminalize behavior that is not illegal, that they are compassionate and comfortable with this topic, and that they’re experienced. And, it also goes over some ways to start thinking about whether there is anyone in your life you’d like to disclose your feelings to. It’s important to have other people to turn to in moments of stress.

Thinking About Safety and Support Systems
And that makes me think about how it may be helpful for you to work on a Safety Plan for yourself. Planning ahead for unexpected situations or things that make you feel unsafe can be helpful in minimizing risk. Safety planning – which may include keeping a schedule, having a support person to call, or finding new ways to connect with friends and peers – can be especially helpful now when so many of our regular support networks have changed or fallen away. Even if you’re not ready to share all of what’s going on for you, you can still talk about your feelings and any struggles you’re having more generally as a way to get support. And, another is to minimize your interactions with youth online and offline – and thinking about how you can put this into practice for yourself if you haven't already. 

Right now while we’re shifting how we’re living our lives during this stay-at-home order, having support may be more important than ever. Many therapists have moved their practices online, and are offering visits over the phone or via a tele-conference service. So although you may not be able to work with someone in-person, this may be an ideal time to find a counselor. I know that many folks may find it more comfortable to work with someone remotely at first, and then you can think about transitioning to in-person services with this person at a later time potentially. You can Another idea would be to dip your toe in, so to speak, by reaching out to one of these online groups I’ve included below – all of which are geared to people who recognize that they are having sexual thoughts, fantasies or attractions to children, but who also want to stay safe. 

I hope this information is helpful, and please reach back out with any further concerns or questions.

Take care,
Stop It Now!

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Last edited on: June 19th, 2020