Is It Illegal To Have Naked Pictures Of Your Kid? A Lawyer Explains

Ad failed to load

I think you'd be hard pressed to find a parent nowadays without at least one naked baby bum or shirtless toddler somewhere in their camera roll. Babies and small children are naked beasties, and they're fairly adorable. The nudity is innocent, and it feels almost sacrilegious to consider it anything but the sweetness that it represents. However, legally, that might not always be the case. It's a legal gray area that has been battled in court and in the court of public opinion. Once and for all, is it illegal to have naked pictures of your kid?

It turns out, as is the case for many types of litigation and prosecution, intent matters. There's a huge difference between taking a picture of your naked toddler who's managed to cover themselves in flour while only wearing a Yankees cap and taking pictures of your tween daughter in a similar situation. One is seen as an innocent, albeit messy captured memory, while the other is somewhat more lascivious in nature, something that feels like a form of predation, and would likely end in judgement and prosecution, according to FindLaw.com.

As for the court of public opinion, there will always be people, who, regardless of intent or legal standing, will shame you for having such images if you post them to your social media, so it's probably best to avoid that practice entirely.

Ad failed to load

I asked an attorney if it's legal to have naked pictures of your kid and to explain in greater depth. Matt C. Pinsker Esq., Adjunct Professor, Homeland Security & Criminal Justice at the L. Douglas Wilder School of Government and Public Affairs at Virginia Commonwealth University tells Romper, "The mere fact that there is a nude image of a minor is not inherently child pornography. What distinguishes illegal child pornography from legal nude images protected by the First Amendment is that child pornography is done for sexual purposes. The precise language under federal law is if there is a 'lascivious exhibition of the genitals or pubic area.' 18 USC Section 2256(2)(B)."

Again, it comes back to intent. Think of it in terms of a minor car accident. Say you accidentally forget to engage your emergency brake on a steep hill and your car rolls into the neighbor's fence. It sucks, and you'll have to pay for damages, but you'll likely avoid criminal prosecution because it wasn't your intent to screw up their fence, and no one was injured. (I am speaking from experience. My childhood fence may as well have had a bullseye on it, it was hit so frequently.) However, if you purposely drove your car into someone's fence because they pissed you off at the block party, you're in big trouble. Intent is often king.

Ad failed to load

Counselor Pinsker notes that "if a parent is simply taking an innocent picture of a toddler in a bath, there is nothing sexual about it. Similarly, documentaries about naturism or primitive tribes in Africa and South America, pictures in medical textbooks, and other such materials containing nude images of minors will not be considered child pornography because there is nothing sexual about them." That means, in court, you won't likely be prosecuted. However, my husband, a police officer in the city of New York, has testified in cases where the gray area is so poorly defined because of the age of the child that it became legally tricky.

Pinsker says that you must be aware of things like how the child is posed — is it natural or was it staged? Is the subject being forced to look coy or alluring? That's illegal, and could be prosecuted. And generally? Genitalia — the pubic region as a whole — is a no photo zone.

Ad failed to load

It's a challenging question, and it's often up to the judge to determine, if the case gets that far. Your best bet is to keep the pictures natural and light, avoid taking photos of their genitalia, and don't disseminate the pictures once you've taken them.

Check out Romper's new video series, Bearing The Motherload, where disagreeing parents from different sides of an issue sit down with a mediator and talk about how to support (and not judge) each other’s parenting perspectives. New episodes air Mondays on Facebook.

Ad failed to load
Must Reads

These Millennial Parents Are Taking Gender-Neutral Parenting To An Entirely New Level

A woman on the subway looks at my bulbous shape and asks, “What are you having?” I take a deep breath and throw a glance to my 5-year-old. “I’m having a baby,” I say to the woman. “No, no” the woman says laughing as she pushes further. “Are you havin…
By Madison Young

I’m Registered At Babies “R” Us, & I'm Freaking The Hell Out

Hi. My name is Abi, and I’m registered at Babies “R” Us — and I’m freaking out. This may sound silly, but after being a die-hard Toys “R” Us kid, I was so excited to register at their baby store once my husband and I finally got our big fat positive …
By Abi Berwager Schreier

My Daughter Is Obsessed With Being "Pretty" & I'm Way Past Terrified

Last week, when I picked up my daughter after school, she immediately wanted to know if I liked her hair. "Is it pretty?" she asked. Her hair was pulled up into two ponytails that were intertwined into thick, long braids. A shimmering pink and purple…
By Dina Leygerman

7 Things No One Tells You About Having A Baby In Your 20s, But I Will

I was 24 when I found out I was pregnant with my daughter. The pregnancy was a surprise, since I was on birth control (side note: antibiotics and birth control don't mix), but my partner and I decided to continue with the pregnancy and committed to m…
By Candace Ganger

Women Who Miscarry Early Deserve To Grieve — Here's How Hospitals Should Be Helping

When I lost my baby back in 2013, it was because of a very early miscarriage. Because of the little amount of time I spent being pregnant, it was though my child had never really existed, which made the next few years hard — I felt like they had been…
By Risa Kerslake

7 Things I Wish My Partner Had Said To Me In The First Hour After Giving Birth

I don't know if it was the buzz of the surrounding machines, the non-existent cry of our son as the doctors tried to resuscitate him, or the fact that I'd already been through labor and delivery once before, but I knew something was missing after I h…
By Candace Ganger

Moms’ Groups Weren’t For Me, Sorry

I go to my moms’ club everyday of the week, but not usually on weekends. My moms' group is a place I can always count on finding fellow mothers who understand the daily struggles and triumphs of parenthood and of juggling life’s responsibilities. Dep…
By Samantha Taylor

Millennial Women Are Getting Married Later Than Gen X, & The Reasons Why Are Pretty Badass

The battle of the generations seems to come up when it comes to every lifestyle or career choice people make. Women, especially, are an important demographic when it comes to analysts looking at the lifestyle choices we make or the expected milestone…
By Josie Rhodes Cook

I've Had 3 Miscarriages But *Please* Keep Telling Me About Your Pregnancy

I can feel the tension the moment my friend announces her pregnancy. I can hear the forced nonchalant attitude she's willing herself to exude as she fishes for the ultrasound. I know why I was the last to learn that she was expecting; why she keeps l…
By Danielle Campoamor

7 Early Signs You're Going To Need An Epidural, According To Experts

Even if you've constructed an elaborate birth plan, it's impossible to control every aspect of labor and delivery. Complications can occur, proactive measures might be necessary, and your mind is subject to change when those damn contractions really …
By Candace Ganger

I'm Pregnant & I Refuse To Read Any Parenting Books

I didn't read any parenting books when I was expecting my daughter, and I refuse to read any parenting books as I await my second child now. I'm the first to admit that I don't really know what I'm doing when it comes to raising my daughter. A good d…
By Marie Southard Ospina

7 Reasons Why March Babies Are Total Badasses

From the moment you become pregnant, you begin to wonder what your little one will be like. Will they look like you, your partner, or your Great Aunt Edna? Will they be the quiet, thoughtful type or arrive on this planet raring to go? It's fun to ima…
By Caroline Shannon-Karasik

12 Overnight Face Masks To Use To Wake Up Feeling Pampered AF

Spring is right around the corner, and as far as I'm concerned, the sunshine and warm breezes can't come soon enough. But now that we're about to say goodbye to winter, it's a good time to take stock of your facial skincare routine. You know, in the …
By Katie Malczyk

11 Essential Products To Pack In Your Hospital Bag, According To OB-GYNs

The minute you go into labor (or think you're going into labor), chaos ensues. You and your partner are likely to get a little frantic, just like in the movies, so you most definitely want to have a hospital bag packed before the day comes. This prec…
By Abi Berwager Schreier

7 Photos You *Must* Take In The First 6 Months Of Motherhood

In my experience, becoming a mom is like becoming an amateur photographer. There's just something about the need to capture every single coo and sorta-smile that leaves you obsessed with all things photography. I know I couldn't stop taking selfies w…
By Candace Ganger

Here's How Early An Ultrasound Can Actually Determine Your Baby's Sex

From the moment you see those two lines on a pregnancy test, there are a few markers along the way that stand out as especially exciting. Amongst them are hearing your baby's heartbeat and feeling that first, sweet little kick. And if you are finding…
By Caroline Shannon-Karasik

9 Easy Kid Foods To Turn Green, Just In Time For St. Patrick's Day

The best part about having kids is that you get your own personal crew to celebrate the holidays with, in all your color coordinating and matching glory. And with St. Patrick’s Day right around the corner, you are obviously working on turning everyth…
By Mishal Ali Zafar

Here Are Some Conditions That Might Require You To Be On Bed Rest During Pregnancy

When I worked in an office, I worked with quite a few pregnant ladies all at the same time. Something must have been in the water, because while I was there for three years, two of my coworkers got pregnant twice, and another girl was pregnant with h…
By Abi Berwager Schreier

I Didn't Follow The Pregnancy Diet Rules & My Daughter Turned Out Just Fine

My diet is an ever-changing and wholly personal thing, which is precisely why I refused to follow any pregnancy diet rules when I was expecting my daughter. For years, I've essentially practiced intuitive eating, in that I listen to my body and eat w…
By Marie Southard Ospina

5 Foods You & Your Partner Should Eat If You're Trying To Get Pregnant

When you're trying to conceive (TTC) and it's just not happening, it's easy to feel like you're doing something wrong. It can be soul-crushing to keep seeing negatives when all you really want to do is wave a positive pregnancy test in the air. So wh…
By Kate Miller