Posted July 29, 2010
Lawrence Brose’s best-known work, De Profundis (1997, reviewed in Afterimage in July 1998), is an experimental film meditation about queerness, masculinity, history, and sexuality that takes its title from Oscar Wilde’s letter from prison. Wilde was a gay martyr who would have preferred to be remembered for his art. Brose almost certainly feels the same way.
In November 2009, Brose, who in addition to his well-respected work as a filmmaker and artist was executive director of Buffalo’s CEPA Gallery, was charged in federal court with receiving and possessing internet images of child porn. The news of his arrest and arraignment, which appeared over the Thanksgiving holiday weekend, hit the Buffalo arts community like a tsunami. In the months since, Brose was persuaded to resign from CEPA by its board of directors, and his case has been the subject of multiple columns by both the arts critic and the arts editor of the BuffaloNews. Not surprisingly the coverage of this story has focused on the severity of the allegations rather than on the merits of the case. In fact, there is not much public information about the case beyond the claims made by the United States Attorney’s Office. It is not claimed that Brose created the images or that he had any improper conduct with children; there is no allegation that he sent the images to anyone else or tried to make contact with minors.
Brose and his defense team have not commented extensively on the claim, and this is also unsurprising. In building its case the U.S. Attorney’s office has at its disposal the resources of the federal government. The defense, however, is on its own, and the expenses associated with conducting the necessary forensic investigation—including, in this case, computer experts—are borne by the accused. In cases such as this the defense must play catch-up, examining the basis for the charges and determining how best to refute the claims made by the government. Time and money are against any defendant, regardless of innocence or guilt, particularly in a complex technical case like this.
Brose is also burdened with the weight of public opprobrium. The right to remain silent is imbedded in the Fifth Amendment, and is premised on the understanding that it falls to the prosecution to prove its case beyond a reasonable doubt. The theory is that there should be no inference drawn from invoking this right, but the reality is that the public expects frequent loud denials, even though public comment is almost always prejudicial to the defense. The fact that the charge itself is so shocking seems to have tainted the perception of the case as well. Finally, because Brose’s work frequently involved the exploration of transgressive sexual issues, public opinion seems to have been prejudiced even further.
Nevertheless, there are facts that have emerged about the case that are exculpatory. The laptop computer where the images were found was not in Brose’s exclusive possession and control: it was kept in a studio where many other people had regular access to it. The forensic analysis conducted by the defense to this point shows that the laptop was infected with a virus that might have permitted remote access and it appears that many of the images that form the basis of the claim were downloaded at times when Brose was out of the country and did not have access to the computer. These developments go to the heart of the case against Brose.
The legal process is a meat grinder. U.S. Attorney’s offices are like any law office in the sense that they prosecute cases they think they can win. That is one of the pernicious things about 18 USC §1466A—it is a very easy case to prosecute, and a very difficult charge to defend against. There are, however, defenses, and this seems to be a case where they apply. 18 USC § 1466A Obscene visual representations of the sexual abuse of children is a tough law. It makes it a felony to knowingly possess a “drawing, cartoon, sculpture, or painting that lacks serious literary, artistic, political, or scientific value”; and depicts a minor engaging in sexually explicit conduct; or is obscene; or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and lacks serious literary, artistic, political, or scientific value.
The statute provides that the penalty for its violation is imprisonment for “not less than 5 years and not more than 20 years.” That is five to twenty years for each image. The government says that it has found approximately 1,300 images on the laptop hard drive, although apparently many of these images are from Brose’s De Profundis, which contains no images of children that correspond with the statutory description.
It is important to understand what is meant by the statute’s language. First, there is the question of “knowingly.” The law requires that the U.S. Attorney prove, beyond a reasonable doubt, that Brose knew these images were on his hard drive. Next, there is the question of whether the images are obscene, a legal term of art, as is “pornography.” Colloquially we use the word “pornography” to mean material that is sexual in nature, but the statute requires more: the depiction must be “obscene”—a finding of fact that a jury must make— or the image must correspond with the specific description of specific sexual acts and the image must “lack . . . serious literary, artistic, political, or scientific value.” The burden of proving that an image is “obscene” rests with the prosecution, and must also be established beyond a reasonable doubt.
People who are charged under this law almost always plea out. Brose’s defense lawyer has been quoted as saying that he is unaware of anyone taking an 18 USC § 1466A case to trial, and the annotations to the statute verify this. The very fact that Brose is fighting his case, at considerable personal and economic expense, says something significant about the underlying merits of the charges.
It becomes clear that in every meaningful sense the prosecution of Lawrence Brose should be viewed as a challenge to artistic freedom, brought by a U.S. Attorney’s office that previously unsuccessfully prosecuted Critical Art Ensemble founder Steve Kurtz. Brose’s legal defense fund can be found at http://lawrencebroselegaldefensefund.com.
William C. Altreuter is an attorney and writer in Buffalo and is past board president of Squeaky Wheel/Buffalo Media Resources.