Randall County District Attorney James Farren has asked for an opinion from Texas Attorney General Greg Abbott about a law Farren says makes no sense and needs to be changed.
It stems from a case brought to Farren's attention by a woman from North Texas. Crystal Buckner divorced her husband seven years ago. Until recently, he had custody of their three daughters in Amarillo. Buckner says one early morning in February, her ex-husband allegedly made their eight- and nine-year-old daughters watch hardcore pornography on a home computer. She says she found out after the girls recounted the experience for a therapist in Plano.
Buckner contacted Amarillo police, who started an investigation, and brought the issue to Farren. But he says his hands were tied because of Texas Penal Code Section 43:24. Part of that law says, as long as a consenting parent, guardian, or spouse is present, it is not illegal for children to view Internet porn.
"How can it not be illegal for a parent to force their children to watch porn?" Buckner wonders. "How can that be?"
Farren says he understands why Buckner was so upset, and he feels the same way. "The statute in question has defenses built in," Farren explained. "One defense is, for instance, if a school were to display a video that was for sex education purposes, and it absolutely was for that purpose, obviously that's a defense. The second defense is that if a parent chooses to show apparently any pornographic material to their children, then it's a defense, they're immune from prosecution. We can file the case, but we're just going to lose. We really wrestled with this. We looked at the statute intently, we researched it, it's clearly what it says. I don't think that's necessarily with the legislators intended, but that's what it says."
Buckner charges that the situation involving her ex-husband had nothing to do with teachable moments. "Teaching your child about sex education is one thing." she says. "Doing what he did at three o'clock in the morning, drinking and making them watch it - making them! - and when one of them turned away, they'd get in trouble - that's not education."
Farren says he would certainly file some type of charges in the case if he could. "Clearly, it cannot be healthy, it cannot be beneficial to children to be shown this kind of material," he said. "In my opinion, it's not healthy as an adult, but it's certainly not healthy to show it to children who are forming their understanding of sexual relations and their own sexual identity, and to be shown graphic depictions of adults engaged in sexual activity can't possibly be beneficial, it has to be harmful. If there were a law that allowed us to pursue prosecution, we would certainly have done so. If there had been a criminal event under our laws, then the next thing we would have done was get a search warrant from a judge and go grab that movie or movies. But if there's not a criminal event, obviously, we have no power and the judge has no power to issue a search warrant, and we're foolish to ask a judge to do so."
Still, the actions of her ex-husband make Buckner wish more could be done. "At one point, my eight year old closed her eyes and tried to look away and not watch, and my ex-husband got on to her, made her open her eyes and watch. He took away their innocence. I think what he did is on the line of being a pedophile, being a child pedophile."
Farren says during no time in the investigation has the father admitted he showed the girls such a video. "In fact, we've never said that he did show them porn," he said. "We're only reporting that the children claim that he showed to them, displayed to them pornographic material. We have no statement from the father. Obviously, I've never met the father or the mother or talked to them, and as far as I know, law enforcement has never talked to the father. The children were interviewed at the Bridge Child Advocacy Center, a videotape was made, and all of that material was brought to us, but we've never seen the video. We don't have the video, and had no way to acquire it because, if the individual in possession of those materials has not committed a criminal act, then we can't even get a search warrant to get the video. Now if it were child pornography, that would be different. It's illegal for anyone to display child pornography, whether they claim it's for sex education or they're a parent or whatever, it wouldn't matter. But their description is not of child pornography, it is of adults involved in what we would call pornographic events, and that's not illegal. It's illegal to display it to children - unless it's for sex education, and apparently unless you're the parent of the child, which is strange."
Farren says, besides asking for the Attorney General's opinion, his secondary purpose in talking about the case at length is to change what he calls a bad law. "We hope to generate some media attention to this problem, and that the media attention would generate some attention from our legislators. And it has. We have had reports of several legislators, including the individual who was primarily responsible for drafting the first statute, have indicated interest in revisiting this law and changing the wording so that this unintended consequence is removed, is changed to where it still protects parents, but doesn't protect them in doing what is obviously very harmful to their children."
One of those lawmakers, State Senator Bob Deuell of Greenville, says he will advocate for a change in the law in the next legislative session.
Farren says the argument that government has no right to tell parents how to raise their children doesn't fly here. "That's like saying, 'Who's the government to come in and say whether or not I can feed my children arsenic? - They're my children.' The government should and does respect the right of parents to raise their children, but that doesn't mean a parent can do anything they want to their child. They can't say, 'I'm merely disciplining my child when I beat them with barbed wire.' Obviously, the government can step in when parents are acting in a way that is sufficiently detrimental to the mental health and the physical health of children. I understand that this is a conservative community. I'm conservative. I don't like big government. I don't want government too intrusive, and I certainly don't want government intruding into the family more than necessary. But at the same time, I don't want to live in a society where parents can murder their children, and then there's nothing the government can do because it's 'family', so the government can't step in. We have to find some balance between those two extremes, but I don't think very many people would believe that it's appropriate to show true pornographic material to their children simply because they're the parent and they choose to do that - just because they're twisted enough, they want to watch it, that they then want to subject their children to it."
Farren says the request was sent to the AG's office September 14.
Crystal Buckner has regained temporary custody of her three daughters until the hearing in February.
(Reports from the Associated Press and ABC News wires were also used in this story.)