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Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


Sixth in a series on laws affecting photographers and the models they work with. I'm an MM photographer and a licensed Texas attorney. For liability reasons I won't be giving any legal advice here - just some basic legal principles. Consult an attorney if you have any specific legal situations of your own. Remember that laws vary from state to state and country to country, and federal law may trump state/local laws.   

Warning - sexual offenses vary greatly from state to state and country to country. What follows are general legal principles and, where indicated, the law in my home state of Texas.

EVEN BIGGER WARNING - If you make a mistake and are convicted of a sex-related offense, you may be required to register as a sex offender - possibly for the rest of your life. Definitely not a good career move.

There are a number of different sexual offenses MM's should keep in mind - but I will assume that you are not involved in prostitution, explicit sexual conduct in public, or child pornography. Also, I will not be discussing obscenity laws and related Constitutional issues.

If you do outdoor nude shoots, indecent exposure is probably the most likely criminal issue you will encounter. The key to understanding these laws is to focus on 1) what parts are being exposed 2) why are they being exposed and 3) who might be there to see the sexy parts.

In Texas, indecent exposure is a misdemeanor and only covers exposing the anus or the genitals - so breasts and butts are OK! WooHoo! Other states have stricter laws - for instance the New York law includes exposing the nipple.

The Texas law also requires an intent to sexually arouse some other person (this might even include persons who view the images after you post them online). This is a common element in a number of state statutes. So "wardrobe malfunctions" would probably not constitute an offense.

Finally, to be convicted in Texas it must be shown that you were reckless about whether someone would see the model and be offended (this certainly excludes the photographer, assistants, escorts and MUA's). This last element can be addressed if you have an assistant/escort on the lookout and keep a robe handy. Other state laws require that a person actually see the model and find it offensive.

Finally, bear in mind that although the statutes apply to the person who is exposing him or herself (the model) - other persons who knowingly assist the model in committing a crime can also be charged (the photographer and anyone else who might be present to assist).

EDIT - I'm informed that the NY law does not apply to the nipples (but of course, if it's Mardi Gras you might have to throw her some beads).  wink
Feb 05 13 01:40 pm  Link  Quote 
Photographer
Rudolph Uhlman Photo
Posts: 164
Pendleton, Oregon, US


Defiantly some good things to keep in mind when shooting outdoor nudes. Thanks for the post.
Feb 05 13 01:44 pm  Link  Quote 
Photographer
HO Photo
Posts: 515
Los Angeles, California, US


THIS WARNING BEARS REPEATING.
EVEN BIGGER WARNING - If you make a mistake and are convicted of a sex-related offense, you may be required to register as a sex offender - possibly for the rest of your life. Definitely not a good career move.

When you get charged with indecent exposure or something along those lines, bear in mind that it's usually a misdemeanor case that's going to be assigned to some 24 year old prosecutor who just got out of law school. They don't care if they're screwing your life up on a technicality, they want that win under their belt.

Be sure to check and comply with your local laws. smile

Feb 05 13 02:21 pm  Link  Quote 
Photographer
salvatori.
Posts: 3,682
State College, Pennsylvania, US


Faces2Die4 Photography wrote:
...for instance the New York law includes exposing the nipple.

With due respect, this is incorrect.

Anywhere a man can go without a shirt, so can a woman. See: www.tera.ca (a Canadian site, but there's plenty of US info as well).

Feb 05 13 02:34 pm  Link  Quote 
Photographer
HO Photo
Posts: 515
Los Angeles, California, US


And I'll go ahead and supplement this very helpful OP with some California-specific details:

Every person who willfully and lewdly, either:

1.Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or,

2.Procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts,


is guilty of a misdemeanor.

Cal. Penal Code § 314

So, § 314 says you have committed a misdemeanor if you have exposed your "person" or your "private parts", your exposure was "willful and lewd," AND you are either in a public place, or there are other people there to be offended or annoyed by the exposure. Let's break it down.

So... what's exposure of your person or private parts? In a word, genitalia. Breasts, male and female alike, are fair game for catching some fresh air in California! Of course, as always, be respectful of those around you. You're not going to have a good shoot if you have a bunch of gawkers OR a police intervention -- even if the law is ultimate on your side.

What's willful and lewd?
Willful is "on purpose." Come on, MM -- you knew that. So what's lewd? It's lewd if you are intentionally drawing attention to your genitals, AND the purpose of your action is to sexually arouse or gratify yourself or someone else.

This means if you reallllly have to pee and you whip it out to go on, say, a shrub or fire hydrant, that's not indecent exposure. Your purpose was not to call attention to your unit, nor was it to get yourself or someone else off. You're good. (Actually you're not good, you're fucking uncouth. Find a goddamned bathroom).

I am guessing, likewise, that fine art nudes are probably not going to catch you a conviction under this statute, because there is (arguably) no intent to arouse or gratify.

Bear in mind, though, that just because you are likely safe from prosecution under § 314 PC doesn't mean you're in the clear. Different towns, municipalities, park districts, etc, may still be able to write you a little ticket and extract their $500 for your troubles. All I'm discussing here is how to make sure there's no actual, criminal charge to worry about.

Feb 05 13 02:46 pm  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 34,425
San Francisco, California, US


Haseeb Omar Photo wrote:
And I'll go ahead and supplement this very helpful OP with some California-specific details:


Cal. Penal Code § 314

So, § 314 says you have committed a misdemeanor if you have exposed your "person" or your "private parts", your exposure was "willful and lewd," AND you are either in a public place, or there are other people there to be offended or annoyed by the exposure. Let's break it down.

So... what's exposure of your person or private parts? In a word, genitalia. Breasts, male and female alike, are fair game for catching some fresh air in California! Of course, as always, be respectful of those around you. You're not going to have a good shoot if you have a bunch of gawkers OR a police intervention -- even if the law is ultimate on your side.

What's willful and lewd?
Willful is "on purpose." Come on, MM -- you knew that. So what's lewd? It's lewd if you are intentionally drawing attention to your genitals, AND the purpose of your action is to sexually arouse or gratify yourself or someone else.

This means if you reallllly have to pee and you whip it out to go on, say, a shrub or fire hydrant, that's not indecent exposure. Your purpose was not to call attention to your unit, nor was it to get yourself or someone else off. You're good. (Actually you're not good, you're fucking uncouth. Find a goddamned bathroom).

I am guessing, likewise, that fine art nudes are probably not going to catch you a conviction under this statute, because there is (arguably) no intent to arouse or gratify.

Bear in mind, though, that just because you are likely safe from prosecution under § 314 PC doesn't mean you're in the clear. Different towns, municipalities, park districts, etc, may still be able to write you a little ticket and extract their $500 for your troubles. All I'm discussing here is how to make sure there's no actual, criminal charge to worry about.

Understanding what you have said, it needs to be remembered that there are numerous city and county ordinances that ban public nudity in California.  So, while the state law may be a lewd conduct law, go nude in Los Angeles and you will run into problems.  Even San Francisco just passed an ordinance making it illegal to expose genitals in most public places (unless part of an organized event).

There is no "one size fits all" in California.

Violating these county and municipal ordinances are criminal offenses just as violating the state statute is.  In some cases it will be an infraction, in others a misdemeanor.  In either case, a criminal case will be brought against you.

Feb 05 13 03:07 pm  Link  Quote 
Photographer
Cherrystone
Posts: 35,964
Columbus, Ohio, US


salvatori. wrote:

With due respect, this is incorrect.

Anywhere a man can go without a shirt, so can a woman. See: www.tera.ca (a Canadian site, but there's plenty of US info as well).

Yup.

NY allowing topless females came into being 21 yrs. ago. I believe it was thru a NY Supreme Ct decision.

Feb 05 13 03:11 pm  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


salvatori. wrote:

With due respect, this is incorrect.

Anywhere a man can go without a shirt, so can a woman. See: www.tera.ca (a Canadian site, but there's plenty of US info as well).

Thanks Salvatori - I might have been looking at an outdated version of the NY law.

Feb 05 13 03:18 pm  Link  Quote 
Photographer
salvatori.
Posts: 3,682
State College, Pennsylvania, US


Small Fruit Pits wrote:

Yup.

NY allowing topless females came into being 21 yrs. ago. I believe it was thru a NY Supreme Ct decision.

And I applaud that decision...

smile

Feb 05 13 03:18 pm  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


Small Fruit Pits wrote:

Yup.

NY allowing topless females came into being 21 yrs. ago. I believe it was thru a NY Supreme Ct decision.

Thanks for the info.

Feb 05 13 03:19 pm  Link  Quote 
Photographer
HO Photo
Posts: 515
Los Angeles, California, US


GPS Studio Services wrote:
Understanding what you have said, it needs to be remembered that there are numerous city and county ordinances that ban public nudity in California.  So, while the state law may be a lewd conduct law, go nude in Los Angeles and you will run into problems.  Even San Francisco just passed an ordinance making it illegal to expose genitals in most public places (unless part of an organized event).

There is no "one size fits all" in California.

Violating these county and municipal ordinances are criminal offenses just as violating the state statute is.  In some cases it will be an infraction, in others a misdemeanor.  In either case, a criminal case will be brought against you.

Excellent point, although I believe an infraction is technically a civil offense, not a criminal one.

Certainly, photographers and models should learn and obey all applicable local ordinances or rules (yes, easier said than done sometimes!)

Feb 05 13 03:28 pm  Link  Quote 
Photographer
rp_photo
Posts: 42,488
Houston, Texas, US


Haseeb Omar Photo wrote:
They don't care if they're screwing your life up on a technicality, they want that win under their belt.

It takes a certain type of low-life bottom feeder. Maybe they should be seeking wins against the many real criminals out there.

Faces2Die4 Photography wrote:
In Texas, indecent exposure is a misdemeanor and only covers exposing the anus or the genitals - so breasts and butts are OK! WooHoo! Other states have stricter laws - for instance the New York law includes exposing the nipple.

NY stricter than TX? Who would have ever thought.

Feb 05 13 03:33 pm  Link  Quote 
Photographer
HO Photo
Posts: 515
Los Angeles, California, US


rp_photo wrote:

It takes a certain type of low-life bottom feeder. Maybe they should be seeking wins against the many real criminals out there.

It's usually more complex than that. You generally can't get a conviction without a complaining witness, and when there IS a complaining witness it's tough to toss a case out and not catch serious heat for it.

Most prosecutors are out there trying to do some good for their communities, and BELIEVE ME, there are precious few misdemeanor prosecutors who wouldn't rather be felony prosecutors going after serious criminals.

Feb 05 13 03:58 pm  Link  Quote 
Photographer
Andy Durazo
Posts: 24,418
Los Angeles, California, US


I usually use a lightmeter so my exposures are pretty decent!

tongue



http://di1-2.shoppingshadow.com/images/pi/45/53/3f/95552047-260x260-0-0_Sekonic+Sekonic+L+398A+Light+Meter+Black.jpg
Feb 05 13 04:01 pm  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 34,425
San Francisco, California, US


GPS Studio Services wrote:
Understanding what you have said, it needs to be remembered that there are numerous city and county ordinances that ban public nudity in California.  So, while the state law may be a lewd conduct law, go nude in Los Angeles and you will run into problems.  Even San Francisco just passed an ordinance making it illegal to expose genitals in most public places (unless part of an organized event).

There is no "one size fits all" in California.

Violating these county and municipal ordinances are criminal offenses just as violating the state statute is.  In some cases it will be an infraction, in others a misdemeanor.  In either case, a criminal case will be brought against you.
Haseeb Omar Photo wrote:
Excellent point, although I believe an infraction is technically a civil offense, not a criminal one.

An infraction is a criminal offense that doesn't carry the possibility of jail time.  A traffic ticket is an infraction but it is also a criminal offense, jut a very minor one.

There is such a thing as a civil offense, but it would be stated as such.  I understand your point, but an infraction is, indeed a minor criminal offense.

Feb 05 13 04:03 pm  Link  Quote 
Photographer
rp_photo
Posts: 42,488
Houston, Texas, US


Haseeb Omar Photo wrote:
Most prosecutors are out there trying to do some good for their communities, and BELIEVE ME, there are precious few misdemeanor prosecutors who wouldn't rather be felony prosecutors going after serious criminals.

With Liberals screwing us over in all levels of government, how great it would be if they acted Liberal in good ways such as tolerating nudity.

/soapbox

Feb 05 13 04:03 pm  Link  Quote 
Photographer
HO Photo
Posts: 515
Los Angeles, California, US


rp_photo wrote:

With Liberals screwing us over in all levels of government, how great it would be if they acted Liberal in good ways such as tolerating nudity.

/soapbox

roll Yes. Liberals are the force behind the enforcement of draconian nudity laws.

Feb 05 13 04:07 pm  Link  Quote 
Model
Caitin Bre
Posts: 1,798
Naperville, Illinois, US


Vice and non victim crimes is a big business in a so called free country.
Being nude a crime? A sex offence? Isn't there some real crimes they could be using tax payers hard earned bucks on?
Sounds almost like a religious opinion. Separation of church and state?
Oh No Mr Jones I don't want that cool-aid!
Feb 05 13 04:33 pm  Link  Quote 
Photographer
rp_photo
Posts: 42,488
Houston, Texas, US


Haseeb Omar Photo wrote:
roll Yes. Liberals are the force behind the enforcement of draconian nudity laws.

They should be the force behind rolling them back, along with Marijuana prohibition which IMHO is another "good" Liberal cause.

Feb 05 13 04:42 pm  Link  Quote 
Photographer
HO Photo
Posts: 515
Los Angeles, California, US


rp_photo wrote:

They should be the force behind rolling them back, along with Marijuana prohibition which IMHO is another "good" Liberal cause.

Hey, I'm with you man. I agree. But I don't think that liberals are what's keeping us from liberalizing our laws. I'd say PROBABLY conservatives are the ones clinging to, um, conservative values.

Ok, this is the wrong forum for this. But come on. smile

Feb 05 13 04:46 pm  Link  Quote 
Photographer
Kevin Connery
Posts: 16,637
El Segundo, California, US


Moderator Warning!

rp_photo wrote:
With Liberals screwing us over in all levels of government, how great it would be if they acted Liberal in good ways such as tolerating nudity.

/soapbox

With political trolls screwing over unsuspecting readers by posting off-topic troll posts, how great would it be if they kept their trolling out of the forums?

This is the only warning.

Feb 05 13 09:03 pm  Link  Quote 
Photographer
Faces2Die4 Photography
Posts: 426
Houston, Texas, US


Back to the OP, you should also bear in mind that there are other laws that might apply even if you avoid the indecent exposure rap, such as Disorderly Conduct, Creating a Public Nuisance, Disturbing the Peace, etc.
Feb 06 13 04:12 am  Link  Quote 
Photographer
hbutz New York
Posts: 3,143
New York, New York, US


rp_photo wrote:
NY stricter than TX? Who would have ever thought.

In NY, we arrest everyone, drag them into court, make everyone spend thousands of dollars on legal defense, then typically drop the charges.

Feb 06 13 04:47 am  Link  Quote 
Photographer
Four-Eleven Productions
Posts: 739
Fircrest, Washington, US


rp_photo wrote:

They should be the force behind rolling them back, along with Marijuana prohibition which IMHO is another "good" Liberal cause.

You're just living in the wrong state, amigo...

Feb 06 13 05:37 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


salvatori. wrote:

With due respect, this is incorrect.

Anywhere a man can go without a shirt, so can a woman. See: www.tera.ca (a Canadian site, but there's plenty of US info as well).

Right, but nudity alone does not equal indecent exposure.

I would be that it's possible for a man to be charged with indecent exposure, not for having his shirt off, but for what he did once his shirt was off.

Feb 06 13 08:11 am  Link  Quote 
Photographer
Atelier Hereau
Posts: 69
Stoughton, Massachusetts, US


rp_photo wrote:

They should be the force behind rolling them back, along with Marijuana prohibition which IMHO is another "good" Liberal cause.

In the interest of balance and fairness, Liberals were behind the ruling permitting women in NY State to go topless.  In interest of full disclosure, I am a Conservative.

Feb 19 13 09:54 pm  Link  Quote 
Photographer
Atelier Hereau
Posts: 69
Stoughton, Massachusetts, US


Rich Images wrote:
In the interest of balance and fairness, Liberals were behind the ruling permitting women in NY State to go topless.  In interest of full disclosure, I am a Conservative.

I was posting this while the Nigerian scammer was posting the warning.  I didn't see the Nigerian scammer's post until after I finished typing and clicked on reply.  Sorry if I did something bad.

Feb 19 13 09:58 pm  Link  Quote 
Photographer
Luke Ryan Photography
Posts: 580
Santa Monica, California, US


Haseeb Omar Photo wrote:
And I'll go ahead and supplement this very helpful OP with some California-specific details:


Cal. Penal Code § 314
.

so basically photographers are guilty of a crime for taking pictures of a nude model in public

i think that could be challenged with a free press argument.

if only i could come up with $3 million for a supreme court challenge and 10 years of my life for it

Feb 19 13 11:10 pm  Link  Quote 
Photographer
terrysphotocountry
Posts: 4,046
Rochester, New York, US


salvatori. wrote:

With due respect, this is incorrect.

Anywhere a man can go without a shirt, so can a woman. See: www.tera.ca (a Canadian site, but there's plenty of US info as well).

EDIT - I'm informed that the NY law does not apply to the nipples  {NOT}

Feb 19 13 11:19 pm  Link  Quote 
Photographer
Gold Rush Studio
Posts: 284
Sacramento, California, US


salvatori. wrote:
Anywhere a man can go without a shirt, so can a woman. See: www.tera.ca (a Canadian site, but there's plenty of US info as well).

Be that as it may, you are asking a court to interpret the intersection of two laws, one allowing women to go topless in public and another that may well apply to your photograph of said woman in public.

Long story short this will all come down on the biases of the judge and whether or not that judge thinks you're an artist or a pervert who's out to corrupt the youth of America.

Feb 19 13 11:24 pm  Link  Quote 
Photographer
Cherrystone
Posts: 35,964
Columbus, Ohio, US


terrysphotocountry wrote:

EDIT - I'm informed that the NY law does not apply to the nipples  {NOT}

What do you mean "does not apply to the nipples"?

Feb 20 13 12:03 am  Link  Quote 
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Photographer
studio36uk
Posts: 21,516
Tavai, Sigave, Wallis and Futuna


Small Fruit Pits wrote:

terrysphotocountry wrote:
EDIT - I'm informed that the NY law does not apply to the nipples  {NOT}

What do you mean "does not apply to the nipples"?

This is a twist that photographers must know about. The NY statute on indecent exposure originally read:

§ 245.01 Exposure of a person. A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed. For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola. This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment.

Exposure of a person is a violation.

After a 1992 court challenge the court limited the enforcement of that provision in respect to the F breasts including the nipples

People v. Santorelli restricted the applicability of § 245.01. The Court of Appeals of New York ruled in 1992 that exposure of a bare female breast violates this law only when it takes place in a commercial context. As a practical matter, proper enforcement of this section can be a problem, since local enforcement agents are often unfamiliar with the case law that interprets the statutory language.

Santorelli was a narrow ruling based on a very limited argument and set of facts. Not only is the tendency still to enforce on the basis of the original statute a potential problem, but if a model is being photographed topless [in public] the activity itself, and the photographer's promotion and participation in it [§ 245.02 Promoting the exposure of a person.], could easily be construe as a commercial context in which case the full original text of the statute might still be seen by a court to apply and be fully enforceable as written, and BOTH the model AND photographer could wind up being charged - - - and convicted.

Ya' pays yer money ya' takes yer chance. What photographers and models need to be aware of is that the decision in Santorelli does not hand you an all-singing-all-dancing "get out of jail free" card.

Studio36

Feb 20 13 01:29 am  Link  Quote 
Photographer
Cherrystone
Posts: 35,964
Columbus, Ohio, US


studio36uk wrote:

Small Fruit Pits wrote:

terrysphotocountry wrote:
EDIT - I'm informed that the NY law does not apply to the nipples  {NOT}

What do you mean "does not apply to the nipples"?

This is a twist that photographers must know about. The NY statute on indecent exposure originally read:

§ 245.01 Exposure of a person. A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed. For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola. This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment.

Exposure of a person is a violation.

After a 1992 court challenge the court limited the enforcement of that provision in respect to the F breasts including the nipples

People v. Santorelli restricted the applicability of § 245.01. The Court of Appeals of New York ruled in 1992 that exposure of a bare female breast violates this law only when it takes place in a commercial context. As a practical matter, proper enforcement of this section can be a problem, since local enforcement agents are often unfamiliar with the case law that interprets the statutory language.

Santorelli was a narrow ruling based on a very limited argument and set of facts. Not only is the tendency still to enforce on the basis of the original statute a potential problem, but if a model is being photographed topless [in public] the activity itself, and the photographer's promotion and participation in it [§ 245.02 Promoting the exposure of a person.], could easily be construe as a commercial context in which case the full original text of the statute might still be seen by a court to apply and be fully enforceable as written, and BOTH the model AND photographer could wind up being charged - - - and convicted.

Ya' pays yer money ya' takes yer chance. What photographers and models need to be aware of is that the decision in Santorelli does not hand you an all-singing-all-dancing "get out of jail free" card.

Studio36

I knew the play on the law, wondering how he defined his post.

If memory serves, some woman got arrested in NYC, mentioned the ruling to the cops, but they held her anyhow for maybe a day or so? Think she settled for around $25-30k.

Wish I had boobs, I'd endeavor to get arrested 3-4 times a year in NY. smile

Feb 20 13 02:00 am  Link  Quote 
guide forum
Photographer
studio36uk
Posts: 21,516
Tavai, Sigave, Wallis and Futuna


Small Fruit Pits wrote:
I knew the play on the law, wondering how he defined his post.

If memory serves, some woman got arrested in NYC, mentioned the ruling to the cops, but they held her anyhow for maybe a day or so? Think she settled for around $25-30k.

Wish I had boobs, I'd endeavor to get arrested 3-4 times a year in NY. smile

That must have been that "mermaid" case. That was fairly recent, like only 2 or three years ago. LOL

Studio36

Feb 20 13 02:40 am  Link  Quote 
Photographer
LesD1968
Posts: 20
Edinburgh, Scotland, United Kingdom


Strangely in Scotland there are no indeceny laws, so effectivley you can strip off where you like, except......wait for it.....

If someone complains you can be charged with other offences including Breach Of The Peace. as the Naked Rambler found out to his cost.

Les
Feb 20 13 03:04 am  Link  Quote 
guide forum
Photographer
studio36uk
Posts: 21,516
Tavai, Sigave, Wallis and Futuna


LesD68 wrote:
Strangely in Scotland there are no indeceny laws, so effectivley you can strip off where you like, except......wait for it.....

If someone complains you can be charged with other offences including Breach Of The Peace. as the Naked Rambler found out to his cost.

Les

Actually, he would NEVER have been charged with anything in the first place if he had gotten dressed when the police responded to a complaint and asked him to. He committed no offence at all until that instant in time. Even after all his multiple encounters with the police and the courts in Scotland he was never charged with an offence of indecency either. Only BotP or behaviour likely to cause BotP.

On one occasion he had his camping knife with him and got charged with possession of a bladed weapon as well. AFAIK that charge was dropped. He WAS like really genuinely actually camping along his travels. For the cops it was an excuse to roust him not a reason to do so that would even begin to stand up in court.

Studio36

Feb 20 13 09:46 am  Link  Quote 
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