CHILD PORNOGRAPHY

18 U.S.C. § 2256(8) defines “child pornography” as any photograph, film, video, picture, computer image, or computer-generated image or picture produced by any means of sexually explicit conduct where:

1. The production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
2. Such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
3. Such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.^[1]

The term “indistinguishable” means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This term does not include drawings, cartoons, sculptures, or paintings.

An “identifiable minor” is defined as someone who was a minor when the visual depiction was created, adapted, or modified, whose image as a minor was used in creating, adapting, or modifying the visual depiction, and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature. The government is not required to prove the actual identity of the identifiable minor.

Ashcroft v. Free Speech Coalition (2002) struck down two provisions that dealt with digitally-created images, but did not rule on 18 U.S.C. § 2256(8)(C), the subsection on computer morphing. Some circuits maintain that a visual depiction of the face of a known child transposed onto the naked body of an unidentifiable child constitutes child pornography.^[2]

Many circuits also agree that Free Speech Coalition did not establish a broad requirement that the government must present expert testimony to establish that the unlawful image depicts a real child. Instead, pornographic images themselves are sufficient to prove the depictions of actual minors.^[3] Furthermore, Free Speech Coalition does not require the government to do more than present images to the jury for a determination that the depictions are of actual children, as juries are capable of distinguishing between real and virtual images.^[4]

^[1]The inclusion of “morphed” computer-generated sexually explicit images that involve an actual minor is only included in the definition of § 2252A, whereas § 2252 is limited to unaltered images of actual minors.

^[2] United States v. Hoey, 508 F.3d 687 (1st Cir. 2007); United States v. Bach, 400 F.3d 622 (8th Cir. 2005)

^[3] United States v. McNealy, 625 F.3d 858 (5th Cir. 2010); United States v. Slanina, 359 F.3d 356 (5th Cir. 2004); United States v. Salcido, 506 F.3d 729 (9th Cir. 2007)

^[4] United States v. Farrelly, 389 F.3d 649 (6th Cir. 2004); United States v. Williams, 411 F.3d 675 (6th Cir. 2005); United States v. McNealy, 625 F.3d 858 (5th Cir. 2010)

INTERSTATE / FOREIGN COMMERCE

“Interstate commerce” is defined as commerce between different states, territories, and possessions of the United States (including DC).^[5]

“Foreign commerce” is defined as commerce between any state, territory, or possession of the United States and a foreign country.^[6]

“Commerce” includes travel, trade, transportation, and communication.^[7]

Most circuits consider images transmitted or received over the Internet to have moved in interstate commerce.^[8]

Many circuits have agreed that conviction for the advertisement of child pornography does not require evidence that the material actually crossed state lines.^[9]

^[5] 18 U.S.C. Section 10

^[6] 18 U.S.C. Section 10

^[7] Seventh Circuit Jury Instructions

^[8] United States v. Lewis, 554 F.3d 208, 215 (1st Cir. 2009); United States v. MacEwan, 445 F.3d 237, 244 (3d Cir. 2006); United States v. Runyon, 290 F.3d 223, 239 (5th Cir. 2002).

^[9] United States v. Brown, 785 F.3d 1337 (9th Cir. 2015); United States v. Clark, 24 F.4th 565 (6th Cir. 2022)

SEXUALLY EXPLICIT CONDUCT

Under 18 U.S.C. § 2256(2)(A), “sexually explicit conduct” includes any one of the following five categories of conduct, whether actual or simulated:

1. Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal;
2. Bestiality;
3. Masturbation;
4. Sadistic or masochistic abuse; or
5. Lascivious exhibition of the genital or pubic area of any person.

Most lower courts have adopted the six-factor “lascivious exhibition” test articulated in US v. Dost (S.D. Cal. 1986):

1. Whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
2. Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3. Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4. Whether the child is fully or partially clothed, or nude;
5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
6. Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Not every exposure of the genitals or pubic area of any person is a lascivious exhibition, nor does a lascivious exhibition need to meet all six (or any) of the Dost factors.^[10] The case-specific determination must be made on overall content taking into account the age of the minor.^[11]

However, the District of Columbia Circuit declined to adopt the standard for lascivious exhibition set by the Dost factors altogether. They maintain that the Dost factors “[allow] a depiction that portrays sexually implicit conduct in the mind of the viewer to be caught in the snare of a statute that prohibits creating a depiction of sexually explicit conduct performed by a minor or by an adult with a minor.”^[12]

The Fourth Circuit held that lascivious exhibition requires more than mere nudity, instead requiring “a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer.”^[13]

^[10] US v. Williams (11th Cir. 2006); US v. Brown (6th Cir. 2009); United States v. Daniels, 653 F.3d 399 (6th Cir. 2011); United States v. Steen, 634 F.3d 822 (5th Cir. 2011); United States v. McCall, 833 F.3d 560 (5th Cir. 2016)

^[11] United States v. Frabizio, 459 F.3d 80 (1st Cir. 2006); United States v. Amirault, 173 F.3d 28 (1st Cir. 1999); United States v. Smith, 459 F.3d 1276 (11th Cir. 2006)

^[12] United States v. Hillie, 14 F.4th 677, 691 (D.C. Cir. 2021), reh’g granted, 37 F.4th 680 (D.C. Cir. 2022), and on reh’g, 39 F.4th 674 (D.C. Cir. 2022)

^[13] United States v. Courtrade, 929 F.3d 186, 191-2 (4th Cir. 2019)

VISUAL DEPICTIONS

18 U.S.C.A. § 1466A(f)(1) defines “visual depiction” as including undeveloped film and videotape, data stored on a computer disk or by electronic means (which is capable of conversion into a visual image), photographs, films, videos, pictures, digital images or pictures, computer images or pictures, and computer generated images or pictures (whether made or produced by electronic, mechanical, or other means).^[14]

^[14] 18 U.S.C.A. § 1466A(f)(1) (West)