Is It Art? Or Is It Child Pornography?

If you’ve never heard the term “lascivious exhibition” you’re not alone. It could also be called lewd behavior, indecent conduct, or sexually explicit content. If you’re still confused, you are not alone: the Courts are too. If you are trying to understand the definition of child pornography in the federal context, you cannot simply look to the language of the statute (law). Keep reading to shed some light on this confusing term and a six-factor test to discern art and other protected content from pornography.

What is Lascivious Exhibition?

The Fifth Circuit has defined “lascivious exhibition” as “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.”  See, United States v. Steen, 634 F.3d at 828 (quoting United States v. Grimes, 244 F.3d 375, 381 (5th Cir. 2001)). This can be the key issue in a child pornography federal prosecution.

Crucial to understanding the Court’s assessment of “lasciviousness” under §2256(2)(E), is familiarity with the Fifth Circuit’s application of a six-factor test, otherwise known as the Dost factors. See, Steen,634 F.3d 822, 826 (5th Cir. 2011).

The Fifth Circuit applies the Dost factors when determining whether a particular depiction of a minor constitutes an actual “lascivious exhibition of the genitals or pubic area.”

These factors are:

1. Whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
2. Whether the setting of the depiction is sexually suggestive, that is, in a place or pose 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 nude;
5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; or
6. Whether the depiction is designed to elicit a sexual response in the viewer.

The Fifth Circuit has made repeatedly clear, however, that no one Dost factor is determinative, and that the ultimate determination of whether a depiction is “lascivious” must be based on the overall content of the visual depiction-at-issue (commonly photographs and/or video-recordings). Id.

How do the courts apply the Dost factors?

Focal Point—First Dost Factor

When considering whether the visual depiction focuses on or accents a child’s genitals, the Court considers such things as the position of the camera or camcorder, whether the zoom feature was utilized to focus on or emphasize the genital area, and whether the view of the genital area is merely “incidental” and/or only “fleeting” or very brief.  See United States v. Traweek, No. 4:13-CR-712, 2015 WL 5972461, at *12 (S.D. Tex. Oct. 14, 2015), aff’d, 707 F. App’x 213 (5th Cir. 2017).  For example, in Steen, the Fifth Circuit found the first Dost factor lacked support where the minor’s pubic region was only visible for about 1.5 seconds, and for the brief seconds the pubic region was visible, it was on the far side of the image’s frame.  Steen at 826.

Sexually Suggestive Setting & Unnatural Pose—Second and Third Dost Factors

The Fifth Circuit has stated that the traditionally “sexually suggesting settings” are “beds and bedrooms,” as they are “frequently associated with sexual activity.” Steen at 827.  Typically, the Court does not make a finding of “lasciviousness” here unless the minor’s conduct or “pose” is otherwise unnatural or atypical for the setting. Thus, a depiction of a child sleeping or disrobing in a bedroom, the Court has found, does not evidence a “lascivious exhibition” where such activities are “commonplace bedroom activities.”  Id.  Compare, United States v. Villasenor, 236 F.3d 220, 223–24 (5th Cir.2000) (finding photos featuring “the pubic area of a 15–year–old girl dressed in leopard skin panties and a black bra or in a t-shirt and nude from the waste down; lying, sitting, or kneeling on a bed” to be “sexually suggestive, highlighting the pubic area in [setting] and attire…).

Nudity—Fourth Dost Factor

The fourth Dost factor tends to earn little focus from the Court, and as it is nearly always satisfied, it receives little analysis from the Fifth Circuit.  The Court has, in citing the Supreme Court, invariably held, that “nudity, without more is protected expression.”  Steen, at 827.  See also, United States v. Grimes, 244 F.3d at 381–82 (noting that to find nudity alone sufficient for child pornography would “outlaw many works of art or family photos of, say, naked children in bathtubs”).

Sexual Coyness/Willingness to Engage in Sexual Activity—fifth Dost factor

The fifth Dost factor is yet another one that tends to receive less of the Court’s attention in determining “lasciviousness.”

Significantly, the Fifth Circuit has often found this fifth factor, a minor’s “sexual coyness” as well as the third factor (“a minor’s unnatural pose”) to be less or perhaps altogether “irrelevant” where the minor depicted is “unaware” he or she is being filmed and/or photographed, etc. Steen at 827, United States v. McCall, 833 F.3d 560, 564 (5th Cir. 2016).

Intent to Elicit a Sexual Response—Sixth Dost Factor

The Fifth Circuit’s assessment as to the sixth and final Dost factor—whether the visual depictions were intended to elicit a sexual response in the viewer—deserves special attention. The Fifth Circuit itself has stated that “[t]he sixth factor is the most difficult to apply.” Steen at 828.  And while the Fifth Circuit has repeatedly stated that “no one factor is dispositive,” its clear emphasis on the sixth Dost factor is unmistakable.

For example, in the Fifth Circuit case, United States v. Barry, the Court explains its reversal in Steen of a lower Court’s finding of a “lascivious exhibition” stating: “We reversed because the evidence was insufficient to support the sixth Dost factor—intent to elicit a sexual response from the viewer.  App’x 407, 413–14 (5th Cir. 2015).

Further complicating the Fifth Circuit’s analysis of the sixth Dost factor is its consideration of not only the visual depictions themselves, but also “the context of the creation of the depictions.”  Id.  (Currently an area of unresolved Circuit split.  Some Circuits allow for a more “limited context” analysis, while other Circuits solely consider the visual depiction.)

Consider the Fifth Circuit’s commentary regarding its Steen analysis (wherein the Court found the visual depiction was not a “lascivious exhibition”) explaining that “[i]n addition to the [visual depiction in dispute], we considered the other videos on the defendant’s camera, which did not feature minors; the contents of his computer, which revealed only adult pornography; that he did not position or direct the victim to expose her genitals; that he did not upload the specific video to his computer or attempt to distribute it; and his lack of criminal history.” Id. at 825, 828. The consideration of all such factors resulted in the Court’s finding “that the defendant at most intended to excite the viewer based on voyeurism, not the display of a minor’s genitals,” and moreover, that the depicted display was indeed not a “lascivious exhibition of the genitals or pubic area.”   Id.

Fort Worth Child Sex Crimes Lawyers

If you, a close friend or loved one are facing similar child sex crimes charges, call one of our experience attorneys right away. If you need further information about Child Pornography Investigations, Indecency with a Child, or other Sex Crimes please call our office today. Your livelihood and ultimately your life could depend on getting out in front of these serious charges: if convicted you could face life in prison or life as a registered sex offender. Our veteran lawyers have handled many of these cases and know how to work within the Tarrant County and federal justice system to defend your rights.