The other day I came across an amusing porn web site, that for all intents and purposes, dealt in Child Pornography. What I found amusing about this is that the web site operator went to great lengths to justify the existence based on the mistaken notion the exposed children were a “work of art”, and thus, legal.Internet Child Pornography “Work of Art”: A Myth
by Jim Smyser
The other day I came across an amusing porn web site, that for all intents and purposes, dealt in Child Pornography. What I found amusing about this is that the web site operator went to great lengths to justify the existence based on the mistaken notion the exposed children were a “work of art”, and thus, legal. If this does not strike your funny bone as “insane” — it should.
Let’s explore this “myth” a little further by first determining just what constitutes “Child Pornography” that these web site operators peddle in the words of the courts themselves.
We learn under UNITED STATES OF AMERICA v. STEPHEN A. KNOX, that the amended Protection of Children Against Sexual Exploitation Act criminalizes the “lascivious exhibition of the genitals or pubic area.” 18 U.S.C. 2256(2)(E). In ordinary legal usage, the word “exhibit” means “[t]o show or display; to offer or present for inspection.” Black’s Law Dictionary 573 (6th ed. 1990). The genitals or pubic area need not be fully or partially nude in order to be shown or put on display. This plain meaning of the term “exhibition” is confirmed by reference to a popular dictionary of the English language, which defines “exhibit” as “[t]o display; as: a. [t]o present for consideration; set forth . . . . b. [t]o present to view; to show, esp. in order to attract notice to what is interesting or instructive,” Webster’s New International Dictionary 893 (2d ed. 1959).
The term “lascivious” is defined as “[t]ending to excite lust; lewd; indecent; obscene; sexual impurity; tending to deprave the morals in respect to sexual relations; licentious.” Black’s Law Dictionary 882 (6th ed. 1990). Hence, as used in the child pornography statute, the ordinary meaning of the phrase “lascivious exhibition” means 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. Such a definition does not contain any requirement of nudity, and accords with the multi-factor test announced in United States v. Dost for determining whether certain material falls within the definition of 18 U.S.C. 2256(E)(2). Nor does such a definition contain or suggest a requirement that the contours of the genitals or pubic area be discernible or otherwise visible through the child subject’s clothing.
In United States v. Wiegand, 812 F.2d 1239, 1244-45 (9th Cir.), cert. denied, 484 U.S. 856, 108 S. Ct. 164 (1987), the Court of Appeals for the Ninth Circuit gives us some insights on the conduct of child nudity:
In the context of the statute applied to the conduct of children, lasciviousness is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or like-minded pedophiles. . . . The picture of a child “engaged in sexually explicit conduct” within the meaning of 18 U.S.C. 2251 and 2252 as defined by [2256(2)(E)] is a picture of a child’s sex organs displayed lasciviously–that is, so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur.
Children posing for pornographic pictures may suffer dramatic harm regardless of whether they have an “adult” look of sexual invitation or coyness on their face. Therefore, we adhere to the view that “lasciviousness” is an inquiry that the finder of fact must make using the Dost factors and any other relevant factors given the particularities of the case, which does not involve an inquiry concerning the intent of the child subject. Our interpretation of the “lasciviousness” element is consistent with the plain meaning of the statute and furthers Congress’ intent in eradicating the pervasive harm children experience when subjected to posing for pornographic purposes.
Thus, we conclude that a “lascivious exhibition of the genitals or pubic area” of a minor necessarily requires only that the material depict some “sexually explicit conduct” by the minor subject which appeals to the lascivious interest of the intended audience. Applying this standard in the present case, it is readily apparent that the tapes in evidence violate the statute. In several sequences, the minor subjects, clad only in very tight leotards, panties, or bathing suits, were shown specifically spreading or extending their legs to make their genital and pubic region entirely visible to the viewer. In some of these poses, the child subject was shown dancing or gyrating in a fashion indicative of adult sexual relations. Nearly all of these scenes were shot in an outdoor playground or park setting where children are normally found. Although none of these factors is alone dispositive, the totality of these factors lead us to conclude that the minor subjects were engaged in conduct–namely, the exhibition of their genitals or pubic area–which would appeal to the lascivious interest of an audience of pedophiles.
Now we have a good idea what constitutes Child Pornography as typically found over the internet, we can now consider whether Child Porn operators have any legal justification for claiming “works of art” in displaying these images.
In determining whether a Child Porn operator has at his/her disposal a legal defense for peddling images/movies of nude children as “works of art”, courts apply what is called the “Miller Test”, a standard developed from the U.S. Supreme Court’s 1973 Miller v. California case. Under Miller there are three standards to determine whether the images of nude children should be considered “works of art”:
(a) “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest;
(b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
An average person looking at various photos of a young nude 8-16 year old girl on a web site being operated for profit; operated as an adult porn site; operated for the sole purpose of inducing the sexual gratification of pedophiles; the marketing to pedophiles or like minded individuals under the premise of being exposed to young nude children would find all the above three standards to apply.
It should be emphasized that not all nude children would be, or should be, considered “Child Pornography”. There are a few legitimate purposes for displaying nude children. For example, a nudists society may compile a photo album of its members, including children. That’s fine because generally the children will be seen as children without any exclusive perverted focus on their genitals.
On the other hand, if an operator would attempt to define himself as a “nudists” along with his/her primary focus in displaying exposed young children and their genitals exclusively; than a reasonable minded person could find them clearly attempting to circumvent the laws in satisfying pedophiles sexual fantasies.
Thus, this notion of some web operators that believe there can be legal justification in displaying underage minors are best to remove all such content because they can easily be found in violation of federal statutes.
