United States v. Dost
Decision Date | 12 June 1986 |
Docket Number | Crim. No. 86-0036-GT. |
Citation | 636 F. Supp. 828 |
Parties | UNITED STATES of America, Plaintiff, v. Robert S. DOST and Edwin E. Wiegand, Defendants. |
Court | U.S. District Court — Southern District of California |
Judith S. Feigin, Asst. U.S. Atty., San Diego, Cal., for plaintiff.
James M. McCabe, San Diego, Cal., for defendant Dost.
Michael J. McCabe, San Diego, Cal., for defendant Wiegand.
VERDICT
Defendants each have been indicted for alleged violations of 18 U.S.C. § 2251(a) ( ); 18 U.S.C. § 2252(a)(2) ( ); and 18 U.S.C. § 371 (conspiracy).
From the stipulated facts in this case, the Court makes the following findings. Both defendants induced, enticed, or used minor children for the purpose of producing visual depictions of those minors. Defendants took a series of pictures of two minors in June 1984. Of the 22 photographs admitted into evidence, 21 of them (Government's Exhibits 2a-10a, 12a-23a) are of one subject, a girl whom the defendants knew to be 14-years-old at the time the pictures were taken. These photographs were taken by both defendants at defendant Dost's residence where he had the nude girl assume various supine and sitting poses. The one other photograph (Government Exhibit 11a) is of a 10-year-old girl. The girl is nude and sitting on the beach. Defendant Dost had the girl pose for this picture, and defendant Wiegand took the photograph. The undeveloped film was then mailed to a photo processing company in Hollywood, California, and, after processing, was mailed back to the defendants. The stipulated facts establish that both defendants conspired, used minors as subjects of visual depictions knowing that the visual depictions would be mailed, and knowingly received visual depictions through the mail.
The critical issue in this case is whether the pictures depict the minors engaging in sexually explicit conduct as defined in 18 U.S.C. § 2255:
The photographs at issue here do not meet the definitions contained in subsections (A), (B), (C), or (D). These photographs depict "sexually explicit conduct" only if they contain a "lascivious exhibition of the genitals or pubic area" under subsection (E).
In 1984, Congress amended the existing law by enacting the Child Protection Act of 1984, Pub.L. No. 98-292, 98 Stat. 206. This amendment created substantive changes in the law which are not relevant here.1 However, the amendment made two changes in the definition of "sexually explicit conduct," one of which is relevant here.2 Congress substituted the term "lascivious" in place of "lewd" in subsection (E) of § 2255(2). The reason for this change was described as follows:
This amendment would replace the current law's prohibition of the "lewd exhibition of the genitals" with a prohibition against the "lascivious exhibition of the genitals." "Lewd" has in the past been equated with "obscene"; this change is thus intended to make it clear that an exhibition of a child's genitals does not have to meet the obscenity standard to be unlawful.
130 Cong.Rec. S3510, S3511 (daily ed. Mar. 30, 1984) (statement of Rep. Specter).
The 1984 amendments conformed federal law to the Supreme Court's holding in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). In interpreting a New York law, the Supreme Court affirmed that child pornography is outside the protection of the first amendment, regardless of whether it is obscene under the standard enunciated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Ferber, 458 U.S. at 763, 102 S.Ct. at 3357-58. The purpose behind enactment of the various protective laws known commonly as the "kiddie porn" laws is to protect children from the harmful effects of this type of sexual exploitation:
A 12-year-old child photographed while masturbating surely suffers the same psychological harm whether the community labels the photograph "edifying" or "tasteless." The audience's appreciation of the depiction is simply irrelevant to the state's asserted interest in protecting children from psychological, emotional, and mental harm.
Ferber, 458 U.S. at 774-75, 102 S.Ct. at 3364 (O'Connor, J., concurring).
Congress' intent, as evidenced by the change in the subsection (E) terminology and other changes, was to broaden the scope of the existing "kiddie porn" laws.3 Congress believed that the term "lewd" used in subsection (E) was too restrictive since it had been closely associated with the more stringent standard of obscenity.4
Although this Court agrees with Judge Miller's observations, his description of "lewdness" in the context of visual depictions of children does not go far enough. Although this Court would not presume to create a comprehensive definition of either lewdness or lasciviousness, a definition with which legal scholars have struggled for years,5 the Court feels that the "lascivious exhibition" determination must be made on a case-by-case basis using general principles as guides for analysis.
Because of the sexual innocence of children, that which constitutes a "lascivious exhibition" of a child's genitals will be different from that of a "lascivious or lewd exhibition" of an adult's genitals.6 For example, Judge Miller in Nemuras referred to the sexual coyness of the visual depiction. A child of very tender years, because of his innocence in matters sexual, would presumably be incapable of exuding sexual coyness. Sexual coyness is an expression outside the young child's range of experience.
Instead this Court feels that, in determining whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area" under § 2255(2)(E), the trier of fact should look to the following factors, among any others that may be relevant in the particular case:
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.
Of course, a visual depiction need not involve all of these factors to be a "lascivious exhibition of the genitals or pubic area." The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.
For example, consider a photograph depicting a young girl reclining or sitting on a bed, with a portion of her genitals exposed. Whether this visual depiction contains a "lascivious exhibition of the genitals" will depend on other aspects of the photograph. If, for example, she is dressed in a sexually seductive manner, with her open legs in the foreground, the photograph would most likely constitute a lascivious exhibition of the genitals. The combined effect of the setting, attire, pose, and emphasis on the genitals is designed to elicit a sexual response in the viewer, albeit perhaps not the "average viewer", but perhaps in the pedophile viewer. On the other hand, if the girl is wearing clothing appropriate for her age and is sitting in an ordinary way for her age, the visual depiction may not constitute a "lascivious exhibition" of the genitals, despite the fact that the genitals are visible.
In determining whether the photographs at issue here contain lascivious exhibitions of the genitals, the Court acknowledges that Congress intended that the standard be lower than that for obscenity, in line with the Ferber holding.
The photographs of the 14-year-old girl (Government's Exhibits 2a-10a, 12a-23a) depict her totally nude posed in a variety of positions. Most pictures are of her reclining on some draped material, resembling a bed, with her genitals and breasts fully exposed. In most of the pictures, her legs are open and her arms are raised behind her head. In the majority of the pictures, her pubic area is in the foreground so as to be the prominent focal point of the photograph.
The single photograph of the 10-year-old child (Government's Exhibit 11a) portrays the child sitting on the beach, looking off to her right. She is leaning back, supporting her weight on...
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