Aug 07, 2012 Risking prosecution for possessing “lewd” photos of children
Defending child pornography charges is often a gut-renching experience. Nevertheless, even when the defendant has actually knowingly created, distributed or possessed the images, critical civil liberties issues are usually involved with such matters as search and seizure, the right to remain silent, vague and overbroad statutes, commandeering of the defendant’s computer by viruses and other invasions, proof of whether the images actually depict minors, and whether the images fit under the definition of child pornography even if the images are of minors.
Whatever one feels about it, many are interested about the anatomy and sexual activity of youngsters, including teenagers, to the point that the Free Speech Coalition won a challenge against allowing child pornography convictions for images of adults appearing to be minors, even if the adults intentionally try to look like minors. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The interest runs from the sexual activity in Romeo and Juliet to women flashing their breasts in the Girls Gone Wild series to actual sex. While Ashcroft v. FSC prevents child pornography convictions where the images are of adults, there sadly remain plenty of people, for sexual purposes, producing, distributing and possessing material with minors, and often even with prepubescent children.
A few years ago, someone asked me whether it is safe to photograph women flashing their breasts without fulfilling the provisions under 18 U.S.C. § 2257, which generally requires producers and providers of sexually explicit images to obtain and maintain proof that the images are not of minors. Sexually explicit conduct generally means:
(i)sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(iv)sadistic or masochistic abuse; or<(v)lascivious exhibition of the genitals or pubic area of any person.
Consequently, § 2257 does not appear to apply to the mere depiction of a minor female’s breasts. However, § 2257 alone does not tell people whether they will be prosecuted for nude and sexual images of minors (and even photographs focusing on a minor’s clothed crotch can risk prosecution and conviction). Beyond child pornography statutes are obscenity statutes, which go beyond depictions of minors. We also have state statutes, including Massachusetts’ statute prohibiting lewd images of minors, even of their buttocks and female breasts: "Whoever knowingly purchases or possesses a negative, slide, book, magazine, film, videotape, photograph or other similarvisual reproduction, or depiction by computer, of any child whom the person knows or reasonably should know to be underthe age of 18 years of age and such child is … (vii) depicted or portrayed in any pose, posture or setting involving a lewd
exhibition of the unclothed genitals, pubic area, buttocks or, if such person is female, a fully or partially developed breast ofthe child; with knowledge of the nature or content thereof shall be punished by imprisonment in the state prison for notmore than five years…."
General Laws c. 272, § 29C,
Applying the foregoing statute, the Massachusetts Court of Appeals (thank you listserv member for the link) recently upheld, 2-1, a conviction for possessing images of a nude girl apparently playing on the beach, at least as the dissent describes it. Massachusetts v. Sullivan, ___ N.E.2d ___ (Ma. App., July 30, 2012). My colleague who provided me the link to Sullivan questioned whether Sullivan’s trial lawyer sufficiently preserved for appeal whether the images at issue could constitute lewd images. I have not had a chance yet to determine whether the current state of appellate caselaw would permit a conviction for the mere depiction of a minor’s breasts or buttocks without more. In Sullivan, the minor’s bare crotch also was exposed. Sullivan includes a very spirited dissent — with both the majority and dissent describing the images, which descriptions I do not repeat here — including: [W]hether the defendant found this photograph lewd is not the test. "If [the defendant’s] subjective reaction were relevant, a sexual deviant’s quirks could turn a Sears catalog into pornography." [FN30] Amirault, 173 F.3d at 34. In my view, the photograph of a naked girl playing on a beach does not rise to the level of a "lewd exhibition." Therefore, even if the indictment adequately charged the defendant with conduct amounting to a crime, the Commonwealth’s proof of such conduct failed as a matter of law.
Sullivan (Milkey, J., dissenting).
Particularly with the sharp 2-1 split in Sullivan, I anticipate seeing further appellate treatment of Sullivan.