Lascivious exhibition of the genitals or pubic area of any person

Lascivious exhibition of the genitals or pubic area of any person is a form of sexually explicit conduct. In the 1989 case of Massachusetts v. Oakes, two members of the Court expressed approval of a law that would have prohibited any depiction of child nudity, so long as the law drew certain exemptions for a narrow range of proper "purposes." In 1990 in Osborne v. Ohio, the Court held constitutional a statute prohibiting child nudity if there was a "graphic focus on the genitals," a term that had been previously unknown in the Court's child pornography or obscenity cases. The test seems to invite prosecutions of pictures in which a child's genitals appear at the center. Thus, a finding of graphic focus may depend on where a photographer aims his camera, making a determination of constitutional protection depend on what could be an accident of pictorial composition. Lower courts have contributed to the expansion of the definition.

In the 1994 case of United States v. Knox, the Third Circuit held that a depiction could constitute a "lascivious exhibition of the genitals" even if a child is wearing clothes. The defendant, Knox, possessed videotapes that zoomed in on the genital areas of clothed girls. The Third Circuit approved Knox's conviction under federal law, deciding that the definition of "child pornography" did not require child nudity. The Circuit held its ground, even after the Supreme Court remanded the case to the Circuit for reconsideration in light of a brief by the Solicitor General of the United States in which he argued that the Circuit had gone too far, and that the statute required at least "discernibility" of the genitals if not outright nudity.' The Knox case caused a "political firestorm"; it prompted front-page headlines, a resolution passed by Members of Congress condemning the Solicitor General's interpretation, and the unusual step of the members of Congress filing a brief in the case.

Meanwhile, other district and circuit courts have been busily amplifying the meaning of "lascivious exhibition." Virtually all lower courts that have addressed the issue have embraced the widely followed so-called Dost test, originally developed by a California district court and affirmed in an opinion by the Ninth Circuit. The test identifies six factors that are relevant to the determination of whether a picture constitutes a "lascivious exhibition"; it includes such questions as "whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity" and "whether the visual depiction is intended or designed to elicit a sexual response in the viewer."

History

In passing the Child Protection Act of 1984, Congress replaced "lewd" with "lascivious" because "lewd" had been associated with obscenity and Congress wanted to make it clear that an exhibition of the genitals or pubic area did not have to meet the obscenity standard to be unlawful. United States v. Wiegand was a case in which, on 18 March 1987, the U.S. Court of Appeals for the Ninth Circuit ruled that "'Lascivious' is no different in its meaning than 'lewd,' a commonsensical term whose constitutionality was specifically upheld in Miller v. California".

Criticism

Amy Adler writes, "Although the comparison is exaggerated, to say that lasciviousness inheres in pictures of children is a bit like saying that the meaning of a Rorschach test inheres in the blots."