In United States v. Holmes, the U.S. Court of Appeals for the 11th Circuit affirmed the defendant's convictions for production and possession of child pornography, finding that depictions of a child engaged in what would otherwise be considered innocent conduct, can constitute child pornography in certain circumstances.
In this case, the defendant was convicted of placing a video camera inside his stepdaughter’s bathroom which then recorded her normal daily routine of showering and getting ready for school. Videos and still-image files from these recordings were then found on the defendant’s computer. At trial, and on appeal, the defense argued that these files do not constitute child pornography.
Under federal law, child pornography is defined as a visual depiction that involves a minor engaging in sexually explicit conduct. The definition of sexually explicit conduct includes “lascivious exhibition of the genitals or pubic area of any person.” The question here is whether these hidden videos of what would otherwise be innocent conduct can be considered “lascivious exhibition” under the statute.
The defense argued that since the girl did not know she was being videotaped, and was performing normal, everyday activities, that the depictions could not constitute sexually explicit conduct.
The Court explained that it had previously defined “lascivious exhibition” as one that “excites sexual desires or is salacious.” It then noted that depictions of otherwise innocent conduct may become “lascivious exhibition” based on the actions and intent of the individual creating the depiction. The Court found that the depictions can constitute “lascivious exhibition” if they are taken in a manner that suggests that they are being taken to arouse or satisfy the sexual desires of the viewer. In this case, the Court found that the placement of the cameras in the bathroom where his stepdaughter was most likely to be nude, the angle of the camera, the storing of the videos and editing of still-images on the computer, and the number of files which captured images of her pubic area, was sufficient to conclude that these depictions constitute “lascivious exhibition of the genitals or pubic area.”
As a result, the Court affirmed the defendant’s convictions for production and possession of child pornography.
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