Court: Hidden Camera Videos Did Not Constitute Child Pornography

The D.C. Circuit Court of Appeals reversed the defendant’s conviction for sexual exploitation of a minor, finding that there was insufficient evidence that videos created by hidden cameras in a child’s bedroom and bathroom did not meet the definition of child pornography under federal law.

In United States v. Hillie, the defendant was charged with the possession and attempted production of child pornography. It was alleged that he placed a camera under the bed in the room of his girlfriend’s daughters, as well as in the ceiling vent of their bathroom. As a result, several videos were captured of the children undressing, applying lotion to their bodies, using the toilet, and washing themselves in the bathroom. He was convicted at a jury trial and was sentenced to over 30 years in prison.

Determining Whether the Videos Depict Sexually Explicit Conduct

The question on appeal was whether the videos depicted the children engaged in sexually explicit conduct. Under federal law, sexually explicit conduct includes the “lascivious exhibition of the anus, genitals, or pubic area.” So, the precise issue in this case is whether the videos, which did depict the pubic areas of the children, constituted a lascivious exhibition.

The defendant argued that in order to be lascivious, there must be some objectively sexual nature to the depiction. He contended that it needs to be something more than a child simply dressing and undressing, or using the bathroom. The Court agreed and stated that to be lascivious, there has to be some lustful manner to the exhibition of the child’s genitals or pubic area so as to suggest sexual activity. An example of this would be a child spread out on a bed exposing his or her genitals.

The Court rejected the government’s argument that it should evaluate the case under the Dost factors that have been adopted by several other federal circuits. Under these factors, courts will consider not only the visual depiction itself, but also whether the image or video “is intended or designed to elicit a sexual response in the viewer.”

The Court, however, refused to adopt the factors outlined in Dost, explaining that it believed that its rationale was in conflict with prior Supreme Court decisions which held that the focus must be on the child’s conduct, not the perspective or intent of the viewer. Of particular note, the Court pointed out that the statute prohibits sexually explicit conduct, not sexually implicit conduct. It also noted that several other federal circuits have similarly rejected the Dost factors.

Did the Videos Constitute Child Pornography?

The Court then went on to find that videos of the child undressing, which exposed her naked body and genital area, was not lustful and did not suggest sexual acts. Therefore, the defendant’s possession of these videos was not in violation of the child pornography statute.

With regards to whether the defendant’s conduct constituted the production, or attempted production, of child pornography, the focus for the Court was whether there was an intent to “use” or “employ” the children to engage in sexually explicit conduct. Therefore, in this instance, it’s not whether the depiction was sexually explicit, but whether the defendant intended to create one that was.

The Court distinguished this from the offense of voyeurism, which is the intent to generally record the private parts of a person without their consent. In order to constitute a violation of the sexual exploitation statute, the defendant would need to have the specific intent to capture the child displaying her genitals in a lustful manner.

After reviewing the evidence presented at trial, the Court held that the government did not introduce any evidence that would permit a jury to find that the defendant intended to capture the children engaging in a lustful or sexual manner (as opposed to just intending to record them in the nude). It concluded that any finding of such intent would be nothing more than speculation.

Therefore, the Court found that the evidence was insufficient to sustain the defendant’s convictions for the possession and attempted production of child pornography.