The Dost Factors/Knox Test - A somewhat subjective law

United States v. Dost

United States v. Dost, 636 F. Supp. 828, 833 (S.D. Cal. 1986) (observing that a 14-year-old girl in photograph has "sexually coy attitude, staring directly at the camera with her head slightly bent to the side")

The Dost factors were articulated in order to provide a more concrete test for determining whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area" under 18 U.S.C. § 2256(2)(E).

The Dost court noted that the terms "`lewd' and `lascivious' have been frequently used interchangeably." 636 F. Supp. 828, 831 n.4; see also United States v. Long, 831 F. Supp. 582, 587 (W.D. Ky. 1993) (stating that the words "lewd" and "lascivious" are synonymous).

The statutes that criminalize the possession and transportation of child pornography each reference the definitions of § 2256. That provision defines "child pornography" as a visual image depicting "sexually explicit conduct," which in turn is defined to include "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. §§ 2256(8), 2256(2)(E). These six so-called Dost factors are:

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.

So with the preface that Dost is probably not precedential for use in a non child porn matter it does offer some insight as to just how loosely “Lascivious” has been in CP cases.

IMPORTANT: This applies to CP and not “protected free speech”. But we should question the protection or exclusion of any speech, however repugnant it may be but United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986) has been adopted in 5 Federal Circuits.

 

United States v. Knox

In Knox, a man who had previously been convicted of receiving child pornography through the mail ordered video tapes (by mail) of girls between the ages of ten and seventeen who, in the Court's words, "were dancing or gyrating in a fashion not natural for their age." The girls wore bikini bathing suits, leotards, or underwear - none of the girls in the videos was nude. The videos were set to music, and it appeared that someone off-camera was directing the girls. The photographer videotaped the girls dancing, and zoomed in on each girl's pubic area for an extended period of time. Knox was prosecuted under United States Child Pornography laws.

Legal counsel for Knox argued that "lascivious exhibition of the genitals or pubic area" meant that the girls had to be nude - wearing clothing meant that that genitals and pubic area were clearly not exhibited. The Court disagreed and held that there was no nudity requirement in the statute: "the statutory term "lascivious exhibition of the genitals or pubic area," as used in 18 U.S.C. § 2256(2)(E), does not contain any requirement that the child subject's genitals or pubic area be fully or partially exposed or discernible through his or her opaque clothing."

The Dost court set out factors for determining whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area" under the Child Protection Act. The court wrote that the trier of fact should look to the following factors, among others, that may be relevant:

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.

Nudity, is NOT a factor in Knox, but lewd and lascivious images involving a minor. (A jury decides now what is "lewd and lascivious" in the verdict, but this gives lots of room for overzealous District Attorneys to bring these cases to court.)