Nude photos of a minor in her bathroom amount to images of sexually explicit conduct under the child pornography statute

In United States v Holmes the defendant appealed his conviction for production of child pornography and possession of child pornography in violation of 18 U.S.C. 2251(a) and 2252(a) (4)(B). Holmes was charged with surreptitiously videotaping his teenage stepdaughter performing her daily bathroom routine over a period of approximately five months and of being in possession of the videos and images of her in the nude. Holmes had installed concealed cameras in the stepdaughter’s bathroom and in the videos discovered on his computer the girl is seen completely naked. Plainly visible in those videos was her nude pubic area. Holmes also created a twenty-six screen captures from certain sections of the videos depicting close-up views of her pubic area. After trial, Holmes was found guilty and he appealed.
Under the statutes a defendant commits the crime of production of child pornography when he uses, persuades, entices or coerces a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct. The crime of possession of child pornography involves the knowing possession of a visual depiction that involves a minor engaging in sexually explicit conduct. The pornography statutory definition of sexually explicit conduct that applies here is the “lascivious exhibition of the genitals or pubic area of any person.”

The issue in this case is whether this statutory phrase may include depictions of otherwise innocent conduct by a minor which are surreptitiously taken by an alleged producer and made lascivious based upon the actions of the producer and not the child. The appellate court defines “lascivious exhibition” as one that “excites sexual desires or is salacious” and noted that what constitutes lascivious exhibition “is not concrete and for that reason it is necessary to determine the potentially lascivious nature with respect to the actual depictions themselves.” Holmes’ position was that the images depict mere nudity making him a voyeur at most and do not depict a lascivious exhibition of the genitals or pubic area. Argued that the secret recordings, even the ones showing her fully visible pubic area, do not depict the girl engaging in any sexually explicit conduct while she was being videoed, instead the images just show her in her bathroom performing normal everyday activities.

The appellate court disagreed and found the evidence supports a violation of the federal criminal offense. The photos and images are a lascivious exhibition and amount to sexually related conduct. The court agreed with three other circuit courts which hold that a lascivious exhibition may be created by an individual who surreptitiously videos or photographs a minor and later captures or edits a depiction, even when the original depiction is one of an innocent child acting innocently. Viewing the evidence in a light most favorable to the government a reasonable jury could have found that Holm’s conduct – including placement of the cameras in the bathroom where his stepdaughter was most likely to be videoed while nude, his extensive focus on videoing and capturing images of her pubic area, the angle of the camera set up and his editing of the videos – was sufficient to create a lascivious exhibition of the genitals or pubic area.