Friday, August 28, 2009

New Limited Context Test for Lasciviousness

The Sixth Circuit issued three published criminal opinions this week, plus one quasi-criminal/quasi-civil case. However, other than the facts in a couple of them, only one of them, in my opinion, was particularly groundbreaking.

The Court's opinion in U.S. v. Brown, has the most interesting outcome and the widest impact. The issue was whether or not a district court in applying USSG S 2G2.1(d)(1) could find the lasciviousness of the defendant's photograph's of his step-grandchildren from evidence beyond the four corners of those photographs. Having already gone up and been remanded, the district court was charged with determining if the lascivious photographs contained more than one child, because the step-grandchildren were identical twins. In so determining, the district court looked to other evidence that was the basis of other child pornography charges to determine the defendant's sexual proclivities.

The question presented is whether or not extrensic evidence of other photographs helps determine if one of the United States v. Dost, 636 F.Supp. 828 (S.D. Calif. 1986) factors is present in photos where the 'laciviousness' is at issue. In assessing whether it was appropriate to consider outside evidence to determine the "intent" of the photographer in this context, the Sixth Circuit ruled that "[i]gnoring the contextual evidence contrues the statute too narrowly as it inevitably fails to capture behavior that is 'intended' to exploit children." The Sixth Circuit also noted that adherence to a strict 'four corners' test could harm wrongfully accused defendants because it would prevent them from proving the context of the images at issue through extrinsic evidence. However, the Court observed that 'if we frame the inquiry too broadly and place too much emphasis on the subjective intent of the photographer or viewer (in this case, the same person), a seemingly innocuous photograph might be considered lacivious based solely upon the subjective reaction of the person who is taking or viewing it."

Therefore, the Sixth Circuit formulated what it called a "limited context" test "that permits consideration of the context in which the images were taken, but limits the consideration of contextual evidence to the circumstance directly related to the taking of the images." The Sixth Circuit gives three factors to be considered under this "limited context" test:

(1) where, when, and under what circumstance the photographs were taken,
(2) the presence of other images of the same victim(s) taken at or around the same time, and
(3) any statements a defendant made about the images.

The Sixth Circuit does state that "we explicitly reject consideration of factors that do not relate directly to the taking of the images, such as past bad acts of the defendant, the defendant's possession of other pornography (pornography of another type or of other victims), and other generalized facts that would relate only to the general "unseemliness" of the defendant."

In applying this new test to the present case the Sixth Circuit found that the district court was correct in determining that the defendant took lascivious photographs of more than one minor. First, the Circuit Court found that all of the seventy photographic images depict the children nude, "with a general tendency to focus on the girls' genitals." The court finds that "the sheer number of photographs in wich the girls' genitals are prominently visible suggests that photographs were taken to elicit a sexual response in the viewer." Second, the court notes that the one clearly lascivious photograph "casts doubt upon any contention that the photographs were innocent family photographs." Third, the Court noted that the defendant placed seventeen of the photographs on a CD with other child porn downloaded by the defendant. Finally because many of the images focus on the girls genitals, it was doubtful they were innocent family photos.

The Sixth Circuit then went on to determine that the district court did not err in finding that the photographs depicted both girls. However, the Sixth Circuit found that it was error for the district court to consider the images of other child porn, but that this error harmless. Finally, the Sixth Circuit found the sentence to be substantively reasonable.

This "limited context" test is a new one formulated solely by the Sixth Circuit. This seems to be replacing the test that considers "whether a visual depiction is intended or designed to elicit a sexual response." Be aware that this will be the appropriate test for district court's to apply in sexual exploitation of minors cases.

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