Re, the point I was trying to make was that within the definitions of 18 USC 2256, what constitutes child pornography (CP) is very subjective. Reading cases over time shows that prosecutors have successively expanded the definitions of words beyond dictionary definitions to make them more inclusive. IMHO, that expansion also goes beyond the intent of the law.

Granted, a CP possession case rarely hinges on a single image or ones that are not of explicit sexual activity. Expanded definitions, e.g. of “production” or “sadistic”, are often used to intimidate the accused into taking a plea, or to justify a sentence enhancement. Prosecutors have argued that copying an image constitutes production of another image. Whether a particular jury would agree is irrelevant. A threat of more serious additional charges may be sufficient to induce a possession plea. The term sadistic now includes any penetration.

None of this is intended to justify or minimize CP possession, but to illustrate the fluidity and subjectivity in the law. Justice Stewart definitely hit that nail on the head.

Absolutely correct, JR. Pics of “possibly” adolescents CAN and do make for CP convictions despite what other people think or believe. Those folks need to be educated on this subject.

If we really want to get technical about pornography, just go to the beach and see all the ‘pornography’ on display there.

A ‘swimsuit picture’ is not just a swimsuit picture if it reveals the part(s) Ed C enumerates above. And if the subject is under 18, it is child pornography, regardless of whether they appear ‘possibly adolescent.’

Ed C cites multiple sources for the definition of pornography, but it is the statutory definition— 18 USC 2256(B)— that governs whether or not it is a Federal child pornography case.

Captain…..
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You are wrong. Dead Wrong. My husband is on there for swimsuit pictures considered too revealing and “possibly” adolescent. had to take a plea because we didn’t have the resources to keep fighting and take the risk of jail (leaving us without the income to keep our home). A lot of these cases are simply to increase conviction rates, get a detective a notch on his/her belt, and collect federal grant money. Why do you think someone who has visited disney once in their life is kept on the registry? Because the more people on it the more federal dollars granted.

Operationally, pornography is whatever a prosecutor can use to convince a jury that it is, or to induce a defendant to sign a plea. This ambiguity is illustrated by Justice Potter Stewart’s famous “I know it when I see it” comment.

18 USC 2256(B), defines, inter alia, “sexually explicit conduct” as “lascivious exhibition of the anus, genitals, or pubic area of any person.” It is the word “lascivious” that allows courts wiggle room to determine pornography. That term is definitely in the eye of the beholder.

If you want to go down the pornography definition rabbit hole, a good place to start is the Wikipedia article on the “Dost test.” The Dost list is merely a guideline and is neither definitive nor exhaustive. And yes, pornography can include a clothed minor.

You changed the subject to pictures of kids nude. That is more serious, and I am relieved that you are no longer claiming that it would be cp if they were clothed (or on a Nirvana album cover).

I realize that your husband made an agonizing decision to plead guilty to possession, and I question why law enforcement did not bother to investigate who uploaded and distributed the material. After all, being a wife and mother normally does not exempt someone from child pornography laws.

In the meantime, I thank you for your dedication and service as a paralegal.