A broader definition of CP?

In United States v. Blouin, ARMY 20101135 (A. Ct. Crim. App. 28 May 2014), the court has, in my view, taken a broader view of what qualifies as CP for the purpose of a guilty plea.  However, the court is not taking an unknown or unvisited trail.

Blouin was charged with possessing CP in violation of 18 U.S. Code Sec. 2256(8), to which at trial he plead guilty.

As is common in these type of cases, the prosecution threw up a whole bunch of alleged (173 to be exact) CP images, without really understanding what they were doing.  And they compounded this with offering 12 images as a “sample.”  This caused the military judge to reopen providency, because he found only three of the images were likely CP.

In determining whether the images were CP, the military judge evaluated them in light of the Dost factors and also in light of United States v. Knox, 32 F.3d 733 (3d Cir. 1994), vacated and remanded, Knox v. United States, — U.S. —-, 114 S.Ct. 375, 126 L.Ed.2d 325 (1993). .  See, Aneemarie J. Mazzone, United States v. Knox: Protecting Children from Sexual Exploitation Through the Federal CP Laws, 5 FORDHAM INTELLECTUAL PROP, MEDICA, & ENTERTAINMENT L. J. 167 (1994), for some analysis of Knox.

In Knox, the court  ruled that the federal statute contains no requirement that genitals be visible or discernible. The court ruled that non-nude visual depictions can qualify as lascivious exhibitions and that this construction does not render the statute unconstitutionally overbroad.

After giving further consideration to the language of the statute, its legislative history, the underlying rationale for the federal child pornography laws, and the brief of Solicitor General submitted on behalf of the United States, we hold that the statutory term “lascivious exhibition of the genitals or pubic area,” as used in 18 U.S.C. Sec. 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 statutory language is clear and contains no ambiguity. Therefore, the rule of lenity should not be applied to defeat the clear intent of Congress to prohibit the possession of child pornography to the maximum extent allowable under the Constitution.

Certainly the broadened definition of what can be CP opens up a wider array of images subject regulation.  In response to First Amendment and other concerns raised by Knox, the court opined:

Knox’s prediction that our interpretation of an exhibition will result in prosecutors leafing through family albums and church bulletins containing innocent pictures of fully clothed children and pressing charges is unfounded. The limiting principle in the statute is the requirement of lasciviousness.17 A visual depiction of a child subject’s genitals or pubic area, whether the child is clothed or naked, must be lascivious in order to be proscribed. Whether a depiction is lascivious is essentially an inquiry into whether or not the material meets the standard of lasciviousness as guided by the Dost factors. 

The ACCA notes that the Court of Appeals for the Armed Forces has implicitly adopted Knox.

 [W]e determine whether an image contains a “lascivious exhibition” by review of the totality of the circumstances, including consideration of the so-called Dost [United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)] factors. See United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006) (adopting the approach of the Third Circuit in Knox but not specifically referencing their holding relative to nudity).

Slip op. at 6.