In “Problems with Porn Law,” writer Rick Lee profiles a grandmother who was charged with child pornography after taking post-bathtime pictures that she believed were cute. While the charges were later dismissed, a question remained: How do you know what is considered child pornography? As the article indicates, what is considered child pornography is a subjective decision often left to the prosecutor. What may appear to be an innocent bathtime photo to one is offensive and inappropriate to others.
Writer Rick Lee included the standards set forth by the 10th Circuit in United States v. Jacob Dost to illustrate what material may be considered child pornography:
1. Whether the focal point of the image is on the child’s genitalia or pubic area;
2. Whether the setting is sexually suggestive – a place or pose generally associated with sexual activity;
3. Whether the child is depicted in a pose or attire that is not age appropriate;
4. Whether the child is fully or partially clothed or nude;
5. Whether the image suggests a coyness or a willingness to engage in sexual activity;
6. Whether the image is intended or designed to elicit sexual response in the viewer.
The circuit court conceded the list is not exhaustive, as other factors may be relevant in other cases.
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