I. Introduction

Child pornography is an ill-defined area of law. Abstract terms like “sexually explicit,”[1] “lewd,” “obscene,” and “lascivious,” have been used regularly in its definition, and yet remain unclear in their meaning and how, if at all, they differ.[2] These plentiful but ambiguous terms cause confusion as juries struggle to draw the line between criminal and noncriminal imagery.[3] While some sexually explicit depictions are clearly unlawful, it is less clear how the law treats other behavior, such as the perverted use of innocent childhood photos.[4]

The Protection of Children Against Sexual Exploitation Act of 1977 charges “[a]ny person who [causes] . . . any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct” with a crime.[5] The Child Protection Act of 1984 (the Act) went on to define “sexually explicit conduct” by setting out subcategories of actual or simulated conduct, the last of which is “lascivious exhibition of the anus, genitals, or pubic area of any person.”[6] Congress did not provide a definition for the term “lascivious” as used in the Act, nor provide any other such guidance, leaving the ultimate issue of interpretation for the courts.[7]

In response, ten federal circuits have adopted the Dost factor test,[8] a set of factors guiding jurors in determining if a depiction constitutes “lascivious exhibition.”[9] The few remaining circuits instead rely on “common sense”[10] or “‘hard core’ sexual conduct.”[11] While these factors have been criticized for their inconsistency,[12] their flexibility is also their strength, directing jurors without being “mandatory, formulaic or exclusive.”[13] Adoption by the Supreme Court can enable this test to be more consistently and effectively applied.

This Comment explores the development of the Dost factors, the critiques levied against it, and the practical solutions that point to its improvement, as opposed to its replacement. First, Part II will discuss the origins, adoptions, and rejections of Dost in the case law to showcase how the test is applied and what the current alternatives propose. Part III will dissect common critiques of Dost, which focus on the test’s content and intent-focused factors. Generally, these criticisms center around narrowness, overbreadth, and constitutionality. Finally, Part IV will present the practical and theoretical justifications for Dost’s continued use and present opportunities for improvement and standardization.

II. The History of the Dost Factors

A. Origins of Dost

The Dost factors first appeared in the Southern District of California, in a case where defendants took images of two girls, aged fourteen and ten, in compromising nude positions.[14] The court determined that the issue turned on if the images contained a “lascivious exhibition of the genitals or pubic area,” because the images could not meet any other category of “sexually explicit conduct” as defined under the Act.[15]

The court considered Congress’s replacement of the term “lewd” with “lascivious,” to be instructive in how to interpret this standard.[16] The term “[l]ewd [had] in the past been equated with ‘obscene’; this change [was] thus intended to make it clear that an exhibition of a child’s genitals does not have to meet the obscenity standard to be unlawful.”[17] The obscenity standard is a legal doctrine that defines unprotected “obscene material” under the First Amendment.[18] However, child pornography “is outside the protection of the [F]irst [A]mendment, regardless of whether it is obscene,” indicating that the change in language was made to reflect this separation between materials that may or may not be protected, depending on their obscenity, and child pornography, which can never be protected under the guise of free speech.[19] This distinction and change in the statutory language also reflected the larger policy shift towards strengthening protections for children, and thus the court determined that not only was child pornography categorically different, but also that “Congress intended that the standard be lower than that for obscenity.”[20]

To decipher this new statutory language, the district court did not “presume to create a comprehensive definition of either lewdness or lasciviousness” and recognized that this was “a definition with which legal scholars have struggled for years.”[21] Recognizing that the proper analysis would occur on a case-by-case basis, the court enumerated six principles for guidance.[22] Importantly, no one of these factors were considered determinative, and the jury was left free to weigh the factors, if present, as they deemed fit, instead focusing their decision on the “overall content of the visual depiction.”[23] The factors were as follows:

1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.[24]

Applied to the facts in the Dost case, the factors indicated that the images of the two children included a lascivious exhibition of their genitals, and thus justified convictions on the child pornography charges against the defendants.[25] The photographs of the fourteen-year-old child showed her in a reclined position on “draped material, resembling a bed,” with her legs open and arms behind her head, exposing her breasts and genitals.[26] Most of the photographs placed her pubic area in the foreground, making it a focal point of the image, and some showed the subject staring directly into the camera, head tilted.[27] These aspects of the image suggested a willingness to engage in sexual activity, which, combined with poses that could only be defined as sexual, “not the way a child or adult ordinarily sits or reclines,” led to the conclusion that these exhibitions were lascivious.[28]

While the image of the ten-year-old child was not as sexually suggestive, the same conclusion was reached.[29] The child was depicted entirely nude and with her pubic area completely exposed, lying on the beach.[30] She had body painting on her chest and was positioned in an excessively extended manner.[31] While the only factor that indicated a willingness to engage in sexual activity was the child’s particular pose, not any sort of expression on the child’s face, the pose was so unnatural that it suggested she was coached, as no child, especially in the nude, would ordinarily assume such a revealing position.[32] Paired with the focus on the child’s genitals, the court found that the image also constituted a lascivious exhibition.[33]

B. Recent Adoptions of Dost

Jumping from the test’s first adoption to its latest, the Dost factors were recently adopted by the Fourth Circuit in United States v. Sanders.[34] On appeal, the defendant contended that the jury instruction was erroneous because it incorporated the Dost factors, which “invited the jury to convict based on nothing more than simple nudity” or on “a finding that the material was designed to elicit a sexual response in the viewer.”[35] As such, this criticism focused on the fourth and sixth Dost factors, which inquire into the child’s level of dress and the intended sexual response in the viewer, respectively.[36] Sanders’s proposed jury instruction instead defined lascivious exhibition of the genitals as a “showing [of] a minor engaged in ‘hard core’ sexual conduct,”[37] the standard utilized in the D.C. Circuit.[38]

The Fourth Circuit rejected the appellant’s argument and upheld the jury instruction, siding with the nine[39] other circuit courts that have adopted or endorsed the factors since their inception.[40] In doing so, it acknowledged that a conviction based only on simple nudity or “because the defendant subjectively found the visual depictions arousing” would be erroneous.[41] However, this was not the effect of the jury instruction.[42] Instead, the instruction permitted the jury to consider the extent of nudity and contemplate if it was the intent or design of the creator to elicit a sexual response, not if the viewer was subjectively aroused.[43] Further, any confusion that nudity or sexual response was a requirement for conviction was clarified by the comprehensive nature of the instruction, which emphasized that the Dost factors were to be used as guidance, and did not purport to define lascivious exhibition nor present an exhaustive list of elements that must be present.[44] Jurors were told they were free to weigh the factors that may be present as they see fit and were discouraged from relying too heavily on any single factor.[45] Overall, the instruction properly informed the jury that the Dost factors “are not mandatory, formulaic or exclusive.”[46] The Fourth Circuit concluded that when used correctly, the Dost factors provided helpful reference points for unfamiliar jurors in understanding the ambiguous term “lascivious exhibition.”[47]

In its opinion, the Fourth Circuit also reaffirmed its rejection of the D.C. Circuit’s understanding of lascivious exhibition, which requires “a visual depiction ‘showing a minor engaged in “hard core” sexual conduct.’”[48] The hard core sexual conduct standard was disclaimed in the Fourth Circuit’s earlier decision in United States v. Courtade, where a stepfather tricked a minor into bringing a waterproof camera into the shower with her by asking her to “test” it for him.[49] This video footage did not display any inherently sexual conduct, only the girl taking her normal shower, but the court still found that it was lascivious because it was created to “attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer.”[50] This holding was diametrically opposed to the hard core sexual conduct instruction the defendant argued for, and thus the court found it was bound by precedent.[51]

C. Rejections of Dost

The D.C. Circuit case referenced in the Sanders opinion provides an interesting insight into an alternative standard for lascivious exhibition.[52] In United States v. Hillie, the D.C. Circuit finds that “the Supreme Court has provided guidance as to how to construe the same or similar phrasing,” and relies heavily on this jurisprudence and the principle of noscitur a sociis to conclude that the hard core sexual conduct standard is required.[53] Specifically, the term “lewd exhibition of the genitals” had been determined to mean “‘hard core’ sexual conduct” through a string of Supreme Court cases that referenced obscene materials that were not protected under the First Amendment and, later, child pornography that similarly was not protected.[54] The X-Citement case addressed the change in statutory language from lewd to lascivious, where the Supreme Court found that the amendment reflected the desire to separate the lascivious exhibition analysis from general obscenity.[55] However, the D.C. Circuit argued that this broader scope did not change the underlying meaning of the phrase, citing the Supreme Court’s adoption of the lower court’s reasoning for denying vagueness and overbreadth constitutional challenges to the Act, ultimately concluding that the term “lascivious” was not significantly different from “lewd.”[56] The D.C. Circuit reasoned that in doing so, the Supreme Court “expressly engrafted the ‘hard core’ characterization of the prohibited ‘lascivious exhibition of the genitals’ . . . onto the construction of the federal child pornography statute.”[57]

The court also accepted appellant’s argument that under the canon of noscitur a sociis,[58] the meaning of lascivious exhibition must be on par with the other four categories of sexually explicit conduct: “sexual intercourse,” “bestiality,” “masturbation,” and “sadistic or masochistic abuse.”[59] As such, lascivious exhibition must also entail the same connotation of a sexual act as these other terms.[60]

The D.C. Circuit not only addressed the reasons why they thought the appropriate standard required hard core, sexually explicit conduct but also why they rejected the application of the Dost factors, enumerating three primary reasons for finding Dost unpersuasive.[61] First, the court thought the Dost opinion “misinterpreted a single floor statement of a single Senator . . . to conclude that when Congress amended the definition of ‘sexually explicit conduct’ . . . Congress’s intent ‘was to broaden the scope of the existing “kiddie porn” laws.’”[62] As discussed in its analysis of precedent, the court found the terms “lascivious” and “lewd” did not hold different meanings in the Supreme Court’s eye.[63] Second, because of this misinterpretation of congressional intent, Dost had completely disregarded the holdings of Miller, which put forth the hard core sexual conduct standard.[64] The court reasoned that even if the precedential value of this case was unclear at the time of the Dost decision, the following line of case law has now reiterated the hard core standard.[65] Finally, the Dost factors erroneously consider the effect on the viewer by asking if the visual depiction is intended or designed to elicit a sexual response.[66] Again referencing case law, the court reasoned that this logic has been rejected by the Supreme Court when it held that the subjective belief of the defendant that the image is lascivious does not make it so, and does not trigger the application of the Act.[67] Further, the statutory term “lascivious exhibition” does not describe the image or video of the minor itself, but rather the minor’s conduct within that depiction, as the criminal act is producing or possessing a visual depiction of a minor engaged in “sexually explicit conduct,” which is in part defined by the lascivious exhibition of the genital or pubic area.[68] Thus, the sexual implications that the depiction may convey to the viewer should not be considered by the jury, only the sexually explicit conduct portrayed in the image or video.[69] While the court noted that it rejects the Dost factors as a definition of “lascivious exhibition,” it acknowledged that evidence that concerns the matters addressed in the factors may still be probative and admissible at trial.[70] Only the use of the Dost factors as definitional or as regular jury instruction is precluded.[71]

Besides the D.C. Circuit, the only other court that has not adopted the Dost factors is the Seventh Circuit.[72] Unlike its sister court, however, the Seventh Circuit does not take a hard stance against the Dost factors.[73] To the contrary, it has even held that including the Dost factors in a jury instruction is not plain error.[74] Instead, the court simply found that “[t]he jury’s common understanding is enough to distinguish artistic and other licit photos of children from child pornography as that term is defined in the statutory text.”[75]

This approach was solidified in United States v. Price, where an appellant challenged the jury instruction given in the trial court due to its incorporation of the Dost factors.[76] Even though prior cases had already established that giving a Dost instruction was not plain error, the court still took the opportunity to examine the appellant’s arguments against the instruction, shedding light on their continued holding that Dost was not erroneous, even if discouraged.[77] To begin, the appellant argued that Dost is generally impermissible because it limits the context of the images.[78] However, the effect of this limitation, if present, was beside the point, because the jury had been expressly instructed to consider the context and setting when making its decision.[79]

The following arguments made by the appellant were focused on two individual elements of the Dost factors, “whether the minor is fully or partially clothed, or nude” and “whether the depiction appears to have been designed to elicit a sexual response in the viewer.”[80] One might notice these are the same two factors that were targeted in Sanders and, as discussed in the following section,[81] are commonly a source of criticism and concern surrounding the Dost factors.[82] First, like in Sanders, the appellant in Price argued that the nudity factor would allow a jury to find lasciviousness based purely on the level of undress of the subject.[83] Again, the court found the accompanying instruction directed the jury’s attention to the context and setting of the photo, clarifying to jurors that nudity alone would not make an image lascivious.[84] As to the second point, that by considering the intent to elicit a sexual response the jury was encouraged to engage in “improper thought policing,” the court pointed to its earlier holding that “intent and motive of the photographer can be a relevant consideration.”[85] Although its overall relevance will depend on the facts of that particular case, the evidence of motive and intent can help give the very context that was emphasized in the jury instruction, which was the case here.[86]

While defending its position that the Dost instruction was not erroneous, the court still emphasized that the Dost factors had not been adopted and discouraged their regular use.[87] The court noted dissent among other courts surrounding the factors, explaining that the criticism came from both sides—both those who found them too defendant-friendly and those who found them to impermissibly expand the scope of the statute.[88] Instead of taking either side of this debate, the Seventh Circuit instead found that the factors would not actually assist the jury in making their determination, as it is already clear.[89] Overall, the circuit found “[t]he term ‘lascivious’ is not vague.”[90] Instead of guiding jurors, the Dost factors would only lead them “deep into the weeds,” considering elements like nudity, sexual coyness, or if a particular pose conveys a willingness to engage in sexual activity.[91] As such, the factors, if to be used at all, were better suited to the closing arguments made by counsel instead of the jury instruction.[92]

Overall, the history of the Dost factors demonstrates their increased acceptance and, conversely, ongoing debate surrounding their use. Since its inception, Dost has grown more commonly used as a set of instructions to help jurors decipher the term “lascivious” when considering if the image presented before them constitutes child pornography.[93] Even among the two remaining courts that do not endorse Dost, only one continues to hold that their inclusion in a jury instruction is plainly erroneous.[94] Nonetheless, these outliers represent an important barrier to a uniform application of federal child pornography law, a major concern of scholars, discussed in the following section.[95]

III. The Critiques: Inconsistency Impairs Efficacy

Even though a majority of federal circuit courts have adopted the Dost factors, there remains significant criticism of the test among academics and practitioners.[96] As will be discussed below, these criticisms view the Dost test as a vague solution to an already vague question: what does it mean to be “lascivious?” While, unlike obscenity law, there is no First Amendment protection for child pornography, critics argue that the Dost factors both under- and over-capture the behavior we seek to criminalize, leading to issues of criminal and constitutional overbreadth.[97] On a continuum that spans from explicit child abuse to commonplace childhood bathtub photos,[98] where does the law draw the line? And, importantly, are we all drawing the same line?

A. The Dost Factors Do Little To Provide Clarity in an Already Vague Area of Law

The vagueness critiques against the Act are levied at every level: the overall statutory language, the specific use of the term “lascivious,” and the application of the Dost factors.[99] When interpreting the law at these various levels, many scholars emphasize the importance of centering child pornography law’s true purpose—to protect children from sexual harm.[100] The protection of children is what justifies defying typical First Amendment jurisprudence and criminalizing private speech, which is typically protected.[101] This purpose is also important when considering the outer bounds of the statute’s coverage; any conduct not contributing to these harms is arguably outside of the scope of the statute, and criminalizing such behavior would be overbroad.[102]

For example, some scholars question whether the statutory language “any visual depiction . . . of sexually explicit conduct involving a minor” allows a depiction of a minor in a state of simple nudity to “ever truly constitute sexual explicitness.”[103] Others looking directly to the term “lascivious” have highlighted that the term could describe “the child, the child’s act, the filmmaker’s intent, or even the viewer’s reaction.”[104] Others have argued that the Dost factors themselves are difficult to interpret and apply appropriately, pointing to terms like “sexually suggestive,” “sexual coyness,” or “designed to elicit a sexual response in the viewer.”[105]

As a result, some explicit depictions of children may be interpreted differently depending on the context and the viewer, even if the Dost factors are being applied. James Bristol considers how among two different movie scenes, both involving some degree of child nudity, one could be held as lascivious and the other valuable and discerning, all dependent on a reasonable person’s application of Dost.[106] This conclusion leads to Bristol’s return to an ever-present question in the law: “[W]ho is the reasonable person?”[107] These layers of interpretation in child pornography law are muddied by our varying cultural, political, religious, educational, and social backgrounds.[108] To Bristol, “images of children can never be clear or precise because interpretation is not the same for everyone.”[109]

B. The Dost Factors Create Inverse Issues of Narrowness and Overbreadth

1. Focus on Content

Several of the Dost factors look for certain circumstances or properties in the content of a depiction of a child. Some considerations include evaluating “whether the focal point . . . is on the child’s genitalia or pubic area,” “whether the setting of the visual depiction is sexually suggestive,” “whether the child is depicted in an unnatural pose or in inappropriate attire,” or “whether the child is fully or partially clothed, or nude.”[110] These factors all look for a specific attribute of the visual depiction in question. Many have argued that a strict, four-cornered approach emphasizing the content of an image or video can divert focus from a real, underlying criminal intent, leading to an under-inclusive statutory interpretation.[111]

Critics also argue that focus on content is generally ignorant of the larger context and leads to inconsistent outcomes. For example, Carissa Byrne Hessick juxtaposes the Dost factors and her own self-developed test by highlighting the first factor—the focal point of the image on the minor’s genitals.[112] Here, she argues that by applying the first Dost factor, two equally pernicious videos of nude children could be evaluated differently depending on elements such as zooming in or freeze-framing on the child’s genital area.[113] Essentially, the outcome of the case could rest on camerawork, ignoring the general context in which the image or video was taken. Furthermore, the focal point of an image is not immutable; it can be edited and manipulated after the picture is taken.[114] Thus, photos that were taken in a seemingly innocuous context may thereafter become child pornography in retrospect only due to their editing, which ignores the underlying concerns about harm at the heart of the Act.[115]

Another argument often made by practitioners against the use of the Dost factors is that the factors misguide the jurors into believing they can convict based on “nothing more than simple nudity.”[116] However, this argument appears relatively unsuccessful, because courts recognize that the inclusion of the nudity factor in the instruction does not indicate to jurors that they can convict based on mere nudity, but rather indicates that jurors can consider “the extent of nudity.”[117] The term “lascivious” indicates that the depictions must consist of “more than mere nudity” to be encompassed under the Act.[118]

2. Focus on Intent

A similar argument exists for the Dost factors that focus on the creator’s intent. The specific factor that is the center of intent-focused discourse is, of course, the sixth, which asks the jury to consider “whether the visual depiction is intended or designed to elicit a sexual response in the viewer.”[119] Courts interpret this factor in two main ways—either including or excluding the subjective thoughts and intent of the maker.[120] While there are objective interpretations of the creator’s “intent” or “design” which view intent as a signal of understanding of the sexual or wrongful nature of their actions, many critics find that the factor’s subjective interpretation is too far removed from any actual exploitation of children.[121] While it may be morally reprehensible to try to elicit a sexual response with any given depiction of a minor, such intent does not change the content of the image, nor the scope of the statute, leading to an overly broad application of the law.[122]

Under this framework that emphasizes the subjective experience of the producer, the sixth factor leads to an over-expansive view of what “lascivious” means. For example, a man was convicted under the Act for photographing his neighbor’s minor daughters in the bath after the court found that four of the six Dost factors were present: the focal point of the video was on a child’s breasts and pubic area, the children were instructed to pose in specific, unnatural ways, the children were nude, and the image was designed to elicit a sexual response.[123] However, this intent to elicit a sexual response was supported by evidence that the creator would view the video immediately before having sex with his girlfriend.[124] Reactions to this conviction contend that such intent on the part of the creator is not what imparts “lasciviousness” onto the photo, as it is viewers, not producers, who “tender the meaning” of a photograph.[125] In other words, just because the defendant found the image arousing doesn’t make it child pornography in the eyes of a typical viewer, or under the law.

Amy Adler argued that the language of the statute itself represents “a threshold question . . . does ‘lascivious’ describe the child depicted, the photographer, or the viewer?”[126] Adler found that the case law pointed towards the latter two; that the application of Dost required the jury to turn their focus on the intended effect on the photographer and his intended audience, other pedophiles.[127] However, asking the jury to adopt the lens of a pedophile is not only a difficult and upsetting request, but it is a departure from other areas of the law.[128] Furthermore, Adler explains that this lens contributes to the problem of overbreadth because “pedophiles like so many pictures of children.”[129] Pedophiles often turn to, and even prefer, innocent depictions of children. Adler cites pedophiles’ enjoyment of pictures showing children playing in swimming pools or playgrounds, advertisements for girls’ ballet costumes, or even the children’s underwear section of the Sears catalog.[130] The law’s response has been to try to stretch and capture this deviant desire, which, in Adler’s opinion, is an impossible goal that not only threatens protected, ordinary images of children but is also removed from the ultimate goal of child pornography jurisprudence: to protect children from harm.[131]

Furthermore, the adoption of the pedophile’s lens leads lawyers, judges, and juries to contribute to the very sexualization of children they seek to condemn.[132] There are many psychological and social theories that connect the concept of prohibition and desire, arguing that it can be difficult to determine whether the desire necessitates the prohibition or the prohibition produces the desire.[133] At least some theorists contend the latter is true, or at least that prohibition could heighten an existing desire.[134] Therefore, at least under this theory, the increased attention and anxiety surrounding child sexual abuse has contributed to its rise by making it more alluring to deviants.[135]

Robert Danay explains that applying Dost “necessitates a drawn out analysis of materials that most people would not, in the past, have considered obscene or even sexual in nature.”[136] In their analysis, jurors must look closely for signs of sexual intent in innocuous images of children, further perpetuating the dangerous notion that children are sexual.[137] In fact, given that pedophiles may prefer innocent depictions of children, courts will continue to look for pedophilic material in any number of children’s shows, movies, or content—a trend which “threatens to publicly sexualize all images of children” no matter the content or context.[138] If the pedophilic gaze alone can render an image lascivious, “[t]he pedophile becomes a nightmarish sort of King Midas: everything he touches turns to smut.”[139]

It is notable that this trend can be observed more generally throughout our culture, not just in court. For example, the public infatuation with the image and infamous murder of child beauty queen JonBenét Ramsey led a CBS news anchor to denounce the media for publishing images that, according to the anchor, bordered on child pornography.[140] This troubling trend has led some to question the efficacy of child pornography laws; even if the laws successfully target the most egregious violations, they also may have unintentionally accelerated a larger trend of child sexualization.[141]

Therefore, the very same authors often worry about both under- and over-inclusion under the language of the Act.[142] If the courts focus too much on the content of the image, they risk ignoring important and relevant context in their analysis.[143] If the courts focus too heavily on the subjective intent of a creator, they run the risk of convictions based on internal thoughts and desires, not actions criminalized under the law.[144] Not only does this promote the pedophile’s view of sexualizing children, but it endangers the constitutional right to free speech.[145]

C. The Constitutional Question Surrounding Dost

Not only is there a statutory overbreadth issue at play in the discussion of child pornography law but also a First Amendment overbreadth issue. Amy Adler argues that the expansion of child pornography law, caused in part by its interpretation under Dost, poses a threat to protected speech due to its special treatment under First Amendment jurisprudence.[146] As stated above, child pornography is treated differently from obscenity law—which deals with speech that is more generally lewd or offensive—under the First Amendment.[147] This difference is justified by the inherent harm done to children via the production and possession of child pornography.[148] As Adler puts it, “obscenity law is based on the worthlessness of certain expression, whereas child pornography law excludes speech because of the grievous crime from which it stems.”[149] Obscene speech may be protected under the First Amendment under certain circumstances, including when the work has “serious literary, artistic, political, or scientific value.”[150] No such exception exists for child pornography.[151]

Adler acknowledges arguments that support the no-exceptions approach to child pornography law.[152] If the law is going to err, as it inevitably will, arguably it is better that it errs on the side of protecting children over protecting speech.[153] However, this margin of error might have been underestimated by a Supreme Court that upheld the no-exception rule, as the law begins to come after images of clothed children, family photos, and artists.[154] For example, James Bristol contends that “[n]ot all child nudity is the same” and warns courts that they will have to address the question of valid, artistic child nudity as filmmakers continue to push the legal limits.[155] Again, forgoing some forms of artistic expression may very well be a policy decision that we are comfortable making, but it is important to understand the true cost of that policy decision by acknowledging the growing scope of child pornography law.[156] While this First Amendment question deals with child pornography law more generally than the Dost factors alone, it provides important context to the larger conversation about vagueness and overbreadth that surrounds Dost’s adoption or rejection.

IV. Summing It Up: In Defense of Dost

As noted above, the critiques of the Dost factors present parallel, mirror images. The concerns center around both under- and over-inclusion under the Child Protection Act and the Constitution.[157] Both concerns address one central issue—uneven application. The general fear is that such vague and subjective direction will only confuse jurors and their findings, leading to an inappropriately variable application of the law. However, a notable retort to these concerns, often found in case law, lies in the procedural manner in how the factors are presented to the jury: as a non-definitional, non-exhaustive guide.[158] As such, this list of elements is both informative for the average lay juror and largely unopposed by a strong alternative, suggesting the Dost factors remain an imperfect but valuable test.[159]

To start, the consensus is clear—“lascivious” is an ambiguous term that requires direction, even if it defies definition.[160] Only a single circuit court continues to hold that the term “lascivious” is unambiguous.[161] Every other sister circuit operates under the assumption that further instruction is required to assist the jury in applying this term, and ultimately the law.[162] While there are many criticisms focused on the ambiguity of the Dost factors,[163] proponents highlight that the test is not offered as a definition.[164] In fact, many jury instructions specifically emphasize the non-definitional nature of the Dost factors.[165] Instead, the factors are offered to color the jurors’ understanding of the term lascivious.[166] This is understandable; throughout the preparation of this Comment—researching, drafting, and revising—this Author was asked by nearly everyone engaged what “lascivious” means. If understood simply as guidance, the Dost factors can provide structure and consistency to each juror’s characterization of “lasciviousness.”[167]

The same applies to the aforementioned concerns about the content-focused factors turning into “boxes to tick,” which may lead to verdicts based on “mere nudity” or some other factor, without proper consideration of the entire circumstance.[168] Jury instructions often include warnings to jurors that the factors are non-exhaustive and non-determinative, meaning that the jurors don’t need to find a certain number of factors, or any, to convict.[169] Jurors are also instructed that they may weigh any of the factors as they deem fit, and may consider other non-enumerated concerns they find appropriate.[170] Some courts have gone as far as to expand the list of factors for consideration beyond Dost.[171] These instructions mitigate the risk that jurors will treat the Dost factors as a list of requirements, or that the outcome of a case will come down to aspects of the image, such as clever editing.

There are also practical considerations that indicate the Dost factor test is and should continue to be the preeminent test for lasciviousness under federal law. The Second Circuit put it most succinctly when it stated that the Dost factors serve a useful purpose, even if “[t]hey may do so imperfectly, . . . they have not been much improved upon.”[172] There is no strong alternative available to courts to illuminate the foggy meaning of the term “lascivious” to jurors. There are a handful of proposed tests by scholars[173] and even fewer alternative tests currently used by circuit courts.[174] In the abstract, “the Dost factors are imperfect and vulnerable to criticism,” but practically they meet a demand for “neutral references and considerations to avoid decisions based on individual values or the revulsion potentially raised in a child pornography prosecution.”[175] While some factors may focus on content and others on intent, a jury instruction that emphasizes that no one of these factors is controlling and is to be weighed on a case-by-case basis results in a balance that, ideally, results in justice for the children victimized. Even if the practical application of Dost comes up short of this ideal, that does not deprive it of all its value.

Looking to the serious concerns about how our child pornography laws escalate panic, anxiety, and even desire in the public’s perception of child sexual abuse, one could argue that the Dost factors provide some standardization and composure to the analysis. Crimes against children incite emotional, passionate condemnation from nearly every sector of society.[176] However, this passion may blind people’s ability to discuss the issue rationally, given its sensitive nature.[177] While the Dost factors are flexible and open to some degree of interpretation, the presentation of specific, material considerations may combat jurors’ heated, personal emotions by “impos[ing] useful discipline on the jury’s deliberations.”[178]

Finally, what seems to be the primary concern of critics—that there is an overall uneven application of the law—could be remedied, at least in part, by the Supreme Court’s adoption of the test. The Supreme Court, at this time, has not granted certiorari to any case where the Dost factors are at issue, despite multiple petitions.[179] While a vast majority of the courts have adopted Dost, there are admittedly variations in their use and application of the factors. For example, the Sixth Circuit acknowledged the differing interpretations of whether “a visual depiction is intended or designed to elicit a sexual response in the viewer” in United States v. Brown.[180] The court there held that while considering context is important, a focus on intent can also lead to a slippery slope that ends in “lasciviousness” depending entirely on “the subjective reaction of the person” on the other end of the camera.[181] As such, the court applies a “limited context” version of Dost “that permits consideration of the context in which the images were taken, but limits the consideration of contextual evidence to the circumstances directly related to the taking of the images.”[182] As mentioned above, many circuit courts, including the Sixth, have created additional factors for consideration beyond the Dost six.[183] The Third Circuit even requires that “more than one” of the Dost factors is present for the jury to convict.[184] The purpose behind highlighting these particular decisions is to show the varying adoptions and applications of Dost, particularly on the points of criticism and debate, even among the courts that utilize the test. A Supreme Court decision that provides direction on some of these disputed points would create a more robust and evenly applied doctrine, alleviating the concerns of critics without reinventing the wheel.

V. Conclusion

In conclusion, child pornography law is riddled with ambiguities, contradictions, and shades of gray. However, the preeminent test used by courts in deciphering the term “lascivious,” as used in federal child pornography law, is a helpful, if imperfect, tool for jurors. There are a multitude of criticisms that the Dost factors present twin issues of vagueness and overbreadth, which may contribute to larger constitutional concerns within child pornography law. However, these critiques are not universally accepted, and in practice courts have found that, with proper jury instruction, the test has proved useful, resulting in its consistent adoption since its inception in 1986. As such, the Dost factors will likely continue to be the dominant test for determining “lasciviousness” under the Child Protection Act and can be further strengthened and standardized by instruction in a Supreme Court decision.

Katherine Szymanski

  1. 18 U.S.C. § 2251(a).

  2. Lara N. Strayer, Ambiguous Laws Do Little to Erase "Kiddie Porn," 5 Temp. Pol. & C.R.L. Rev. 169, 175–77 (1996).

  3. See United States v. Sanders, 107 F.4th 234, 262 (4th Cir. 2024).

  4. Amy Adler, Inverting the First Amendment, 149 U. Pa. L. Rev. 921, 943–44 (2001).

  5. Protection of Children Against Sexual Exploitation Act of 1977, 18 U.S.C. § 2251 (emphasis added).

  6. Strayer, supra note 2, at 170; 18 U.S.C. § 2256(2)(A)(v) (emphasis added).

  7. Strayer, supra note 2, at 170–71.

  8. United States v. Dost, 636 F. Supp. 828, 828 (S.D. Cal. 1986), aff’d sub nom., United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), and aff’d, 813 F.2d 1231 (9th Cir. 1987).

  9. See infra notes 39–44 and accompanying text; 18 U.S.C. § 2256(2)(A)(v).

  10. United States v. Price, 775 F.3d 828, 840 (7th Cir. 2014).

  11. United States v. Hillie, 39 F.4th 674, 681 (D.C. Cir. 2022) (quoting Miller v. California, 413 U.S. 15, 27 (1973)).

  12. Kieran Dowling, A Call to Rewrite America’s Child Pornography Test: The Dost Factor Test, 24 Seton Hall J. Sports & Ent. L. 151, 166–67 (2014).

  13. United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008).

  14. United States v. Dost, 636 F. Supp. 828, 830 (S.D. Cal. 1986), aff’d sub nom., United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), and aff’d, 813 F.2d 1231 (9th Cir. 1987).

  15. Id. (quoting 18 U.S.C. § 2255(2)(E)).

  16. Id. at 831.

  17. Id. (quoting 130 Cong. Rec. S3510–11 (daily ed. Mar. 30, 1984) (statement of Rep. Arlen Specter)).

  18. Miller v. California, 413 U.S. 15, 23–24 (1973).

  19. Dost, 636 F. Supp. at 831; New York v. Ferber, 458 U.S. 747, 764–65 (1982).

  20. Dost, 636 F. Supp. at 831–32 (emphasis added).

  21. Id. at 832.

  22. Id.

  23. Id.

  24. Id.

  25. Id. at 833.

  26. Id.

  27. Id.

  28. Id.

  29. Id.

  30. Id.

  31. Id.

  32. Id.

  33. Id.

  34. United States v. Sanders, 107 F.4th 234, 263 (4th Cir. 2024).

  35. Id. at 260.

  36. Id. at 261–62.

  37. Id. at 260.

  38. Id. at 262 (citing United States v. Hillie, 39 F.4th 674, 688 (D.C. Cir. 2022)); see infra Section II.C (discussing the D.C. Circuit’s rejection of Dost and decision to maintain the “hard core sexual conduct” standard).

  39. See United States v. Frabizio, 459 F.3d 80, 87 (1st Cir. 2006); United States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008); United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989); United States v. Steen, 634 F.3d 822, 826 (5th Cir. 2011); United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009); United States v. Petroske, 928 F.3d 767, 773 (8th Cir. 2019); United States v. Perkins, 850 F.3d 1109, 1121 (9th Cir. 2017); United States v. Isabella, 918 F.3d 816, 831 (10th Cir. 2019); United States v. Hunter, 720 F. App’x 991, 996–97 (11th Cir. 2017).

  40. Sanders, 107 F.4th at 261–62.

  41. Id. at 262.

  42. Id.

  43. Id.

  44. Id.

  45. Id. at 263.

  46. Id. (citing United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008)).

  47. Id.

  48. Id. at 262 (citing United States v. Hillie, 39 F.4th 674, 682 (D.C. Cir. 2022)).

  49. Id. at 263 (citing United States v. Courtade, 929 F.3d 186, 188 (4th Cir. 2019), as amended (July 10, 2019).

  50. Id. at 263–64 (quoting Courtade, 929 F.3d at 192).

  51. Id. at 264.

  52. Id. at 262; Hillie, 39 F.4th at 674, 682.

  53. Hillie, 39 F.4th at 681, 685.

  54. Id. at 681–83 (citing Miller v. California, 413 U.S. 15, 17 (1973); New York v. Ferber, 458 U.S. 747, 750–51 (1982)) (explaining that the Supreme Court referenced the use of lewd in the Miller decision as an example of the term’s use in Ferber).

  55. Id. at 682 (citing United States v. X-Citement Video, Inc., 513 U.S. 64, 74 (1994)).

  56. Id.

  57. Id.

  58. Id. at 684–85. Noscitur a sociis, Latin for “it is known by its associates,” is a common canon of interpretation that requires that an ambiguous term be interpreted by considering the meaning of words accompanying it in a list or its immediate context. Noscitur a sociis, Black’s Law Dictionary (12th ed. 2024).

  59. Hillie, 39 F.4th at 685; 18 U.S.C. § 2256(2)(A)(i)–(iv).

  60. Hillie, 39 F.4th at 685 (holding that this construction was consistent with the other terms used in the statute, as well as the construction of the word “lewd” in a previously discussed case).

  61. Id. at 686–87.

  62. Id. at 686.

  63. Id. at 687.

  64. Id.

  65. Id.

  66. Id. at 687–88.

  67. Id. at 688 (citing United States v. Williams, 553 U.S. 285, 301 (2008)).

  68. Id.; 18 U.S.C. §§ 2251(a), 2256(2)(A)(v).

  69. Hillie, 39 F.4th at 688 (citing Williams, 553 U.S. at 297).

  70. Id. at 689.

  71. Id. at 689–90.

  72. United States v. Sanders, 107 F.4th 234, 262 (4th Cir. 2024).

  73. United States v. Price, 775 F.3d 828, 839 (7th Cir. 2014).

  74. Id.

  75. Id. at 840.

  76. Id. at 839.

  77. Id. at 839–40.

  78. Id. at 839.

  79. Id.

  80. Id.

  81. See infra Sections III.B.1–2.

  82. United States v. Sanders, 107 F.4th 234, 260 (4th Cir. 2024)); see Carissa Byrne Hessick, The Limits of Child Pornography, 89 Ind. L.J. 1437, 1470–72 (2014) (arguing that the factor considering the sexual response of viewer can either be given an objective or subjective understanding, which can lead to results not within the scope of the statute); Laura E. Avery, The Categorical Failure of Child Pornography Law, 21 Widener L. Rev. 51, 77 (2015); James E. Bristol, III, Free Expression in Motion Pictures: Childhood Sexuality and a Satisfied Society, 25 Cardozo Arts & Ent. L.J. 333, 357 (2007).

  83. Sanders, 107 F.4th at 260; Price, 775 F.3d at 839.

  84. Price, 775 F.3d at 839.

  85. Id. (quoting United States v. Russell, 662 F.3d 831, 843 (7th Cir. 2011)).

  86. Id.

  87. Id. at 839–40.

  88. Id. at 839.

  89. Id. at 840.

  90. Id.

  91. Id.

  92. Id.

  93. Dowling, supra note 12, at 165, 168.

  94. Compare United States v. Hillie, 39 F.4th 674, 686, 689–90 (D.C. Cir. 2021) (holding that use of the Dost factors was clearly erroneous), with Price, 775 F.3d at 828, 839 (holding that instructing the jury using the Dost factors was not plain error but refusing to endorse the Dost factors).

  95. See discussion infra Sections III.A–C.

  96. Dowling, supra note 12, at 153–54.

  97. Adler, supra note 4, at 937–39, 945–46, 955–56 (explaining that there are no exceptions for works of “serious literary, artistic, political or scientific value” under child pornography law, as there are under general obscenity law (quoting Miller v. California, 413 U.S. 15, 24 (1975))).

  98. Avery, supra note 82, at 75 (citing State v. Dixon, No. 01C01-9802-CC-00085, 1998 WL 712344, at *1 (Tenn. Crim. App. Oct. 13, 1998)).

  99. Dowling, supra note 12, at 156, 166.

  100. Amy Adler, The Perverse Law of Childhood Pornography, 101 Colum. L. Rev. 209, 242 (2001); see also Bruce Ryder, The Harms of Child Pornography Law, 36 U.B.C. L. Rev. 101, 109 (2003) (discussing Canadian child pornography law).

  101. Hessick, supra note 82, at 1440–41.

  102. Id. at 1452; Robert J. Danay, The Danger of Fighting Monsters: Addressing the Hidden Harms of Child Pornography Law, 11 Rev. Const. Studs. 151, 171–72 (2005).

  103. Dowling, supra note 12, at 166 (citing Allison L. Cochran, Punishment for Virtual Child Pornography . . . It’s Just A Fantasy, 4 (Oct. 2009) (unpublished manuscript) (on file with BePress).

  104. Id. at 166–67 (citing James E. Bristol, III, Free Expression in Motion Pictures: Childhood Sexuality and a Satisfied Society, 25 Cardozo Arts & Ent. L.J. 333, 351 (2007)); United States v. Dost, 636 F. Supp. 828, 833 (S.D. Cal. 1986), aff’d sub nom., United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), and aff’d, 813 F.2d 1231 (9th Cir. 1987).

  105. Bristol, supra note 82, at 355.

  106. Id.

  107. Id. (emphasis omitted).

  108. Id.

  109. Id.

  110. United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom., United States v. Wiegand, 812 F.2d 1239, 1239 (9th Cir. 1987), and aff’d, 813 F.2d 1231, 1231 (9th Cir. 1987).

  111. Dowling, supra note 12, at 170–71.

  112. Hessick, supra note 82, at 1468–69 (proposing the test for lasciviousness as simply: “(1) the depiction of sexual activity and (2) the circumstance that renders that activity exploitative or abusive”).

  113. Id. at 1469; United States v. Horn, 187 F.3d 781, 790 (8th Cir. 1999).

  114. Hessick, supra note 82, at 1470.

  115. See id. at 1468, 1470.

  116. United States v. Sanders, 107 F.4th 234, 262 (4th Cir. 2024).

  117. Id.

  118. United States v. Courtade, 929 F.3d 186, 191 (4th Cir. 2019), as amended (July 10, 2019) (citing United States v. Villard, 885 F.2d 117, 124 (3d Cir. 1989)).

  119. United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom., United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), and aff’d, 813 F.2d 1231 (9th Cir. 1987); Adler, supra note 4, at 955.

  120. Hessick, supra note 82, at 1470.

  121. See, e.g., id. at 1471.

  122. Id. at 1472.

  123. Avery, supra note 82, at 75–76 (citing State v. Dixon, No. 01C01-9802-CC-00085, 1998 WL 712344, at *1 (Tenn. Crim. App. Oct. 13, 1998)).

  124. Id. at 76.

  125. Id.

  126. Adler, supra note 4, at 931–32, 954.

  127. Id. at 955.

  128. Id. at 955–56.

  129. Id. at 956–57.

  130. Id. at 943–44.

  131. Id. at 957.

  132. Danay, supra note 102, at 156.

  133. Adler, supra note 100, at 246–48 (explaining that sociologists and psychologists such as Foucault and Freud theorize about the relationship between prohibition and desire).

  134. Id. at 247.

  135. Id. at 251.

  136. Danay, supra note 102, at 156.

  137. Id. at 156–57.

  138. Id. at 157.

  139. Adler, supra note 4, at 960.

  140. Adler, supra note 100, at 253–54.

  141. Id. at 254–55.

  142. E.g., Hessick, supra note 82, at 1472, 1481 (discussing how the “proposed definition” provided by the Dost test would “exclude surreptitious photographing and filming from the constitutional definition of child pornography” but could also “result in a court finding that a picture of a child in a winter coat constitutes child pornography”); see supra notes 80–82 and accompanying text.

  143. Cf. Hessick, supra note 82, at 1469 (“[T]wo defendants were treated quite differently based on the content of the pictures that their relatively similar behavior yielded”).

  144. Danay, supra note 102, at 178–79.

  145. Id. at 156, 178–79.

  146. See Adler, supra note 4, at 962.

  147. See supra Section II.A.

  148. Adler, supra note 4, at 939.

  149. Id.

  150. See id. at 929 (quoting Miller v. California, 413 U.S. 15, 24 (1973)).

  151. See supra Section II.A.

  152. Id. at 961–62.

  153. Id. at 961.

  154. Id. at 963–66.

  155. Bristol, supra note 82, at 358.

  156. See Adler, supra note 4, at 969.

  157. See supra Part III; infra Part IV.

  158. United States v. Rivera, 546 F.3d 245, 252–53 (2d Cir. 2008) (“[The Dost factors] are not mandatory, formulaic or exclusive.”).

  159. Id. at 253.

  160. See id. at 249; see also United States v. Villard, 885 F.2d 117, 121 (3d Cir. 1989) (“Whatever the exact parameters of ‘lascivious exhibition,’ we find it less readily discernable than the other, more concrete types of sexually explicit conduct . . . .”); United States v. Hill, 322 F. Supp. 2d 1081, 1084 (C.D. Cal. 2004) (“Lasciviousness is an elusive concept, and courts have struggled to develop a test for identifying it.”).

  161. United States v. Price, 775 F.3d 828, 839–40 (7th Cir. 2014).

  162. See cases cited supra notes 39, 52 and accompanying text (listing cases from ten circuit courts relying on Dost or the hard core sexual conduct standard to illuminate the meaning of “lascivious,” instead of relying on its plain meaning).

  163. See supra Section III.A.

  164. Contrast Rivera, 546 F.3d at 252–53 (holding that the Dost factors are not intended to provide a “definition of the word ‘lascivious’ . . .”), with Villard, 885 F.2d at 122 (holding that at least one Dost factor needs to be present to establish “lasciviousness”).

  165. See United States v. Sanders, 107 F.4th 234, 263 (4th Cir. 2024).

  166. Rivera, 546 F.3d at 252–53.

  167. See id.

  168. See supra Section III.B.1.

  169. United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009). Contra Villard, 885 F.2d at 122.

  170. Sanders, 107 F.4th at 263.

  171. Brown, 579 F.3d at 683–84 (limiting consideration of contextual evidence to “circumstances directly related to the taking of the images” such as “(1) where, when, and under what circumstances 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”).

  172. Rivera, 546 F.3d at 253.

  173. E.g., Hessick, supra note 82, at 1468 (proposing a test for lasciviousness as simply: “(1) the depiction of sexual activity and (2) the circumstance that renders that activity exploitative or abusive”); Danay, supra note 102, at 186 (suggesting a harm-based test is superior to a sexual-purpose test).

  174. See supra Section II.C.

  175. Rivera, 546 F.3d at 252.

  176. Adler, supra note 4, at 934 (noting how even in prisons pedophiles are detested by other criminals).

  177. Id. at 935 (“The former Solicitor General of the United States concluded that ‘the issue of children and pornography’ is so ‘incendiary’ that people cannot discuss it rationally.” (quoting John Heilemann, Big Brother Bill, Wired, Oct. 1996, at 53, 54)).

  178. Rivera, 546 F.3d at 253.

  179. Boam v. United States, 144 S. Ct. 1345, 1345 (2024); Barnes v. United States, 142 S. Ct. 2754, 2754 (2022); Petition for Writ of Certiorari at 18, Boam, 144 S. Ct. 1345 (No. 23-625); Petition for Writ of Certiorari at 7–8, Barnes, 142 S. Ct. 2754 (No. 21-6934).

  180. United States v. Brown, 579 F.3d 672, 682–83 (6th Cir. 2009) (quoting United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)).

  181. Id. at 683.

  182. Id.

  183. Id. at 680; see supra text accompanying notes 39–47.

  184. United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989).