On February 25, 2011, the United States Court of Appeals for the Fifth Circuit reversed the conviction of a defendant charged with the production of child pornography. United States v. Steen, ___ F.3d ___, 2011 WL 667977 (5th Cir. 2011). [Panel: Circuit Judges Higginbotham, Smith, and Elrod (per curium) (concurring opinion by Judge Higginbotham)].
Let a voyeur with a video camera into a tanning salon and you can anticipate that he will engage in criminal conduct and be discovered. That’s what happened to Alan Ray Steen. He frequented the Electric Sun Tanning Salon in Odessa, Texas. Because the walls in the rooms did not reach the ceiling, Steen could stand on a chair, hold his camera on top of the partition between the rooms, and film the female in the adjoining room.
Steen had done this several times before being discovered and arrested for a violation of Texas Penal Code §21.15 (Improper Photography or Visual Recording). When investigators examined his camera, they found a recording of C.B. When they learned that she was 16 years old at the time, Steen’s life took a turn for the worse.
Federal authorities made the decision to prosecute Steen for a violation of 18 U.S.C. §2251(a), the federal child pornography statute. At trial, the issue was whether the videotape included a “lascivious exhibition of C.D.’s genitals or pubic area.” An appendix to the opinion sets out what was on the video that was admitted into evidence and played for the jury. The entire video is only 44 seconds in length. Below is a description of how the video progresses by the seconds:
Seconds 1–14: Blurry views of the tanning room and ceiling.
Second 15: Tanning bed comes into view.
Seconds 18–21: C.B.’s arm and part of her hair is visible.
Second 21: A more extended part of the C.B.’s back (including her lower back) and long hair may be seen.
Seconds 22–26: Blurry view of the ceiling.
Second 27–34: C.B. comes into view, and she is bending down toward the ground (and toward the camera). The video displays her head, back, and top of her buttocks for about two seconds. She stands up, turning away from the camera and towards the tanning bed; the video does not display any part of the front of her body.
Second 35: C.B. moves out of camera’s view (only the tanning bed is visible).
Second 37: C.B. sits into the tanning bed; her hair, stomach, and upper thigh are visible. Her pubic region is not visible because of how she is seated and the camera angle.
Second 38: The camera moves; C.B. is not visible.
Second 39: C.B. is fully nude lying on her back in the tanning bed. Her breasts are in the center of the shot, and her pubic region is visible on the far right side of the frame. Her legs are outside the camera’s view.
Second 40: The camera is moved, and the view of C.B. is partially obstructed by the wall partition. Her face is visible, but half of her body is hidden. (Part of her pubic region and left breast are visible for about half of a second.)
Second 41: C.B. closes the tanning bed and can no longer be seen.
Seconds 42–44: Blurry view of the ceiling.
At the conclusion of the evidence, Steen’s lawyer moved for a judgment of acquittal that was denied by United States District Judge Robert Junnel of the Western District of Texas. After the jury convicted Steen, Judge Junnel assessed his punishment at 15 years in a federal correctional facility—the minimum sentence under the statute. Steen timely appealed.
The Court’s per curium opinion contains, in part, the following:
Section 2251(a) makes it unlawful to “use” a minor “to engage in . . . sexually explicit conduct” for the purpose of producing a visual depiction of that conduct. In assessing conduct under §2251(a), we ask “two questions: Did the production involve the use of a minor engaging in sexually explicit conduct, and was the visual depiction a depiction of such conduct?” Steen clearly used C.B. for the purposes of producing a nude video, but the statute requires more—the film must depict sexually explicit conduct. Accordingly, this court has found, “a child could be used in the production of a photograph, but the image in the ultimate photograph could be one that did not capture the child engaging in sexually explicit conduct. If this were so, a defendant might be charged under a different statute—perhaps child molestation—but not child pornography.”
[“Lascivious Exhibition” and the Dost Factors]
Here, the parties focused on whether the video was a “lascivious exhibition” of C.B.’s genitals or pubic area. The jury instructions included a description of the six factors first proposed in United States v. Dost that have been applied in this circuit to assess lasciviousness. These factors are:
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.
This list, however, “is not exhaustive, and no single factor is dispositive.” Any determination of lasciviousness “will have to be made based on the overall content of the visual depiction.” Moreover, we note that these factors have never been deployed where a defendant’s conduct said to be criminal under the statute at issue proved to be no more than voyeurism.
[The Dost factors and the language of 18 U.S.C §2251(a)]
In considering the Dost factors and the statutory text, we find that the evidence was insufficient to find a lascivious exhibition of the genitals. First, the focal point of the visual depiction is not on C.B.’s genitalia or pubic area. Her pubic region is only visible for about 1.5 seconds. Moreover, the film did not accent the pubic area—to the contrary, the brief seconds the pubic region is visible, it is on the far side of the image’s frame. The first factor lacks factual support here. It does not point to a finding of lasciviousness.
The second and third factors consider whether the setting or pose of the depiction is sexually suggestive or unnatural. Traditional settings that meet this standard are beds or bedrooms. A tanning salon is not a sexually suggestive setting, nor are C.B.’s movements unnatural for someone who is tanning. Because she did not know she was being filmed, she is, of course, acting naturally. Under certain circumstances, lying on one’s back may be sexually suggestive, but that is not the case when the non-sexual activity being displayed requires one to lie on the back. The fifth factor, suggesting sexual coyness, is irrelevant in this case because C.B. did not know she was being filmed. She neither acts coy nor willing to engage in sexual activity.
The fourth Dost factor is nudity, which Steen’s video satisfies since C.B. was fully nude for her tan. However, the Supreme Court has held that “nudity, without more is protected expression.” Surreptitiously filming a nude tanner, on its own, does not meet the standard for producing child pornography.
The sixth factor is the most difficult to apply—whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Here, the primary evidence of intention to elicit a sexual response is that Steen surreptitiously filmed a nude 16-year-old. However, as a Missouri district court held in a similar case:
These videos could not be considered to have been intended to elicit a sexual response in the viewer any more than mere nudity would, which several courts have concluded is not of a sexual character. We do have some limited context . . . that [the defendant] set up a camera . . . but that context indicates nothing more than an attempt to capture mere nudity and is very different than a person . . . telling a minor to undress, lay on a bed, and open his legs for a nude photo.
Even if one assumes Steen was stirred by his voyeuristic pursuits, there is insufficient evidence to conclude that the image of C.B.’s genitals was designed to elicit a sexual response or whether, perhaps, merely being a voyeur excited Steen. When a photographer selects and positions his subjects, it is quite a different matter from the peeking of a voyeur upon an unaware subject pursuing activities unrelated to sex.
[The Court’s Conclusion]
We have previously adopted the ordinary meaning of the phrase “lascivious exhibition,” which we defined as “a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer.” Here, the government’s evidence cannot meet this standard.
- As the Hon. Henry Politz, former Chief Judge of the Fifth Circuit, would have said, “Steen is a rara avis.” The Government has made the decision not to pursue a motion for rehearing or a motion for rehearing en banc. Alan Ray Steen wins.
- One of the joys of reviewing the cases for this column is the opportunity that I have to see great lawyers at work. Steen was represented by TCDLA stalwarts Dan Cogdell and Brian Wice. Dan set up the issue in the district court, and Brian spiked it at the Fifth Circuit. Steen could not have had better representation.