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Originally Posted by baddog
1. Where did you find that definition?
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It's not a definition you are going to find clearly stated within the language of any statute or regulation.
The idea that a clothed pubic area can be subjected to the lascivious exhibition clause stems from case law, and two cases in particular:
U.S. v Dost and
U.S. v Knox. These were both CP cases, and one of the questions addressed in them was whether pictures of clothed children could still be considered CP.
In
Dost, the Court established a six part 'test' to determine whether a visual depiction of a minor meets the definition of a "lascivious exhibition of the genitals or pubic area" under 18 USC 2256. The Court concluded that just because the pubic area in question is clothed does not mean that display of it cannot be considered "lascivious" under the law.
(A depiction does not have to meet all six parts of the Dost test in order to be considered lascivious, btw; in that sense, this is a very different 'test' than, say, the Miller test for obscenity)
In
Knox, the Court refined the
Dost court's ruling, and established that things like the context of the depiction and the intent of the person who created the depiction should be relevant to the Dost test. The
Knox Court also wrote that:
Quote:
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We hold that the federal child pornography statute, on its face, contains no nudity or discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as lascivious exhibitions, and that this construction does not render the statute unconstitutionally overbroad.
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As I understand it, since the definition of "sexually explicit" is nearly identical in statutes covering CP specifically and those relevant to sexually explicit depictions of adults as well, and the "lascivious exhibition" clause appears in definitions that pertain to both, the theory is that even in the context of purely adult porn, a "lascivious exhibition" of clothed genitalia is a depiction subject to 2257.
I don't believe there is an actual case that is on point here. The attorneys who speculate that 2257 can be applied to depictions of clothed genitals are making a reasonable, if fairly conservative (from a risk assessment perspective I mean; not politically conservative) assumption about how the Court would interpret 2257, in light of
Dost and
Knox.