Sexually Charged

United States v. Rivera, No. 06-4946-cr (2d Cir. October 15, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Carlos Rivera was convicted of various offenses relating to the sexual exploitation of children. One count involved the production of child pornography for which Rivera, a recidivist, received a mandatory life sentence. His primary argument on appeal was that the district court incorrectly charged the jury on the definition of “lascivious” with respect to that count. Finding no error, the court of appeals affirmed.

At issue were six photographs that Rivera took of a sixteen-year old boy lying naked on a hotel bed, in various suggestive poses. The statute, 18 U.S.C. § 2251(a), prohibits coercing or enticing a minor to engage in “sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” “Sexually explicit conduct” is defined to include the “lascivious exhibition of the genitals or pubic area of any person.”

Courts have struggled to define “lascivious,” which is “not self-defining.” Here, the district court relied on United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), in which the district court cited six factors that should be considered in addition to any others relevant to the particular case: (1) was the focal point of the visual depiction the child’s genital area; (2) was the setting sexually suggestive; (3) was the child depicted in an unnatural pose or inappropriate attire given his age; (4) the degree of nudity; (5) did the image suggest sexual coyness or a willingness to engage in sexual activity; (6) was the image intended to elicit a sexual response from the viewer.

In its charge here, the district court gave a general definition of “lascivious exhibition,” noting that “[n]ot every exposure of the genitals or pubic area constitutes a lascivious exhibition.” It then told the jury to consider the Dost factors.

The court of appeals affirmed this charge. It noted that Dost has “provoked misgivings,” although most of those misgivings have pointed out that the Dost factors are over-generous to the defendant. Here, the court addressed the fifth and sixth factors in particular. As for the fifth factor, many courts have noted that the focus should not be on the characteristics of the child photographed but of the exhibition that the photographer sets up. The sixth factor has been criticized as the most confusing, because it shifts the focus from the photograph to the viewer.

Here, the court held that “[n]otwithstadning” these valid criticisms about Dost, there was no error in the charge. Jurors need “neutral references and considerations to avoid decisions based on individual values or the revulsion potentially raised in a child pornography prosecution.” The Dost factors are not definitional, and do not purport to be. Rather, they are factors to consider in a particular case that are not “mandatory, formulaic or exclusive” and serve to “mitigate the risk that jurors will react to raw images in a visceral way, rely on impulse or revulsion, or lack any framework for reasoned dialogue in the jury room.” They therefore “impose useful discipline on the jury’s deliberations,” albeit “imperfectly.” Thus, is it “no error” for a district court to recommend the Dost factors as considerations, making any adaptations or allowances warranted by the facts and charges in a particular case.