Child porn and pictures of naked kids:

Someone asked: Are pictures of naked children per se child pornography? As I understand it, most laws define child porn as pictures of minors engaging in sexual practices or lewdly exhibiting their genitals; that is the basis on which the child porn statutes were upheld against a First Amendment challenge. A picture of a nude child where the genitals aren’t lewdly exhibited — which probably refers to how they’re likely to be seen by the typical observer, and not to the intentions of the minor — presumably wouldn’t be child pornography. (Conversely, a picture of a child who isn’t nude, but that is focused on the child’s genitals, may well be child pornography, see U.S. v. Knox, 32 F.3d 733 (3rd Cir. 1994).)

     At the same time, what’s lewd exhibition and what’s not is in the eye of the beholder (cf. Tom Lehrer). Knox, for instance, applies a six-factor test:

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.

Some pictures would clearly qualify, others would pretty clearly not, but quite a few will end up being in a very dangerous gray area. I suspect that in practice nudity will indeed be the most important factor for many prosecutors, judges, and jurors (though, I stress again, neither a necessary nor a sufficient one). So when in doubt, you might want to cut down on the nude pictures, especially once you’re getting past the clearly socially well-accepted (e.g., the naked infant in the tub).

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