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"Child Erotica" and the Dost Test

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  • 05-02-2014, 07:10 PM
    acoupleofquestions
    "Child Erotica" and the Dost Test
    Apologies to the mods if this is in the wrong forum!

    I had a few questions regarding the Dost test in relation to so-called "child erotica." From what I understand, at least some salacious images of minors are legal (cf. here, for example: the page contains the rather bald statement that "[c]hild erotica is not illegal"; this ICE link says that "child erotica is not illegal to possess"). Apparently the Dost test is used to distinguish these legal images from child pornography. It's a six-pronged 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

    My main question is when the test is applied. If a racy image of a minor doesn't focus on the minor's genitals or pubic area, will that image be subjected to the Dost test to determine its legality? Could that image legally qualify as CP if the other criteria of the Dost test are met but criterion 1 isn't? I realize that the Dost criteria are more guidelines than they are hard-and-fast rules, of course, and I know that in U.S. v. Knox clothed images of minors were found to contain "lascivious exhibition of the genitals or pubic area". But would a salacious picture of a clothed minor in which the genitals aren't displayed (even by Knox's broad interpretation of the word display) ever be found to constitute CP? My secondary question is how often the possession, distribution, production, etc. of legally ambiguous images of minors is pursued and prosecuted. I became interested in this subject after hearing about the child modeling sites that were shuttered during the last decade: I know that the photographers and such associated with those sites were charged with various CP-related crimes, but were subscribers prosecuted?

    Thank you in advance for any information you have to offer!
  • 05-02-2014, 07:20 PM
    Disagreeable
    Re: "Child Erotica" and the Dost Test
    It has been proven that what one court might consider over the limit vs what another court would consider over the limit are different. Therefore, it is best to err on side of caution. Anything not considered standard conditions viewed at a nudist colony or presented as modeling by a professionally recognized photographer in a models portfolio should be considered off limits.
  • 05-02-2014, 08:31 PM
    Lehk
    Re: "Child Erotica" and the Dost Test
    Stop viewing child porn and you won't need to worry about it.
  • 05-02-2014, 09:38 PM
    LawResearcherMissy
    Re: "Child Erotica" and the Dost Test
    No. We don't assist people in circumventing CP laws.
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