ASK THE LAWYERS

Hello,

Thanks very much for making your site. I have found it to be very informative. I just have one quick question though, and I was wondering if you might be able to give me an answer.ASK THE LAWYERS

Hello,

Thanks very much for making your site. I have found it to be very informative. I just have one quick question though, and I was wondering if you might be able to give me an answer. I have seen recently that “non-nude” websites are becoming more and more popular. I was thinking about starting one. Some of these websites depict underage individuals in their underwear (bras, panties, swimwear, etc.). Is this legal? I read some articles regarding underage individuals, but I could not get a clear idea of whether it was against the law to have pictures of young people in a potentially sexual setting. For example, many of the non-nude sites feature pictures of girls in their bras and panties with their legs spread, or grabbing their breasts, showing off their ass or other positions. Before I begin building a site, I would like to know if presenting this kind of material is legal. I thank you for your website, and your response.

Thanks

? ? ? ? ? ? ? ? ? ? ?

The reader asks a question regarding a particularly hot topic in the adult Internet industry of late.

In short, the issue is whether so called “Lolita Sites” are legal. As is often the case with simple legal questions, the answer is: It depends. Initially, it is important to point out that images of underage models in erotic poses, whether clothed or unclothed, is dangerous business. This content contributes to the blurring distinction between legal adult erotica and illegal kiddy porn. The censorship groups routinely attempt to lump the adult industry in with child pornographers, in the attempt to blur these lines and sway public opinion against the legitimate adult industry. The existence of “youth art” or “Lolita” sites simply provides further ammunition for the anti-porn groups to argue that the adult industry is really just a bunch of pedophiles deserving of long jail sentences. Thus, regardless of the legality of such content, it should be avoided like the plague by any legitimate adult webmaster. Those who choose to dabble in underage imagery contribute to the significant difficulties already facing the adult webmaster community. With that in mind, the following is a brief analysis of this extremely complex legal issue. This information is not intended as an exhaustive review of the subject, nor is it intended as a guide for those desiring to become involved with such dangerous content. On this subject in particular, experienced legal counsel is critical.

Adult erotica cannot be criminalized unless it meets the stringent test set forth in Miller v. California, which requires that the images 1) depict sexual activity that is patently offensive, 2) appeal to the prurient interest, and 3) lack serious literary, scientific, artistic or political value. Such is not the case with underage erotica. Decades ago, the Supreme Court determined that the interest in protecting children from the abuse that occurs in photographing them in erotic poses justifies strict laws prohibiting child pornography. None of the Miller prongs, mentioned above, are necessary to establish that a particular image constitutes child pornography under federal law. Title 18 U.S.C. 2256 defines the prohibited conduct relating to the use of minors in erotic photography. Images containing any type of sexual activity or “lascivious exhibition of genitals or pubic area” of minors are illegal. Although beyond the scope of this response, the jail sentences regularly imposed for distribution of child pornography are staggering.

Two common misconceptions regarding child erotica currently exist:

Misconception #1: Child porn requires at least some nudity. To the contrary, even images of fully-clothed minors can be considered child pornography under federal law. Simply attracting notice to the pubic area is enough. For those readers who say that nobody would ever be prosecuted for such material, read: U.S. v. Knox, 32 F.3d 733 (3d Cir. 1994). There, while the subjects were clad in tight leotards, panties or bathing suits, yet the images were found to violate federal child pornography laws.

Misconception #2: Images of minors cannot be illegal if sufficiently “artistic.” In fact, erotic images of underage models can be both highly artistic and highly illegal at the same time. Remember, the Miller Test is not applicable to child porn. The “value” of the work is not considered. Also, the work is not considered “as a whole.” That means each image is reviewed independently. Thus, it is not appropriate to ask whether a website is illegal or not. Some of the images may be illegal, while others may not. However, it only takes one illegal image to land the owner in jail.

The federal courts currently use a list of factors to determine whether any given image violates the law. These are known as the Dost Factors, which comes from U.S. v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), and involve the following considerations:

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.

The courts have recognized that the above list is certainly not exhaustive, and that additional factors might be relevant in particular cases. However, these factors indicate how most courts would review child erotica.

In addition to federal law, each state has some restriction on underage images. Some states specifically prohibit images that depict the unclothed breast of a female between certain ages, usually 10-17. Given the global nature of the Internet, a website may have to comply with the laws of each state.

As is obvious from the above, underage content falls in the extremely high risk category. Aside from the moral issues relating to protection of children, this content can pose great legal risks. Even with competent legal advice, compliance with state and federal law in this area becomes a dicey proposition. The better course is to avoid this content all together.

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, based in Los Angeles. Mr. Walters runs the firm’s Florida office, and represents clients involved in all aspects of adult media. Weston, Garrou & DeWitt handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com or www.FreeSpeechLaw.com.