Sex crime criminal defense lawyers Benjamin, Aaronson, Edinger and Patanzo

Definitions

(A) The term “minor” means any person under the age of 18 years.

(B) The term “sexually explicit conduct” means actual or simulated:

  1. sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex
  2. bestiality
  3.  masturbation
  4. sadistic or masochistic abuse
  5. lascivious exhibition of the genitals or pubic area of a person.

In deciding whether an exhibition is lascivious, you may consider these six factors:

    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.

This list is not exhaustive, and an image need not satisfy any single factor to be deemed lascivious. Instead, you must determine whether the visual depiction is lascivious based on its overall content. It is for you to decide the weight or lack of weight to be given any of these factors.

For purposes of subsection 8(B) [1] of this section, “sexually explicit conduct” means—

  1. graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited
  2. graphic or lascivious simulated
  3. bestiality
  4. masturbation
  5.  sadistic or masochistic abuse
  6. graphic or simulated lascivious exhibition of the genitals or pubic area of any person

(C)  “producing” means producing, directing, manufacturing, issuing, publishing, or advertising.

(D) “visual depiction” includes, undeveloped film, videotape, data stored on computer disk, by electronic means which is capable of conversion into a visual image and lastly data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format.

(E) “in interstate commerce” means the visual depiction, production or transmission materials crossed or would cross a state line.

(F)  “means or facility of interstate commerce” includes the internet or the telephone.

(G)  “affecting interstate or foreign commerce” means having at least a minimal effect upon interstate or foreign  commerce.

(H) “computer” means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.

(I)  “custody or control” includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;

(J) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

  1.  the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
  2. such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
  3. such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

(K) “identifiable minor”—

(A) means a person—

    • who was a minor at the time the visual depiction was created, adapted, or modified; or
    •  whose image as a minor was used in creating, adapting, or modifying the visual depiction; and
  • who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

(B) shall not be construed to require proof of the actual identity of the identifiable minor.

(L) “graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and

(M) the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults