Obscene Visual Representations of the Sexual Abuse of Children

1. The defendant knowingly produced, distributed, received, or possessed with intent to distribute, a visual depiction
2. The visual depiction is of a minor engaging in sexually explicit conduct
3. The visual depiction is obscene
4. A communication involved in or made in furtherance of the offense was communicated or transported by mail/in interstate or foreign commerce (including by computer)

OR

4. A communication involved in or made in furtherance of the offense contemplated the transmission or transportation of a visual depiction by mail/in interstate or foreign commerce (including by computer)

OR

4. Any person traveled or was transported in interstate or foreign commerce in the course of or in furtherance of the commission of this offense

OR

4. Any visual depiction involved in the offense was produced using materials that were mailed, shipped, or transported in interstate or foreign commerce (including by computer)

Attempts and conspiracies to do any of the above are also outlawed under the statute.

18 U.S.C.A. § 1466A(a) (West)

See the Common Terms section here.

The statute includes “a visual depiction of any kind,” which includes drawings, cartoons, sculptures, and paintings.^[6] The statute goes on to define “visual depiction” as including undeveloped film and videotape, data stored on a computer disk or by electronic means (which is capable of conversion into a visual image), photographs, films, videos, pictures, digital images or pictures, computer images or pictures, and computer generated images or pictures (whether made or produced by electronic, mechanical, or other means).^[7]

^[6] 18 U.S.C.A. § 1466A(a) (West)

^[7] 18 U.S.C.A. § 1466A(f)(1) (West)

All circuits have adopted the 18 U.S.C.2256(1) definition of “minor,” which means any person under 18 years old.

The statute clarifies that it is not a required element that the depicted minor actually exists.^[8]

^[8] Statute, United States v. Bowersox, 72 M.J. 71 (C.A.A.F. 2013); 18 U.S.C.A. § 1466A(c) (West)

Unlike the traditional three-prong Miller test used to determine obscenity, 1466A offers an alternative two-pronged test for obscenity.^[9] The matter involving minors can be deemed obscene if it:

1. Depicts an image that is, or appears to be a minor engaged in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse; and
2. If the image lacks serious literary, artistic, political, or scientific value.

However, many circuits have adopted a third requirement, in line with the Miller test for obscenity: that the average person, when applying contemporary adult community standards, finds that the material as a whole appeals to prurient interest (an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion).^[10]

The Seventh Circuit also clarifies that these standards should be considered from the standpoint of an average adult in the community, rather than from someone involved in the case or from subjective personal views regarding obscenity.^[11] The jury should not judge the content’s impact on a “particularly susceptible or sensitive person, or indeed a totally insensitive one.”^[12] Furthermore, Miller only went so far as to express a “contemporary community standard” rather than a national standard for obscenity.^[13] Ultimately, whether material is obscene is for the jury to decide.^[14]

^[9] Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973)

^[10] Seventh Circuit Jury Instructions

^[11] United States v. Rogers, 474 F. App’x 463 (7th Cir. 2012)

^[12] Hamling v. United States, 418 U.S. 87, 128-29 (1974)

^[12] Smith v. United States, 431 U.S. 291, 97 S. Ct. 1756, 52 L. Ed. 2d 324 (1977)

^[13] United States v. Handley, 564 F. Supp. 2d 996 (S.D. Iowa 2008)

The knowledge requirement for obscenity is the same as that in child pornography charges and requires the defendant to know that the image they produce, distribute, receive, or possess with intent to distribute is an image with the characteristics described in the statute.^[14]

The knowledge requirement does not extend to the knowledge of the legal status of materials.^[15]

^[14] United States v. Dean, 635 F.3d 1200 (11th Cir. 2011); United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994)

^[15] United States v. Wellman, 663 F.3d 224 (4th Cir. 2011)

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Interstate & Foreign Commerce

The jurisdictional elements for a federal obscenity charge go beyond those of child pornography. Even interstate or foreign communications related to obscene representations of the sexual abuse of children are sufficient for a case to fall under federal jurisdiction.

“Interstate commerce” is defined as commerce between different states, territories, and possessions of the United States (including DC).^[16]

“Foreign commerce” is defined as commerce between any state, territory, or possession of the United States and a foreign country.^[17]

“Commerce” includes travel, trade, transportation, and communication.^[18]

Most circuits consider images transmitted or received over the Internet to have moved in interstate commerce.^[19]

^[16] 18 U.S.C. Section 10

^[17] 18 U.S.C. Section 10

^[18] Seventh Circuit Jury Instructions

^[19] United States v. Lewis, 554 F.3d 208, 215 (1st Cir. 2009); United States v. MacEwan, 445 F.3d 237, 244 (3d Cir. 2006); United States v. Runyon, 290 F.3d 223, 239 (5th Cir. 2002).

18 U.S.C. Section 1466A: Anyone who commits, or attempts or conspires to commit, a child pornography obscenity offense “shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.” Therefore, offenses involving possession, receipt, or distribution of “obscene visual representations of the sexual abuse of children” carry the same penalties as equivalent offenses involving child pornography.

The Fifth Circuit found that a minimum 10-year sentence for possession of obscene material depicting sexual acts involving minors by a recidivist was not categorically disproportionate and therefore did not violate the Eighth Amendment.^[20]

^[20] United States v. Farrar, 876 F.3d 702 (5th Cir. 2017)