Fifth Circuit Tosses Child Porn Conviction, Holds Image Wasn’t ‘Patently Offensive’

Whether a nude image of a minor is considered illegal depends on whether it’s “obscene.” But what does that mean? For decades, what has amounted to obscenity has never been clearly established by the courts. The Supreme Court did set some guidelines for obscenity cases – 50 years ago – but it still left the door open to different interpretations. This has resulted in numerous challenges to obscenity cases, including child pornography cases, with the outcome hinging largely on where the case lies and what society there thinks is obscene.

That’s why it was a surprise to me when a divided panel of the U.S. Court of Appeals for the Fifth Circuit recently held that a depiction of a minor in a sexual setting was not obscene, tossing the conviction and the attached 24-year sentence. That court is one of the most conservative in the country. Here’s how it happened.

The case arose when law enforcement found numerous drawings and stories that the defendant had been collecting and trading online for almost 30 years. The grand jury eventually charged a total of nine counts, and a jury convicted him of all those counts at trial. He was sentenced to 40 years in prison, by judge Walter David Counts III in the Western Dist. of Texas, and he appealed.

On appeal, the Fifth Circuit tossed one conviction for possession of a drawing of a minor engaged in solo sexual activity. A drawing of a nude minor is illegal under federal law if it:

depicts a minor engaging in sexually explicit conduct; and is obscene; or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and lacks serious literary, artistic, political, or scientific value.

18 U.S.C. § 1466.

The Court cited the Supreme Court’s definition of “obscenity” in Miller v. California, 413 U.S. 15 (1973), and found that this particular drawing was not illegal. There are three factors a court must consider, under Miller, in deciding whether a depiction is “obscene”:

  • whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appealed to the prurient interest,

  • whether the work depicted or described, in a patently offensive way, sexual conduct specifically defined by the applicable state law, as written or authoritatively construed, and

  • whether the work, taken as a whole, lacked serious literary, artistic, political, or scientific value.

The Fifth Circuit concluded that, while the other convictions involved minors being forced to perform sexual acts, this count of conviction did not:

[T]he charged image in Count 1 is a simple black and white pencil or charcoal drawing with minimal detail depicting an adolescent girl alone, [performing a solo sexual act]. Importantly, unlike the children depicted in the images in Counts 8 and 9, there is no indication that the subject of the image in Count 1 is being forced to perform a sexual act. The drawing is simple and utterly lacking in violent depictions. Our independent constitutional review of the image charged in Count 1 leads us to the conclusion that it is not obscene under Miller.

The takeaway is that a conviction under § 1466 requires there to be some use of force or violence in the depictions, coupled with the sexual activity. A mere depiction of a nude minor, even if sexually suggestive, is not enough, the Fifth Circuit held in this case. The Court remanded the case back to the district court to dismiss the conviction. See United States v. Arthur, 2022 U.S. App. LEXIS 28430, __ F.4th __ (5th Cir. Oct. 12, 2022).

While this result may not be helpful to the defendant in this case, since he has several other charges that could still amount to a lengthy prison sentence, it’s rather instructive for those charged under this offense on exactly what’s required for the government to obtain a conviction. Convictions for drawings of nude minors has always been a questionable topic, but I think this case sets a higher bar for the government to clear when going after these kinds of cases. Mere nudity and sexual activity in the drawing isn’t enough.

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