William Dahl v. United States

18 U.S.C. § 2252A criminalizes the receipt of child pornography. A depiction counts as child pornography if its “production . . . involves the use of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(A). “Sexually explicit conduct” includes a “lascivious exhibition of the anus, genitals, or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). Congress pinned punishment to objectively lascivious exhibitions, not depictions that are subjectively lascivious “in [a defendant’s] estimation[.]” United States v. Williams, 553 U.S. 285, 301 (2008). Yet some Circuits graft subjective intent and desire onto this scheme by telling factfinders, when deciding if a depiction shows a lascivious exhibition, to consult subjective factors from a forty-year-old judicial opinion. See United States v. Dost, 636 F.Supp. 828 (S.D.Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)). The question presented is: How, if it all, may courts direct factfinders to rely on the “Dost factors” in deciding whether a depiction includes a “lascivious exhibition of the anus, genitals, or pubic area of any person?”