Definition of child pornography questioned

Marc DibVolume 50 Staff Member

JUDGE RICHARDSON DELIVERED THE OPINION FOR A UNANIMOUS COURT.

The issue in this case is whether a zoomed-in and cropped version of a legal photograph showing a minor’s genitals constitutes “child pornography.” The Court of Criminal Appeals held that the zoomed-in cropped photograph that shows a child’s genitals is considered child pornography as defined in Texas Penal Code sections 43.26 and 43.25(a)(2).

In State v. Bolles, Bolles was convicted for possession of child pornography when he took cell phone pictures of a computer screen displaying a naked child while at a public library. The image at issue in this case is a famous portrait by photographer Robert Mapplethorpe titled “Rosie”, which is on display at the Guggenheim Museum in New York City. The image depicts a three-year-old girl sitting on a bench in a fashion where her genitals are visible in the lower portion of the picture. Bolles used his phone to crop a close-up image of the child’s genitals. The trial court determined that Bolles created a new image that was distinct from the original photograph and convicted him for possession of child pornography. The court of appeals reversed Bolle’s conviction holding that “the evidence was insufficient to support the conviction because (1) the full image does not depict a lewd exhibition of the genitals, and (2) the cropped image does not depict a person who was under the age of eighteen at the time the image was made.”

According to Texas Penal Code section 43.26(a) a person commits the offense of possession of child pornography when they knowingly or intentionally possess visual material that depicts a child younger than 18 years of age at the time the image was made and the child is engaging in sexual conduct. Texas Penal Code section 43.25(a)(2) states that sexual conduct includes “lewd exhibition of the genitals.” Here, the Court first determines that the age of the child depicted in the image will always remain the same even if it is re-created many years later. The Court next determines that child pornography can be created from images that originally were not considered child pornography. Lastly, the Court must determine whether the image is a “lewd exhibition of the child’s genitals. In order to make this determination, the Court used a six—factor test that was laid out in United States v. Dost. The Dost factors include: (1) whether the child’s genitalia is the focal point of the image, (2) whether the setting of the image is sexually suggestive, (3) whether the child is in a unnatural pose or inappropriate attire, (4) whether the child is fully or partially clothed, or nude, (5) whether the image suggests a willingness to engage in sexual activity, and (6) whether the image is intended to elicit a sexual response from the viewer. The Court determined that the image satisfied all six Dost Factors.

Here, the Court held that there was sufficient evidence to support Bolle’s conviction because the re-created image depicting the child’s genitals constitutes child pornography as defined in Texas Penal Code sections 43.26 and 43.25(a)(2).

State v. Bolles, No. PD-0791-16 (Tex. Crim. App. Oct. 18, 2017).