People v. Sven ( 2006 )

No. 2--05--0393 Filed 5/3/06
______________________________________________________________________
________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________
________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 04--CF--365
)
ARIC SVEN, Honorable )
)
John T. Phillips,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________________
_____
PRESIDING JUSTICE GROMETER delivered the opinion of the court:
Defendant, Aric Sven, was convicted of one count of child pornography (720 ILCS
5/11--20.1 (West 2002)) following a bench trial in the circuit court of Lake County. Prior to trial,
defendant pleaded guilty to four counts of unlawful videotaping (720 ILCS 5/26--4 (West 2002)).
He raises no issue as to these counts on appeal. He does, however, contest his conviction of child
pornography, arguing that the tapes he produced do not fall within the statutory definition of child
pornography. We disagree and therefore affirm. We also reject defendant's contention that his
sentence of eight years' imprisonment is excessive.
Defendant produced a number of videotapes, which were recovered from his home with the
consent of his wife, by virtue of placing hidden video cameras in his bathroom. Two cameras were
operating, one aimed at waist level and the other pointing down from a higher angle. The latter was
No. 2--05--0393
hidden in the speaker of a television set that was mounted in the corner of the bathroom. The
cameras did not zoom in or out, nor did they pan from side to side.
At issue here is a tape defendant recorded of his daughter's babysitter. At the time of the
taping, defendant's daughter was still an infant. The babysitter was 14 or 15 years old. When
defendant arranged for the babysitter to care for his daughter, he instructed her to give the baby a
bath. Defendant instructed the babysitter to get into the tub with the baby, purportedly for safety
reasons. The babysitter testified that she was unaware that she was being taped.
The tape shows the babysitter dressing and undressing in the bathroom. Throughout much of
the video, she is nude. The babysitter is seen bathing with the baby, holding the baby, bouncing the
baby in her arms, and, at one point, dancing with the baby to keep her from crying. As the trial court
noted, there were two occasions where the babysitter touched her own genital area. However, as the
trial court also correctly noted, this was the sort of innocent conduct in which people engage in the
bathroom. The sole issue before us is whether these images constitute child pornography. We hold
that they do.
The crime of child pornography is defined by section 11--20.1 of the Criminal Code of 1961
(Code) (720 ILCS 5/11--20.1 (West 2002)), in pertinent part, as follows:
"(a) A person commits the offense of child pornography who:
(1) films, videotapes, photographs, or otherwise depicts or portrays by means
of any similar visual medium or reproduction *** any child whom he knows or
reasonably should know to be under the age of 18 ***:
***
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(vii) depicted or portrayed in any pose, posture or setting involving a
lewd exhibition of the unclothed genitals, pubic area, buttocks, or, if such
person is female, a fully or partially developed breast of the child ***."
Defendant contends that the videotape he made does not constitute child pornography because the
images are not lewd, as required by the statute. He argues that the tape simply depicts ordinary
activity in which people engage while in the bathroom.
Defining "lewd" has proven somewhat problematic for courts. In People v. Walcher, 162 Ill.
App. 3d 455, 460 (1987), the court, quoting Black's Law Dictionary, defined "lewd" as " '[o]bscene,
lustful, indecent, lascivious, lecherous.' " Walcher, 162 Ill. App. 3d at 460, quoting Black's Law
Dictionary 817 (5th ed. 1981). These terms, while synonymous, provide little concrete guidance.
Relying on definitions like these would leave courts with an I-know-it-when-I-see-it approach,
reminiscent of the United States Supreme Court's attempts to define obscenity. See Jacobellis v.
Ohio, 378 U.S. 184, 197, 12 L. Ed. 2d 793, 803-04, 84 S. Ct. 1676, 1683 (1964) (Stewart, J.,
concurring). Such an approach is constitutionally infirm. It is true that child pornography enjoys no
protection under the first amendment. New York v. Ferber, 458 U.S. 747, 764, 73 L. Ed. 2d 1113,
1127, 102 S. Ct. 3348, 3358 (1982). A definitional problem, however, does exist. In order for a
court to determine whether an image is not protected, the court must first determine whether the
content of the image fits within the boundaries of child pornography. As the Supreme Court phrased
it in Ferber, "The category of [depicted] 'sexual conduct' proscribed must also be suitably limited and
described." Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct at 3358.
Strictly speaking, we are not confronted with a constitutional issue; rather, the issue before us
is whether the images defendant produced are lewd within the meaning of Illinois's child
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pornography statue (720 ILCS 5/11--20.1 (West 2002)). However, as the Illinois Supreme Court
recognized, the child pornography statute finds its genesis in the standards set forth in Ferber:
"In accordance with the standards set forth in Ferber, a person commits the offense
of child pornography in Illinois by photographing or possessing photographs of any child
whom the person knows or reasonably should know to be under the age of 18 where such
child is 'depicted or portrayed in any pose, posture or setting involving a lewd exhibition of
the unclothed genitals, pubic area, buttocks, or, if such person is female, a fully or partially
developed breast of the child or other person.' " (Emphasis in original.) People v. Lamborn,
185 Ill. 2d 585, 590 (1999), quoting 720 ILCS 5/11--20.1(a)(1)(vii), (a)(6) (West 1996).
Thus, in determining whether an image is lewd for the purpose of the child pornography statute, a
court also necessarily is determining whether the image is not protected by the first amendment.
Constitutional proscriptions, such as Ferber's requirement that the conduct proscribed is sufficiently
defined (Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct at 3358), do apply. Accordingly, a
workable definition of "lewd" is required.
In United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), the United States District Court
for the Southern District of California articulated a number of factors that have been widely adopted
by courts assessing whether an image of a child is lewd or lascivious. See Lamborn, 185 Ill. 2d at
592 (collecting cases). The standard has been adopted and applied in this state. Lamborn, 185 Ill.
2d at 592; People v. Lewis, 305 Ill. App. 3d 665, 678 (1999). In making such determinations, the
following factors are relevant:
"(1) whether the focal point of the visual depiction is on the child's genitals; (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
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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; and (6) whether the visual depiction is intended or
designed to elicit a sexual response in the viewer." Lamborn, 185 Ill. 2d at 592.
Not all factors need be present for an image to be deemed lewd. Lamborn, 185 Ill. 2d at 592.
Instead, the image must be judged in light of its overall content, while taking into account the age of
the minor. Lamborn, 185 Ill. 2d at 592-93. Since the overall content is relevant, the Dost factors are
not all inclusive. Finally, simple nudity, while a factor to consider under Dost, is not sufficient in
itself to render an image lewd. The Illinois legislature proscribed a "lewd exhibition of the
unclothed genitals." 720 ILCS 5/ 11--20.1(a)(1)(vii) (West 2002). Equating nudity with lewdness
would render the term "unclothed" meaningless, which contravenes a basic principle of statutory
construction. People v. Maggette, 195 Ill. 2d 336, 350 (2001) ("A court should construe a statute, if
possible, so that no term is rendered superfluous or meaningless").
It must be emphasized that we are assessing the content of the images rather than the conduct
of defendant. As our supreme court stated, "We must review the photographs themselves and
determine whether those photographs are lewd under the child pornography statute." Lamborn, 185
Ill. 2d at 590. Later, in discussing the sixth prong of the Dost test, the court emphasized that "[a]
determination that a photograph constitutes child pornography focuses on the photograph itself."
Lamborn, 185 Ill. 2d at 594. Our inquiry, then, is clearly limited to the content of the videotape
itself. As defendant points out in his brief, the manner of its making and other facts external to the
images, though unsavory, are irrelevant for the purpose of determining whether the images are lewd.
In fact, defendant's conduct surrounding the making of the tape constitutes the separate crime of
unlawful videotaping (720 ILCS 5/26--4 (West 2004)).
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Finally, in determining whether an image is "lewd" within the meaning of the child-
pornography statute, the de novo standard of review applies. Lamborn, 185 Ill. 2d at 590. This
standard has been criticized. See Lamborn, 185 Ill. 2d at 598 (Heiple, J., dissenting); Lewis, 305 Ill.
App. 3d at 677. Given that the analysis focuses on the content of the images, de novo review makes
sense. Quite simply, the trial court is in no better position to judge the content of a photographic
image than we are where the image is available to us. Indeed, the principle that we conduct de novo
review where facts are undisputed and only questions of law remain is a common one. See, e.g.,
City of Champaign v. Torres, 214 Ill. 2d 234, 241 (2005) ("The pertinent facts are uncontroverted.
The task before us is to determine how the relevant statutory terms and constitutional principles
should apply to those uncontroverted facts. Where, as here, the question on appeal is limited to
application of the law to undisputed facts, the standard of review is de novo"); People v. Kleutgen, 359 Ill.
App. 3d 275, 278 (2005) (DUI case); People v. Dieppa, 357 Ill. App. 3d 847, 849 (2005) (validity of
search); Farris v. Industrial Comm'n, 357 Ill. App. 3d 525, 527 (2005) (wage determination under
Worker's Compensation Act). Here, not only are the facts undisputed, but we are able to observe the
alleged crime, that is, the images, firsthand. There is no reason to defer to the trial court's
determination on this matter.
With these standards in mind, we now turn to the images at issue in this case. The first factor
we must consider is "whether the focal point of the visual depiction is on the child's genitals."
Lamborn, 185 Ill. 2d at 592. Defendant concedes that there are times where all that is seen is the
babysitter's genitals. However, he points out that at other times, her entire body is visible and at still
others, nothing is visible save the bathroom itself. Defendant's argument requires us to consider a
preliminary question: are we to consider the tape as a whole or is it proper to focus upon particular
images such that one portion of the tape may be lewd while another may not? We believe the latter
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approach is correct. Ferber provides sound guidance on this point. In that case, the Supreme Court
made the following observation: "[A] work which, taken on the whole, contains serious literary, artistic,
political, or scientific value may nevertheless embody the hardest core of child pornography. 'It is irrelevant to
the child [who has been abused] whether or not the material *** has a literary, artistic, political or social value.'
[Citation]." Ferber, 458 U.S. at 761, 73 L. Ed. 2d at 1125, 102 S. Ct. at 3356-57. In the present
case, it is similarly irrelevant that portions of the tape show nothing but the bathroom itself. The
presence of such passages on the tape does not serve to dilute other portions where the babysitter
appears naked. We conclude, therefore, that it is proper to consider portions of the tape individually
and determine whether they, in themselves, are lewd.
Having rejected defendant's premise that the videotape should be judged in its entirety, his
concession that "there are times that all that is seen on the videotapes are the minor's vagina or
buttocks" becomes dispositive. Since there are times in which "the focal point of the visual
depiction is on the child's genitals" (Lamborn, 185 Ill. 2d at 592), this factor weighs in favor of
finding that the images are lewd.
The next factor is "whether the setting of the visual depiction is sexually suggestive, i.e., in a
place or pose generally associated with sexual activity." Lamborn, 185 Ill. 2d at 592. It is, perhaps,
debatable whether a bathroom is a place "generally associated with sexual activity."
However, Lewis teaches that a more substantial inquiry is necessary. In Lewis, this court
observed the following: "Regarding factor two, although the setting is a bedroom, this
fact is not used to suggest sexual activity. A made-up bed appears in the background without
any indication that the bed has any sexual meaning in the photo." Lewis, 305 Ill. App. 3d at
678.
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A bedroom is certainly more closely associated with sexual activity than a bathroom, yet even
regarding a bedroom, the Lewis court considered the overall tone of the image. Applying the same
analysis in this case, there is nothing sexually suggestive about the setting of the tape. While a
bathroom may be associated with sexual activity in some circumstances, in this case, where the
victim was bathing an infant, the "setting" is not sexually suggestive. Indeed, the State does not
seriously contest this prong.
Third, we must determine "whether the child is depicted in an unnatural pose, or in inappropriate
attire, considering the age of the child." Lamborn, 185 Ill. 2d at 592. Defendant asserts that there is
nothing unnatural about the activities that take place in the videotape. Considering the images in
themselves, according to defendant, the activity depicted could simply be a young mother bathing
with her infant. The State's response goes seriously awry at this point. The State argues that
assuming that there was a familial relationship between the infant and the person bathing her, and
further assuming that a mother would bathe with her infant, the images at issue "are not the
spontaneous type of photograph taken by parents of their young child bathing." Instead, the State
continues, "they are the premeditated, secretive videotapes of a fully-developed, completely naked,
14 or 15 year old neighbor who had been duped by defendant into bathing with his daughter."
Indeed, the State concludes that this is so because the images "involve[] a naked minor not related to
the baby." The State's argument is ill-taken in that it relies on how the tape was made (which, as
noted previously, constitutes a different crime) and other information extraneous to the images
themselves. That the person holding the infant had been duped cannot be known from the images
themselves, nor can the fact that she was a neighbor. Moreover, as defendant points out, "[n]udity is
appropriate for bathing." This factor does not support a finding that the images defendant produced
are pornographic, because the victim is not depicted in an unnatural pose. However, to say that the
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activity in which the victim engaged is natural is not the same thing as saying that the images
themselves are natural. That consideration, however, is best addressed in the context of the sixth
prong.
The fourth factor we must consider is "whether the child is fully or partially clothed, or
nude." Lamborn, 185 Ill. 2d at 592. Defendant properly does not contest this factor. Accordingly,
this factor favors a finding that the images defendant produced are pornographic.
The fifth factor is "whether the visual depiction suggests sexual coyness or a willingness to
engage in sexual activity." Lamborn, 185 Ill. 2d at 592. The parties and the trial court focused upon
one occurrence on the videotape where the babysitter appeared to touch the area of her vagina and
then placed her finger in her mouth. On another occasion, the babysitter appeared to touch her
genitals. The trial court found that though the conduct in question was innocent, it still could
suggest sexual coyness and a willingness to engage in sexual activity. Our viewing of this portion of
the tape reveals nothing of the sort. Indeed, this conduct was, as defendant suggests, something that
people sometimes do in the bathroom. Therefore, this factor weighs against a finding that the
videotape contains pornographic images.
We come, at last, to the sixth factor, "whether the visual depiction is intended or designed to
elicit a sexual response in the viewer." Lamborn, 185 Ill. 2d at 592. This factor has proven quite
difficult to apply. Two problems arise: first, intended or designed by whom, and, second, who is the
viewer. Both appear to conflict with the directive that "[a] determination that a photograph
constitutes child pornography focuses on the photograph itself." Lamborn, 185 Ill. 2d at 594. The
first seems to require an inquiry into a defendant's state of mind, and the second appears to focus
upon the reactions of viewers of the image. These things, however, are external to the image itself.
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Indeed, some courts struggling to apply the sixth factor set forth in Dost have virtually
abandoned it. Both the First and Third Circuits of the Federal Court of Appeals have come to the
following conclusion: "We believe that the sixth Dost factor, rather than being a separate substantive inquiry
about the photographs, is useful as another way of inquiring into whether any of the other five Dost factors are
met." United States v. Villard, 885 F.2d 117, 125 (3rd Cir. 1989); see United States v.
Amirault, 173 F.3d 28, 35 (1st Cir. 1999). Indeed, this court conducted such an analysis in
Lewis, 305 Ill. App. 3d at 678, essentially determining that the sixth factor did not indicate that the
image at issue was pornographic, because the second and fifth factors did not. While treating the
sixth factor in this manner poses no conceptual difficulties regarding deviating from the four corners
of the image, it really adds nothing to the analysis and deprives the sixth factor of any true content.
Contrary to the First and Third Circuits, we do not see how revisiting the first five factors in the
guise of applying the sixth is a particularly useful exercise.
As for the first problem--intended or designed by whom--the resolution is simple enough.
Given that the image must be judged on its own terms, a defendant's subjective intentions are
irrelevant. Thus, the inquiry is necessarily limited to what the image itself says about itself. Put
differently, only the characteristics of the image are relevant to determining whether it was created
to evoke a sexual response in the viewer. Moreover, just as a defendant's subjective intentions
cannot condemn an otherwise innocent image, neither can they save an otherwise pornographic one.
The image must be evaluated solely on its own terms. Lamborn, 185 Ill. 2d at 594.
Turning to the second problem--the identity of the viewer--our supreme court, while
emphasizing that whether a defendant is aroused by an image is not relevant, held that "viewer"
refers to the objective viewer. Lamborn, 185 Ill. 2d at 594. If one were to take that holding to
require an analysis of how the average, ordinary person would react to the image, the problem of
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departing from the four corners of the image remains. The average person's reaction, like the
subjective reaction of an individual pedophile, is something external to the image itself.
Furthermore, determining whether an image is lewd by reference to whether a sexual
response would be elicited in an ordinary person (or perhaps an ordinary pedophile) creates a further
problem. In Ferber, the Supreme Court held that "[t]he category of [depicted] 'sexual conduct'
proscribed must also be suitably limited and described." Ferber, 458 U.S. at 764, 73 L. Ed. 2d at
1127, 102 S. Ct at 3358. Trying to determine what response an ordinary person would have to an
image invites unguided speculation and undermines the balance of the analysis set forth in Dost.
After carefully applying the first five factors, a court would then consider the reaction of an ordinary
person without any concrete guidance whatsoever. Proceeding in this manner would run afoul of
Ferber.
Moreover, why the reaction of an ordinary person is relevant to determining whether an
image is child pornography is unclear. Cf. People v. Spargo, 103 Ill. App. 3d 280, 287 (1982) ("For
example, if the court determines that the material is designed for the specially susceptible audience
of pedophiles, must the court then determine that the material is 'patently offensive' and 'lacks serious literary,
artistic, educational, political or scientific purpose or value' to the average pedophile, or must the court make
those determinations with reference to the 'ordinary adult'?"). It would seem that child pornography
would not elicit a sexual response in an ordinary person, as an ordinary person is not a pedophile. In
the context of obscenity law, the United States Supreme Court was confronted with a similar
argument:
"Indeed, appellant's sole contention regarding the nature of the material is that some of the
books involved in this prosecution, those depicting various deviant sexual practices,
such as flagellation, fetishism, and lesbianism, do not satisfy the prurient-appeal requirement
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because they do not appeal to a prurient interest of the 'average person' in sex, that 'instead of
stimulating the erotic, they disgust and sicken.' " Mishkin v. New York, 383 U.S. 502, 508, 16 L.
Ed. 2d 56, 61-62, 86 S. Ct. 958, 963 (1966).
The Supreme Court rejected this argument, explaining:
"Where the material is designed for and primarily disseminated to a clearly defined
deviant sexual group, rather than the public at large, the prurient-appeal requirement of the
Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the
prurient interest in sex of the members of that group." Mishkin, 383 U.S. at 508, 16 L. Ed.
2d at 62, 86 S. Ct. at 963.
It cannot be that the sixth factor of the Dost test requires a finding that an image would elicit a
sexual response in an ordinary person in order for that factor to support a finding that an image
constitutes child pornography. As the Supreme Court recognized in the context of obscenity, such a
standard makes no sense. Ordinary people are not sexually stimulated by child pornography.
Taking "viewer" to refer to the ordinary pedophile is not satisfactory for several reasons.
One commentator recognized the following problem: "But how are we to get inside the head of the
pedophile and to see the world from his eyes?" A. Adler, Inverting the First Amendment, 149 U.
Pa. L. Rev. 921, 955 (2001). Moreover, if the criterion is whether a pedophile would find an
image sexually stimulating, virtually any image of a child could be classified as child pornography.
See 149 U. Pa. L. Rev. at 956 ("In fact, it is arguable that when viewed from the perspective of
pedophiles, all children could be erotic"). Thus, considering the objective viewer to be an ordinary pedophile
creates other problems. In addition to departing from the four corners of the image and inviting unguided
speculation, such a standard puts the trier of fact in the position of having to discern the mental state of a deviant
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group on a matter alien to the average person's understanding. It also puts numerous obviously
nonpornographic images at risk of being classified as pornography.
Indeed, the reaction of the "ordinary person" or the "ordinary pedophile" cannot be what the supreme
court intended when it held that the "viewer" of the sixth prong is the "objective viewer." (Emphasis added and in
original.) Lamborn, 185 Ill. 2d at 594. Either formulation conflicts with the court's holding that the
image be evaluated on its own terms. Thus, the court must have meant something else.
The only plausible meaning to ascribe to the term that limits the analysis to the four corners of the image
is point of view. That is, the question is whether the characteristics of the image invite the viewer to see the
image from a particular perspective. "Point of view" is defined as, inter alia, "a particular position (as in space,
time, development) from which something is considered or evaluated: STANDPOINT, VIEWPOINT Dfrom
the point of view of a child, many things in the adult world are mysteriousE." (Emphasis added and in original.)
Webster's Third New International Dictionary 1750 (2002). As the definition includes the
"development" of an individual, as exemplified by the reference to the "point of view of a child," it
is clear that "point of view" refers to both the physical-spatial orientation of the viewer toward an
object and the mental condition of the viewer insofar as it affects the way the viewer sees the object.
An image may or may not invite a viewer to see an object from a particular point of view.
In the world of art, the concept is well known. One art dictionary defines the term, in
relevant part, as follows: "A position or angle from which something is observed or considered, and
the direction of the viewer's gaze; a standpoint which is either a physical location or one in the mind.
*** A manner of viewing things; an attitude. The attitude or outlook of a narrator or character in a
piece of literature, a movie, or another art form." http://www.artlex.com/pm.html. The same source
defines "attitude," as used in the above definition, as "[a] mental position (feeling or emotion)
concerning a fact or a state; a state of mind; a point of view or an outlook."
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http://www.artlex.com/aru.html. Often, the point of view from which the viewer sees the image is a
result of the characteristics of the image itself. See K. O'Neill, The Ambush Interview: A False
Light Invasion of Privacy?, 34 Case W. Res. L. Rev. 72, 87 (1983) ("The interviewee's credibility
may be further undermined by the effect of lighting, camera angle, camera movement, and sound
recording. The 'stalking' movement of the handheld camera as it aggressively approaches the subject
may contribute to viewer perception of his guilt, or the cameraman may photograph the subject from
a low angle to create a 'sinister' look"). Similarly, a photographic image might place "its viewer in
an epistemically privileged position, one step removed from the eyewitness." L. Harmon, Fishing
Deep Waters: Tributes & Commentaries: The Canyon of Doubt: John William Corrington's the Risi's
Wife, 26 Legal Stud. Forum 859, 863 (2002). Moreover, images themselves establish a point of
view regardless of their creator's intent. Cf. P. Quint, Free Speech and Private Law in German
Constitutional Theory, 48 Md. L. Rev. 247, 300 n.173 (1989) ("Moreover, the
documentary form is particularly dangerous because the film's point of view is often accepted as a
representation of reality"). Quite simply, artistic images affect their viewers. See J. Nivala, The
Landscape Art of Daniel Urban Kiley, 29 Wm. & Mary Envtl. L. & Pol'y Rev. 267, 322 (2005),
quoting T. Joffrain, Deriving a (Moral) Right for Creators, 36 Tex. Int'l L.J. 735, 785 (2001) and V.
Zlatarski, "Moral" Rights and Other Moral Interests: Public Art Law in France, Russia, and the
United States, 23 Colum.-VLA J.L. & Arts 201 (1999) ("If we accept 'the notion that "art is expression,"
something to "express feeling and transmit understanding" no matter the medium,' then landscape design is
art--visual art. It is also public art, which 'does not merely present a collection of formal aesthetic
attributes; it alters its environment, affects its viewer, and forges moral meaning' "); S. Nahmod,
Artistic Expression and Aesthetic Theory: The Beautiful, The Sublime, and The First Amendment,
1987 Wis. L. Rev. 221, 256 (1987) ("Moreover, while nonrepresentational art often involves
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the use of forms chosen by the artist to create a certain feeling in the viewer, these forms also reflect
the artist's view of the world"). Visual art consists of images, and, while it would be a stretch to call
what defendant created art in the same sense that it would be to call candid family photographs art
(at least in the traditional sense), any image might place the viewer into a particular point of view.
Returning to the world of the law, a more concrete example might prove more helpful. In
obscenity prosecutions, the question of whether a work has some redeeming value is a part of the
analysis. See People v. Page Books, Inc., 235 Ill. App. 3d 765, 773 (1992). In City of Chicago v.
Geraci, 46 Ill. 2d 576, 583 (1970), the question arose as to whether a 10-page introduction by a
doctor that "purport[ed] to place the contents of an [otherwise obscene] book into some psychological perspective"
vested the book with some redeeming value such that it fell within the protection of the first amendment. In
essence, the defendant was arguing that the introduction altered the nature of the book because it altered the point
of view from which the viewer would perceive the material. Although the supreme court ultimately rejected the
defendant's argument, finding the introduction a "hollow subterfuge," it took the argument seriously.
Geraci, 46 Ill. 2d at 583-84. If, in fact, the introduction had not been simply a ruse to escape an
obscenity prosecution, the material could not have been deemed obscene. This is solely because the
introduction would have created an atmosphere where the reader would have been encouraged to
perceive the balance of the book from an appropriate point of view. Hence, the point of view in which a
work places a viewer is a characteristic of the work itself and can change the very nature of the work.
If the sixth factor of Dost refers to the point of view, if any, in which the image places the
viewer, the problems set forth above are largely avoided. Because the perspective of the viewer is
determined from the characteristics of the image, there is no reference to matter outside of the four
corners of the image. Similarly, the inquiry does not focus upon the hypothetical reaction of the
average viewer or the average pedophile, which also lies outside of the image. Indeed, reaction per
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se becomes irrelevant. The inquiry does not focus upon the reaction of a viewer, objective or
otherwise, having been invited to view the work from a certain point of view. It simply asks, in
which point of view does the image place the viewer? This approach does not require the trier of
fact to ascertain the state of mind of a pedophile. Moreover, it avoids the problem of transmuting
otherwise ordinary images into child pornography simply because they might arouse a pedophile.
Thus, we believe that the proper inquiry focuses upon whether the image invites the viewer to
perceive the image from some sexualized or deviant point of view. Cf. United States v. Wiegand,
812 F.2d 1239, 1244 (9th Cir. 1987) ("[L]asciviousness is not a characteristic of the child
photographed but of the exhibition which the photographer sets up for an audience that consists of
himself or likeminded pedophiles" (emphasis added)). As noted above, not all of the Dost factors
need be present in order to find that an image is child pornography. Lamborn, 185 Ill. 2d at 592. It
may turn out that in the majority of cases, this factor will have little application. However, our
approach has the virtue of restoring to the sixth factor some content independent of the first five, and
it confines the analysis to the four corners of the image. In certain circumstances it may prove a
useful tool for evaluating a particular image. This is one such case.
In the present case, we must first remember that we are assessing images. We are not simply
deciding whether a naked teenaged girl bathing a naked infant is lewd. Indeed, the conduct depicted
is properly assessed under the third prong of Dost. Lamborn, 185 Ill. 2d at 592. Instead, we must
determine whether the videotape that defendant produced is lewd. Our final inquiry to this end is whether the
images invite the viewer to see the activity on the tape from some sexualized or deviant point of view. We
conclude that they do.
Essentially, the tape places the viewer in the role of voyeur. There is no narrative or plot.
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The images are not a scene connected to anything else. 1 In watching the tape, the viewer stands in
relation to the victim as would a peeping tom. This point of view is reinforced by the fact that the
victim does not react to the camera whatsoever. Whether an image is candid or posed has been
deemed relevant in determining whether an image is lewd. See Villard, 885 F.2d at 125; Doe
v. Chamberlin, 139 F. Supp. 2d 637, 648 (M.D. Pa. 2001). Generally, as suggested by the third
factor, certain poses would support a finding that an image is lewd. However, where, as here, the
viewer is placed in the point of view of a voyeur, that the images are candid contributes to their
lewdness. Because the victim does not react, the image creates a sense of covert observation that
would not otherwise exist.
Voyeurism is sexually motivated conduct, and it is recognized as deviant behavior. See In re
Marquardt, 100 Ill. App. 3d 741, 745 (1981) ("In addition to drug abuse, the following are classified as
mental disorders in various editions of DSM: sexual deviations, including homosexuality, fetishism, pedophilia,
voyeurism"); People v. Penney, 7 Ill. App. 3d 191, 197 (1972) ("The story is replete with accounts of
intercourse, rape, cunnilingus, voyeurism, fellatio, lesbianism and other abnormal sexual acts"). Thus, by
placing the viewer in the role of voyeur, the images become sexualized. Moreover, they are
sexualized in a way consistent with deviant behavior.
1
We are cognizant that, under Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct. at
3358, "the material at issue need not be considered as a whole." We do not here mean to suggest
that an otherwise pornographic image could be saved by the balance of a work. However, here, we
are not concerned with balancing the value of a work as a whole with a particular scene, as in an
obscenity case. We are asking whether the overall nature of the work colors the images themselves.
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Here, that the point of view in which the viewer is placed leads to the conclusion that the
tape is lewd can be seen by comparing it with a certain photograph at issue in Lamborn. In that case,
the supreme court determined that the photograph was not lewd. The court explained, "This
photograph is best described as capturing an uninhibited moment of adolescent spontaneity, in which
two teenage girls whimsically pull off their bikini tops while swimming together." Lamborn, 185 Ill.
2d at 593. In other words, the photograph was of the sort that friends might take of friends. The
videotape at issue here is of a totally different nature. These are not the type of image described in
Lamborn, nor do they bear any similarities with the sort of photograph a parent might take of a
young child bathing. It is different because it places the viewer in the position of a voyeur rather
than that of a parent observing a young child bathing or that of a friend, as the picture suggested in
Lamborn. Accordingly, this prong of Dost indicates that the images defendant created are lewd.
In sum, the first, fourth, and sixth factors all indicate that the videotape defendant produced is lewd and
therefore child pornography within the meaning of section 11--20.1 (720 ILCS 5/11--20.1 (West 2002)).
The victim was fully nude, the tape contained images that focused upon her genitalia, and the characteristics of the
tape place the viewer in the perspective of a voyeur. Three factors, the second, third, and fifth, militate for a
different conclusion. The setting was not sexually suggestive, the victim was not depicted in an unnatural pose or
attire, and the victim did not exhibit sexual coyness or a willingness to engage in sexual activity. However, given
the voyeuristic nature of the videotape, the fifth factor is entitled to little weight. One simply would not expect
the victim to exhibit sexual coyness or a willingness to engage in sexual activity while engaged in normal activity.
The fact that she exhibited neither, under such circumstances, does not undermine the lewd nature of the
videotape. Likewise, that the images were not posed does not undercut the voyeuristic nature of the images.
Considering the totality of the videotape in light of the six considerations articulated in Dost, we conclude that
the tape is lewd. Therefore, we affirm defendant's conviction.
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In a related argument, defendant contends that the legislature did not intend section 11--20.1 (720
ILCS 5/11--20.1 (West 2002)) to apply to what he terms "peeping tom" cases such as this one. As
evidence of this intent, he compares section 11--20.1 to new amendments to section 26--4 of the
Code (720 ILCS 5/26--4 (West 2004)), which make unlawful videotaping of a minor a felony in certain
circumstances, and section 11--20.2 of the Code, which imposes an obligation upon film processors to report
to a peace officer photographic images of minors engaged in sexual conduct (720 ILCS 5/11--20.2
(West 2004)). Defendant claims that these statutes should be read in pari materia with section 11--
20.1.
The principle that statutes that relate to the same subject should be read in pari materia is a principle of
statutory construction. See Mowen v. Holland, 336 Ill. App. 3d 368, 374 (2003).
Therefore, the rule applies only when it is necessary to resolve a statutory ambiguity. People v. Aleman,
355 Ill. App. 3d 619, 626 (2005). Defendant has not attempted to establish that section 11--
20.1 is ambiguous in any way. Thus, absent an ambiguity, it is unnecessary for us to construe the statute.
Before concluding this portion of this opinion, we note that defendant has set forth, as a separate
argument, that the trial court erred by allowing evidence regarding the circumstances under which the images were
produced. As is clear from the above discussion, we agree with this contention. It does not, however, provide
a basis for reversal. Because we are conducting de novo review, our conclusion that the images at issue here
constitute child pornography was arrived at independently of and without deference to the trial court's decision.
We did not consider evidence external to the images in reaching this conclusion. It is well settled that we may
affirm on any basis apparent in the record. People v. Braggs, 209 Ill. 2d 492, 519 (2003).
Finally, defendant also contends that his sentence is excessive. The propriety of a sentence is a matter
lying within the discretion of the trial court, and we will not interfere with that discretion unless it is abused.
People v. Roberts, 338 Ill. App. 3d 245, 251 (2003). An abuse of discretion occurs where
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no reasonable person could agree with the position taken by the trial court. People v. Allen, 351 Ill. App.
3d 599, 605 (2004). Indeed, a trial court, as it has the opportunity to observe a defendant and hear
evidence firsthand, is in the best position to take into account such things as the defendant's character, demeanor,
credibility, social environment, and habits; therefore, the trial court has wide latitude in imposing a sentence so
long as it does not ignore relevant mitigating evidence or consider improper factors in aggravation. People v.
Bilski, 333 Ill. App. 3d 808, 819 (2002). A court of review, then, may not simply reweigh the
evidence and substitute its judgment for that of the trial court. People v. Streit, 142 Ill. 2d 13, 19
(1991). Where mitigating evidence has been presented, the trial court is presumed to have considered it.
People v. Dominguez, 255 Ill. App. 3d 995, 1004 (1994).
Defendant asserts that he is not simply asking this court to reweigh the evidence that the trial court
considered; however, a reading of his argument reveals that that is exactly what defendant is doing. Defendant
contends that his sentence is excessive because: (1) he has no criminal background; (2) he was sexually abused
as a child; (3) he was a poor student who went on to become a successful businessman; (4) a psychologist and
a doctor who specializes in treating sex offenders opined that he was a low risk to reoffend and a good candidate
for a community-based plan; (5) the sentence will create an undue hardship for his five children, who depend on
his income and support; (6) he has a good general character and attitude; and (7) he has been sober for over
16 years and is an active participant in Alcoholics Anonymous, where he has helped other people. After
setting forth these points, defendant simply argues that "it defies logic that this defendant has never touched
anyone improperly (i.e., did not commit an Aggravated Criminal Sexual Abuse, which is probational) and failed
to get the minimum four-year sentence." Defendant is, in essence, asking us to reconsider the evidence
presented to the trial court (and, perhaps, to conduct a cross-comparison analysis with the crime of aggravated
criminal sexual abuse (720 ILCS 5/12--16 (West 2004)); however, such an argument is no longer
viable in light of People v. Sharpe, 216 Ill. 2d 481 (2005)).
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In addition to asking us to do something we cannot, that is, reweigh the evidence, defendant's argument
ignores several aggravating factors upon which the trial court relied. Notably, defendant fails to mention the
trial court's finding that defendant's conduct threatened serious emotional harm to others and that a need existed
to deter defendant and other people from engaging in the conduct in which defendant engaged. Thus, contrary to
the implication of defendant's argument, not all considerations militated for a minimum sentence.
Indeed, the trial court expressly relied upon numerous considerations. It began its ruling by stating that
it had considered all of the evidence as well as the factual basis for the pleas defendant entered on the unlawful
videotaping counts. It stated that it considered the presentence investigation and the reports provided by the
psychologist and the doctor who specializes in treating sex offenders. The trial court acknowledged the financial
impact of incarceration, both on the State and on defendant's children. The court next noted defendant's
childhood, including the abuse defendant suffered and educational difficulties he experienced. It then credited
defendant with relieving people of the burden of testifying by pleading guilty on the unlawful videotaping counts, and
it noted that this indicated an acceptance of responsibility. The court observed that defendant cared for and
supported his children. Additionally, the court stated that it considered defendant's "industry in putting together a
business." Finally, the court noted defendant's lack of a criminal history. In aggravation, the court first found
that defendant's behavior threatened serious emotional harm to others. It also expressly cited the need for
deterrence, regarding both defendant and others.
The court added that it was considering the arguments of the attorneys as to sentencing alternatives;
defendant's statement, in which he indicated remorse; and the victim impact statements. The court noted that it
had heard from people who testified that defendant is a person of integrity; that he puts his children first; that he is
caring and considerate; and that he was helpful as a brother, insightful as a mentor, and helpful to others. The
court indicated that it had read statements submitted upon defendant's behalf as well as information received from
experts on addiction.
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The court then went on to note the effect defendant's actions had upon his victims. 2 It observed that
the victims felt betrayed, ashamed, violated, embarrassed, and angry. Also, many testified that they had started
to feel guilty, though they had done nothing wrong. The court further noted that several indicated that they felt
fear and that for the rest of their lives they may always fear whether someone is filming them or watching them.
The court then again noted defendant's expression of remorse, but stated that "you certainly have a long
way to go." It also noted defendant's participation in Alcoholics Anonymous. Finally, before pronouncing
defendant's sentence, it reiterated that it was considering "all the factors that [it] was required to consider." The
court then sentenced defendant to eight years' imprisonment.
We cannot say that no reasonable person could agree with the trial court that an eight-year sentence
was appropriate. Defendant correctly points out that substantial mitigating circumstances exist. There were,
however, substantial aggravating factors as well. Thus, a reasonable person could conclude that a sentence in
excess of the minimum was warranted. Moreover, defendant could have been sentenced to up to 15 years'
imprisonment, so the sentence defendant received was closer to the minimum for a Class 1 felony. See 730
ILCS 5/5--8--1 (West 2002). Defendant was thus shown some leniency. Defendant's assertion,
that he is not asking us to reweigh the evidence but simply to conclude that the trial court abused its discretion in
2
In addition to the babysitter discussed above, defendant's pleas of guilty to unlawful videotaping involved
other victims.
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No. 2--05--0393
light of all the circumstances of the offense and his personal history, is ill-founded. Making such a determination
would appear to us to involve reweighing the evidence, and defendant does not explain how it would not. We
therefore must reject defendant's argument.
In light of the foregoing, we hold that defendant was properly convicted and sentenced in the
trial court below. The videotape defendant produced constitutes child pornography, and the
sentence defendant received was not excessive. Accordingly, the judgment of the circuit court of
Lake County is affirmed.
Affirmed.
HUTCHINSON and KAPALA, JJ., concur.
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