State v. Madison Hansen ( 2022 )

April 27, 2022
Supreme Court
No. 2019-22-C.A.
(P2/16-470A)
State :
v. :
Madison Hansen. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2019-22-C.A.
(P2/16-470A)
(Dissent begins on
page 37)
State :
v. :
Madison Hansen. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Goldberg, for the Court. This case came before the Supreme
Court on December 1, 2021. The defendant, Madison Hansen (defendant or
Hansen), appeals from a judgment of conviction of one count of possession of
child pornography, following a bench trial. The trial justice found, beyond a
reasonable doubt, that the defendant knowingly possessed digital images depicting
minors engaging in sexually explicit conduct, in violation of G.L. 1956 § 11-9-1.3.
The defendant asserts that the conviction violates his First Amendment right to free
speech because, he contends, the images he possessed do not constitute child
-1-
pornography. For the reasons stated in this opinion, the defendant’s appeal is
denied, and the judgment of conviction is affirmed.
Facts and Travel
The defendant’s conviction arose from his knowing possession of computer
hard drives or digital storage media containing seventeen computer files of images.
The defendant stipulated prior to trial to the knowing possession of these materials.
In April 2018 the case proceeded to a jury-waived trial; the sole issue before the
Superior Court was whether the state had proven beyond a reasonable doubt that
some or all of the digital images constituted child pornography in accordance with
§ 11-9-1.3.1 The only evidence presented to the trial justice were the images that
formed the basis of the charges and Hansen’s stipulation that he knowingly
1
Pursuant to G.L. 1956 § 11-9-1.3(a)(4), any person who “[k]nowingly possess[es]
any * * * computer file or any other material that contains an image of child
pornography” is in violation of the statute.
“Child pornography” is defined as “any visual depiction, including any
photograph * * * or computer or computer-generated image * * * of sexually
explicit conduct where * * * [s]uch visual depiction is a[n] * * * image of a minor
engaging in sexually explicit conduct[.]” Section 11-9-1.3(c)(1)(ii).
“‘Sexually explicit conduct’ [includes] actual * * * [g]raphic or lascivious
exhibition of the genitals or pubic area of any person[.]” Section 11-9-1.3(c)(6)(v).
“Graphic” is defined thereunder to mean “that a viewer can observe any part
of the genitals or pubic area of any depicted person or animal during any part of
the time that the sexually explicit conduct is being depicted.” Section
11-9-1.3(c)(8).
-2-
possessed the images. After the parties rested, and prior to the trial justice’s
issuing a bench decision, the parties submitted written closing arguments.
On May 30, 2018, the parties reconvened for a bench decision. The trial
justice found beyond a reasonable doubt that the images depicted minors and, after
reviewing six of the seventeen images, concluded that those six images depicted
minors engaging in sexually explicit conduct, as defined in § 11-9-1.3, amounting
to a lascivious exhibition of the genitals or pubic area. The trial justice found it
unnecessary to analyze the six images under any other definition of sexually
explicit conduct and did not make any findings concerning the remaining eleven
images. Based on the six images, Hansen was convicted of one count of
possession of child pornography and sentenced to five years at the Adult
Correctional Institutions, with one year to serve on home confinement and the
balance suspended, with probation.2 The defendant filed a timely appeal.
Standard of Review
Generally, “[a] judgment in a nonjury case will be reversed on appeal when
it can be shown that the trial justice misapplied the law, misconceived or
overlooked material evidence or made factual findings that were clearly wrong.”
2
The defendant did not move to dismiss the February 23, 2016 criminal
information charging him with one count of possession of child pornography in
violation of § 11-9-1.3 pursuant to Rule 29 of the Superior Court Rules of Criminal
Procedure, nor did he file a motion for a new trial pursuant to Rule 33 following
the issuance of the bench decision at which he was found guilty of that charge.
-3-
Lamarque v. Centreville Savings Bank, 22 A.3d 1136, 1139-40 (R.I. 2011)
(quoting Cathay Cathay, Inc. v. Vindalu, LLC, 962 A.2d 740, 745 (R.I. 2009)).
“A mixed question of law and fact is one in which the rule of law is
undisputed, and the issue is whether the facts satisfy the statutory standard.”
Johnston v. Poulin, 844 A.2d 707, 714 (R.I. 2004) (quoting Direct Action for
Rights and Equality v. Gannon, 819 A.2d 651, 662 (R.I. 2003)). While “[a] trial
justice’s findings on mixed questions of law and fact are generally entitled to the
same deference as the justice’s findings of fact[,]” Cummings v. Shorey, 761 A.2d
680, 684 (R.I. 2000), “we ‘review de novo * * * mixed questions of law and fact
insofar as those issues impact * * * constitutional matters[.]’” Foley v. Osborne
Court Condominium, 724 A.2d 436, 439 (R.I. 1999) (quoting State v. Campbell,
691 A.2d 564, 569 (R.I. 1997)); see State v. Lead Industries Association, Inc., 951
A.2d 428, 464 (R.I. 2008) (employing de novo review to “mixed questions of fact
and law that purportedly implicate a constitutional right”).
Specifically, when a party raises a First Amendment challenge, we “make an
independent examination of the whole record in order to make sure that the
judgment does not constitute a forbidden intrusion on the field of free expression.”
Lead Industries Association, Inc., 951 A.2d at 464 (quoting Bose Corporation v.
Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984)); see Roth v.
United States, 354 U.S. 476, 497 (1957) (Harlan, J., concurring in part and
-4-
dissenting in part) (stating that “a reviewing court must determine for itself
whether the attacked expression is suppressable within constitutional standards”);
see also United States v. Amirault, 173 F.3d 28, 33 (1st Cir. 1999) (applying de
novo review to an image found to depict child pornography); Commonwealth v.
Bean, 761 N.E.2d 501, 507 (Mass. 2002) (recognizing that “cases involving speech
under the First Amendment require independent appellate review of the offending
material to ensure that protected speech is not infringed”).
Discussion
Before this Court, defendant argues that the trial justice’s decision, deeming
the six images as depictions of lascivious exhibitions of genitals or pubic areas,
“fell short of the constitutional mark because it unlawfully encroached upon the
long-established prohibition of criminalizing non-sexualized images of the human
body, a protected form of speech.” Accordingly, the issue of whether defendant
maintains a First Amendment right to possess the images at issue—that is, whether
the images depict protected speech or they depict unprotected child pornography
within the meaning of § 11-9-1.3—is a mixed question of law and fact that is
entitled to our independent, de novo review.3 See Bean, 761 N.E.2d at 507
3
We pause to note that, in the context of a jury trial, it is incumbent upon the trial
justice to conduct a pretrial hearing to determine, in the first instance, whether the
depictions should be presented to the jury, with an immediate appeal of an adverse
decision. See United States v. Frabizio, 459 F.3d 80, 86 (1st Cir. 2006) (reviewing
images prior to consideration by the jury to determine if a reasonable juror could
-5-
(conducting an independent, de novo review of the material in an appeal following
a bench trial); see also Lead Industries Association, Inc., 951 A.2d at 464;
Johnston, 844 A.2d at 714.
A
Evolution of the Prohibition of Child Pornography
The United States Supreme Court opinion in New York v. Ferber, 458 U.S.
747 (1982), is the cornerstone to understanding whether a depiction falls within the
meaning of a statute that prohibits the production, distribution, or possession of
child pornography. See, e.g., United States v. Frabizio, 459 F.3d 80, 83 (1st Cir.
2006) (considering the interpretation of a child pornography statute in the context
of Ferber). This benchmark holding firmly established that child pornography is
“a category of material outside the protection of the First Amendment[.]” Ferber,
458 U.S. at 763.
In Ferber, the United States Supreme Court declared that the government
has a compelling interest—of “surpassing importance” to First Amendment
protections—in “safeguarding the physical and psychological well-being of
find the images to constitute lascivious exhibitions of the genitals or pubic area);
see also United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001) (noting that the
trial court “should conduct a preliminary review of whether materials offered by
the government for this purpose depict sexually explicit conduct as a matter of
law”); United States v. Knox, 32 F.3d 733, 738 (3d Cir. 1994) (holding a pretrial
hearing to determine if the indictment was sufficient on the issue of the exhibition
of the genitals or pubic area in the photographs).
-6-
[children]” and in preventing sexual exploitation and abuse of children. Ferber,
458 U.S. at 756-57. Precisely, the Supreme Court concluded that “the evil to be
restricted so overwhelmingly outweighs the expressive interests, if any, at stake” as
professed by the holder of child pornography.4 Id. at 763-64. The Supreme Court
also recognized that the distribution of child pornography created a permanent
damning record of the child, which was exacerbated by the circulation of the
material, such that in order to control production, the distribution network must be
closed. Id. at 759. Although the advertising, production, and distribution of child
pornography are driven by economic motivations, id. at 761, it is the possession of
child pornography that creates the market demand assigning value up that supply
chain. See United States v. Harris, 358 F.3d 221, 222 (2d Cir. 2004) (recognizing
that the local production of child pornography “feeds the national market and
stimulates demand” and its possession is indistinguishable).
4
New York v. Ferber, 458 U.S. 747 (1982), is not the first case where the United
States Supreme Court determined that the governmental interest in protecting the
welfare of children surpassed the interest of protecting the freedom of speech. See
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 749
(1978) (holding that the government’s interest in protecting the well-being of youth
by prohibiting indecent broadcasts surpassed the right to free speech); see also
Prince v. Massachusetts, 321 U.S. 158, 160-61, 164, 165, 168, 169, 170 (1944)
(holding that a statute prohibiting the use of a child to distribute literature on the
street did not offend the First Amendment); United States v. Wiegand, 812 F.2d
1239, 1243 (9th Cir. 1987) (recognizing that “[i]n the protection of children
otherwise privileged expressions may be affected”) (citing Pacifica Foundation,
438 U.S. at 749).
-7-
Under Ferber, all child pornography is considered unprotected from the
shield of free speech—“even that which is not obscene under the standard set forth
in Miller v. California, 413 U.S. 15 * * * (1973)[.]” Frabizio, 459 F.3d at 84(emphasis added) (citing Ferber, 458 U.S. at 761). In Miller, the Supreme Court
set forth basic guidelines for the trier of fact to determine whether material is
obscene, including:
“(a) whether the average person, applying contemporary
community standards would find that the work, taken as
a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable
state law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific
value.” Miller, 413 U.S. at 24 (internal quotation marks
and citations omitted).
After noting the substantial inapplicability of this test to the question of whether a
depiction can be considered child pornography, the Supreme Court in Ferber
drastically narrowed the Miller test as it relates to child pornography to sexual
conduct “adequately defined by the applicable state law” and added an element of
scienter. Ferber, 458 U.S. at 764, 765; see also Bean, 761 N.E.2d at 507-08
(determining that the fact that an image is neither obscene nor pornographic “is not
relevant on the question whether the nudity depicted falls within the scope of the
statutory definition”). As a result, in the context of
“works that visually depict sexual conduct by children[,]
* * * [a] trier of fact need not find that the material
-8-
appeals to the prurient interest of the average person; it is
not required that sexual conduct portrayed be done so in
a patently offensive manner; and the material at issue
need not be considered as a whole.” Ferber, 458 U.S. at
764.
After Ferber, a plethora of federal and state legislation was advanced based
on the compelling need to safeguard children from the dire consequences of sexual
exploitation. See Child Protection Act of 1984, 18 U.S.C. § 2251, as enacted by
Pub. L. No. 98-292, 98 Stat. 204, § 2; see also 98 Cong. Rec. S7197, S7198 (daily
ed. Mar. 30, 1984). Since then, significant judicial resources have been devoted to
the interpretation of child pornography statutes. See, e.g., Frabizio, 459 F.3d at 84,
85 (citing to multiple cases that have interpreted language of child pornography
statutes).
For instance, in United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), in
support of that court’s reasoning that a depiction falls within the meaning of a
lascivious exhibition, in accordance with 18 U.S.C. § 2256, the court characterized
the harms exposed in Ferber as a “trespass against the dignity of the child.”
Wiegand, 812 F.2d at 1245. In part, the court in Wiegand opined that:
“The crime punished by the statutes against the sexual
exploitation of children * * * is the offense against the
child—the harm to the physiological, emotional, and
mental health of the child, the psychological harm; the
invasion of the child’s vulnerability. These harms
collectively are the consequential damages that flow from
the trespass against the dignity of the child.
-9-
“* * *
“Human dignity is offended by the pornographer.
American law does not protect all human dignity; legally,
an adult can consent to its diminishment. When a child is
made the target of the pornographer-photographer, the
statute will not suffer the insult to the human spirit, that
the child should be treated as a thing.” Id. (internal
quotation marks and citations omitted).
In response to Ferber, Congress amended and renamed the Protection of
Children Against Sexual Exploitation Act of 1977 as the Child Protection Act of
1984, cited supra. The Child Protection Act of 1984 provided:
“The Congress finds that—
“(1) child pornography has developed into a highly
organized, multi-million-dollar industry which operates
on a nationwide scale;
“(2) thousands of children including large numbers of
runaway and homeless youth are exploited in the
production and distribution of pornographic materials;
and
“(3) the use of children as subjects of pornographic
materials is harmful to the physiological, emotional, and
mental health of the individual child and to society.” 18
U.S.C. § 2251, Congressional Findings, Pub. L. No. 98-
292, 98 Stat. 204, § 2.
Then, in enacting the Child Pornography Prevention Act of 1996, Congress
set forth further findings, providing, in part, that: “[T]he use of children in the
production of sexually explicit material * * * is a form of sexual abuse which can
result in physical or psychological harm, or both, to the children involved * * *
- 10 -
[and] causes * * * continuing harm by haunting those children in future years”;
“child pornography is often used as part of a method of seducing other children
into sexual activity”; “child pornography * * * invades the child’s privacy and
reputational interests * * * [by] haunt[ing] the minor for years to come”;
sexualized images of minors “encourag[e] a societal perception of children as
sexual objects and lead[s] to further sexual abuse and exploitation of them”; and
“the elimination of child pornography and the protection of children from sexual
exploitation provide a compelling governmental interest for prohibiting the
production, distribution, possession, sale, or viewing of visual depictions of
children engaging in sexually explicit conduct[.]” 18 U.S.C. § 2251, Congressional
Findings (1996).
In 2001 the Rhode Island General Assembly enacted § 11-9-1.3, which
closed a gap in the then-existing “[e]xploitation for commercial or immoral
purposes” provision of § 11-9-1, by criminalizing the possession of child
pornography.5 Compare § 11-9-1(b), (c), with § 11-9-1.3(a). The enactment of
§ 11-9-1.3 engrafted the “lascivious exhibition” language from its federal
counterpart. Compare § 11-9-1.3(c)(6)(v), with 18 U.S.C. §§ 2252(a), 2256.
5
Prior to the enactment of § 11-9-1.3, it was a violation of state law to produce,
sell, or distribute material depicting a minor engaging in sexual acts, pursuant to
§ 11-9-1, but a violation of federal law only to possess such material, 18 U.S.C.
§ 2252(a)(4)(B).
- 11 -
Therefore, when analyzing § 11-9-1.3, we look to the principles set forth in
Ferber and further developed across the nation. Cf. Narragansett Electric
Company v. Rhode Island Commission for Human Rights, 118 R.I. 457, 459-60,
374 A.2d 1022, 1023 (1977) (looking to the federal act for guidance relating to the
meaning of a state statute where the language was nearly identical). The salutary
goal of safeguarding the well-being of children by preventing sexual exploitation
are factors in the calculus of whether a depiction fits within the definition of
§ 11-9-1.3, and should serve as the focal point from which all other considerations
are measured. Thus, we are satisfied that, by adopting language identical to its
federal counterpart, the General Assembly intended that § 11-9-1.3 serve the same
purposes specifically expressed in 18 U.S.C. § 2251, and that those purposes
provide context to the phrase “lascivious exhibition” in the statute.
B
Statutory Interpretation, G.L. 1956 § 11-9-1.3
In discerning the meaning of statutory language, we look to the general
principles of statutory interpretation. See State v. Greenberg, 951 A.2d 481, 489
(R.I. 2008). “[I]t is this [C]ourt’s responsibility in interpreting a legislative
enactment to determine and effectuate the Legislature’s intent and to attribute to
the enactment the meaning most consistent with its policies or obvious purposes.”
Id. (quoting Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987)). “This is
- 12 -
particularly true where the Legislature has not defined or qualified the words used
within the statute.” Barrett v. Barrett, 894 A.2d 891, 897 (R.I. 2006) (quoting
D’Amico v. Johnston Partners, 866 A.2d 1222, 1224 (R.I. 2005)). First, we “look
to the plain and ordinary meaning of the statutory language[,]” and, “[i]f the
language is clear on its face, then the plain meaning of the statute must be given
effect and this Court should not look elsewhere to discern the legislative intent.”
Greenberg, 951 A.2d at 489 (quoting Henderson v. Henderson, 818 A.2d 669, 673
(R.I. 2003)).
Pursuant to § 11-9-1.3, the knowing possession of child pornography, which
is defined to include a visual depiction such as a digital image, “of a minor
engaging in sexually explicit conduct[,]” is a felony crime. Sections 11-9-1.3(a)(4),
11-9-1.3(c)(1)(ii).6 The definition of “sexually explicit conduct” includes a
6
Section 11-9-1.3 provides, in part, that: “It is a violation of this section for any
person to * * * [k]nowingly possess any * * * computer file or any other material
that contains an image of child pornography.” Section 11-9-1.3(a)(4). “Child
pornography” is defined as
“any visual depiction, including any photograph, film,
video, picture, or computer or computer-generated image
or picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct
where:
“(i) The production of such visual depiction involves
the use of a minor engaging in sexually explicit
conduct;
- 13 -
“lascivious exhibition of the genitals or pubic area of any person[.]”7 Section
11-9-1.3(c)(6)(v).
The determination of whether an image constitutes a lascivious exhibition is
a case-specific inquiry. See Frabizio, 459 F.3d at 85; see also Amirault, 173 F.3d at
32. The question of whether the materials at issue depict lascivious exhibitions of
the genitals or pubic area is generally left for the finder of fact, Frabizio, 459 F.3d
at 85, but “the meaning of ‘lascivious exhibition of the genitals [or pubic area]’ is
an issue of law.” United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001); see
United States v. Knox, 32 F.3d 733, 744 (3d Cir. 1994). Although left undefined in
the statute, the phrase “lascivious exhibition of the genitals or pubic area” has been
“(ii) Such visual depiction is a digital image,
computer image, or computer-generated image of a
minor engaging in sexually explicit conduct; or
“(iii) Such visual depiction has been created, adapted,
or modified to display an identifiable minor engaging
in sexually explicit conduct.” Section 11-9-1.3(c)(1).
7
Section 11-9-1.3(c)(6) defines “[s]exually explicit conduct” as
“(i) Graphic sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, or lascivious
sexual intercourse where the genitals, or pubic area of
any person is exhibited;
“(ii) Bestiality;
“(iii) Masturbation;
“(iv) Sadistic or masochistic abuse; or
“(v) Graphic or lascivious exhibition of the genitals or
pubic area of any person[.]”
- 14 -
addressed in numerous cases.8 Nevertheless, “[t]he dictionary definition [of
lascivious] is of little help in drawing lines.” United States v. Rivera, 546 F.3d 245,
249 (2d Cir. 2008) (footnote omitted).
“‘Lascivious’ is a ‘commonsensical term,’” Frabizio, 459 F.3d at 85(quoting Wiegand, 812 F.2d at 1243), and the question of whether an image
comports with this meaning is one in which a person “of reasonable intelligence,
guided by common understanding and practices” is capable of navigating.
Frabizio, 459 F.3d at 85 (quoting United States v. Freeman, 808 F.2d 1290, 1292
(8th Cir. 1987)). Although we undertake an independent review, we also recognize
that, unlike a credibility determination, “[t]he fact finder is in no better position to
evaluate the content and significance of the[] photographs than an appellate court.”
Bean, 761 N.E.2d at 507 n.15.
In the case at bar, all of the children in the images are completely naked,
with the exception of sneakers, sandals, or jewelry, and their pubic areas are
8
In the context of child pornography, the meaning of “lascivious” has been
equated with the term “lewd[.]” See Frabizio, 459 F.3d at 85 (citing United States
v. Adams, 343 F.3d 1024, 1035 (9th Cir. 2003)); see also Knox, 32 F.3d at 748
n.12; Wiegand, 812 F.2d at 1244. However, the word “lascivious” is commonly
substituted for the word “lewd” in order to avoid the inference that, to be
considered child pornography, an image must meet the obscenity standard
enunciated in Miller v. California, 413 U.S. 15 (1973). See Frabizio, 459 F.3d at84-85 n.7. It need not. See Ferber, 458 U.S. at 761, 764-65; see also Frabizio, 459
F.3d at 84-85 n.7; United States v. Dost, 636 F. Supp. 828, 831 (S.D. Cal. 1986)
(Dost I); 130 Cong. Rec. S3511 (daily ed. Mar. 30, 1984) (statement of Senator
Arlen Specter).
- 15 -
clearly visible and genitals are partially visible; the images capture the full-frontal
nude body of each child. There is no question in this case that the genitals or pubic
areas of the prepubescent girls in the images are on display, or in other words, that
there is an exhibition of the genitals or pubic areas. Thus, the only issue before us
is whether those exhibitions of the genitals and pubic areas are lascivious.
C
The Dost Factors
In support of their opposing arguments as to whether these images constitute
child pornography, the state and defendant rely upon the factors set forth in United
States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (Dost I), which were formulated
to determine whether an image portrayed a lascivious exhibition of genitals or
pubic area (Dost factors).9 Dost I, 636 F. Supp. at 832, aff’d sub nom. Wiegand,
812 F.2d 1239, cert. denied, 484 U.S. 856 (1987).
In Dost I, two defendants, Robert S. Dost and Edwin E. Wiegand, were
indicted for production and distribution of child pornography in violation of 18
U.S.C. § 2251(a) and 18 U.S.C. § 2252(a)(2). Dost I, 636 F. Supp. at 829-30.
Upon conviction, the defendants filed separate appeals, resulting in United States
9
In the Superior Court, both parties utilized the factors set out in Dost I as the basis
of their analysis of the images at issue, due to the guidance that Dost I has provided
throughout the country. The trial justice found the Dost factors to be highly
instructive and concluded that it was appropriate to consider these factors in his
determination of whether the images were lascivious.
- 16 -
v. Dost, 813 F.2d 1231 (9th Cir. 1987) (Dost II) and Wiegand, cited supra. In each
appeal the conviction was affirmed, and the United States Supreme Court denied
Wiegand’s petition for certiorari. Wiegand, 484 U.S. at 856. Both Dost I and
Wiegand are often looked to as guidance on the subject of child pornography and,
more specifically, for analysis of the term “lascivious[.]” See, e.g., Frabizio, 459
F.3d at 83, 84, 85, 87, 88, 89.
Although the Dost factors may provide “some guidance[,]” they are neither
exclusive, “comprehensive[,] nor necessarily applicable in every situation.”
Amirault, 173 F.3d at 32; see Frabizio, 459 F.3d at 87. Notably, the court in
Wiegand found that the Dost factors generously narrowed the meaning of
lascivious by going “beyond what is necessary to find the picture[s] within the
statutory definition.” Wiegand, 812 F.2d at 1244. The First Circuit has also
cautioned against an over-reliance on the Dost factors, recognizing the risk that
such reliance can lead to an “inappropriate[] limit[ation] * * * of the statutory
definition.” Frabizio, 459 F.3d at 88. “The statutory standard needs no
adornment.” Id. at 85. Because these factors “are not the equivalent of the
statutory standard of ‘lascivious exhibition[,]’ [they] are not to be used to limit the
statutory standard.” Id. at 90; cf. Ferber, 458 U.S. at 764 (limiting the Miller
obscenity standard to works that depict sexual conduct specifically defined by the
applicable state law). Embracing the same caution, we look to—yet we decline to
- 17 -
adopt—the factors set forth in Dost I and echo these cautionary observations. See
Frabizio, 459 F.3d at 90; see also Wiegand, 812 F.2d at 1244.
In Dost I, when “determining whether a visual depiction of a minor
constitute[d] a ‘lascivious exhibition of the genitals or pubic area[,]’” the court
looked to the following factors:
“1) whether the focal point of the visual depiction is on
the child’s genitalia or pubic area;
“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 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;
“6) whether the visual depiction is intended or designed
to elicit a sexual response in the viewer.” Dost I, 636 F.
Supp. at 832.
Importantly, in Dost I, the court also cautioned that there may be other factors
equally relevant in a particular case, such that the determination of lasciviousness
should be “based on the overall content of the visual depiction, taking into account
the age of the minor”; and that, in many instances, some factors may not apply. Id.(recognizing that, “because of [a child’s] innocence in matters sexual,” sexual
coyness may be presumed to be immaterial depending on the child’s age).
- 18 -
We note, however, that there are general principles that should be considered
in determining whether the totality of the depiction is lascivious. First, while
nudity alone does not constitute sexually explicit conduct, United States v. X-
Citement Video, Inc., 513 U.S. 64, 84 (1994) (Scalia, J., dissenting) (discussing 18
U.S.C. § 2256(c)); Osborne v. Ohio, 495 U.S. 103, 112 (1990), nudity is not a
necessary component of a lascivious exhibition of the genitals or pubic area. Knox,
32 F.3d at 737, 744, 746 (determining that “lascivious exhibition” should not be
conflated to mean nude or naked exhibition). In addition, the absence of a sexually
alluring look from a child “does not mean that an image is not lascivious[.]”
Frabizio, 459 F.3d at 89.
Significantly, “[i]n the context of the statute applied to the conduct of
children, lasciviousness 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 like-minded pedophiles[.]” Knox, 32 F.3d at 747 (quoting Wiegand, 812 F.2d at
1244); see United States v. Wolf, 890 F.2d 241, 247 (10th Cir. 1989) (holding that
“a sexually exploitative photograph of a child need not portray the victim in a pose
that depicts lust, wantonness, sexual coyness or other inappropriate precocity”)
(internal quotation marks omitted).
Also, while one blatantly lewd factor may be sufficient to consider an image
lascivious, a sliding-scale approach may require the presence of a number of
- 19 -
factors. See Frabizio, 459 F.3d at 88 (recognizing a split among circuits regarding
how many Dost factors must be present); see also Wolf, 890 F.2d at 245 n.6, 247
(holding that “not all of the Dost factors need be present in order for a sexually
exploitative photograph of a child to come within the constitutional reach of the
statute” and noting that the court did “not hold that more than one Dost factor must
be present”); United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989)
(concluding that “[a]lthough more than one factor must be present in order to
establish ‘lasciviousness,’ all six factors need not be present”); Dost I, 636 F. Supp.
at 832 (considering that a number of factors may create a “combined effect * * *
designed to elicit a sexual response in the viewer”).
This Court has yet to consider the proper standard for evaluating whether a
visual depiction is intended or designed to elicit a sexual response in the viewer—
whether one that considers the objective criteria of the photograph’s design or an
evaluation that considers the viewer’s subjective reaction to the photograph or
intent in viewing an image. See Amirault, 173 F.3d at 34-35. We are of the
opinion, however, that the subjective reaction or intent of the viewer implicates a
scienter element that is not required in the statute. See § 11-9-1.3; see also
Frabizio, 459 F.3d at 89 (declining to adopt a rule not required by the statute);
Amirault, 173 F.3d at 34, 35 (implementing a standard that looks to the objective
criteria of the photograph’s design and noting that “a focus on the photograph’s use
- 20 -
seems inconsistent with the statute’s purpose of protecting the child”); Villard, 885
F.2d at 125 (examining the photograph to determine its intended effect on the
viewer, rather than the viewer’s actual response). Therefore, we conclude that it is
appropriate to look to objective criteria within the composition to determine
whether a visual depiction is designed to elicit a sexual response in the viewer.10
Most notably, however, all factors must be considered in light of the purpose
that underlies criminalizing possession of child pornography, to protect children
from sexual exploitation, and in the context of advancing the state’s compelling
interest, to safeguard the well-being of children as proclaimed in Ferber. See
Ferber, 458 U.S. at 756-57; see also Commonwealth v. Rex, 11 N.E.3d 1060,
1069-70 (Mass. 2014) (considering “the Dost factors in the context of the
Legislature’s purpose in enacting [the child pornography statute], namely to protect
children from sexual exploitation”).
D
The Images
Before we turn to our independent review of the images at issue, we first
address Hansen’s assertions that the images before us merely portray nude beauty
10
In relation to the sixth Dost factor, whether the visual depiction is intended or
designed to elicit a sexual response in the viewer, courts have found this factor
elusive in the context of cases involving possession of child pornography and more
relevant in cases involving its production. See United States v. Rivera, 546 F.3d
245, 252 (2d Cir. 2008).
- 21 -
pageants by cultural nudists, occurring at family nudist retreats.11 We decline to
incorporate these assumptions into our independent review. Hansen presented no
evidence during trial, through testimony or otherwise, to support them. Compare
Commonwealth v. Sullivan, 972 N.E.2d 476, 486-87 (Mass. App. Ct. 2012) (noting
the lack of evidence presented that would indicate that the images depicted
anything but a lewd exhibition of the girl’s breasts and pubic area), with Bean, 761
N.E.2d at 508 (considering the testimony of the defendant’s expert in art history
connoting that the images “appear[ed] intended to have an artistic quality
independent of their specific subject matter”).
Additionally, notwithstanding defendant’s suggestion that this Court “must
undertake its own constitutional analysis of the photographs vis-à-vis the Dost
factors[,]” we are not so inclined to usurp the fact-finding function of the trial
justice, which defendant elected when he knowingly and voluntarily waived a jury
trial. See State v. Lussier, 186 A.3d 581, 586 (R.I. 2018). Rather, in accordance
with this Court’s decision in State v. Dunn, 726 A.2d 1142 (R.I. 1999), the proper
avenue to vacate a judgment and allow the trial justice to reconsider the evidence
11
In particular, Hansen argues that the trial justice’s decision “analyzes the naturist
lifestyle and pre-teen and teenage beauty pageants through the lens of personal
squeamishness instead of objective reality”; and that the images portray “people
celebrating an alternative lifestyle[,]” a “naturist pageant[,]” “cultural nudism[,]”
“teenage cultural nudists partaking in a non-sexual pageant[,]” “family nudist
retreats[,]” and “a group of families who possess similar beliefs about nudism[,]”
and capture a “contest taking place at a nudist retreat.”
- 22 -
or “take additional testimony and direct the entry of a new judgment” is by motion
of the defendant for a new trial pursuant to Rule 33 of the Superior Court Rules of
Criminal Procedure. Dunn, 726 A.2d at 1146. However, as noted supra, Hansen
did not move for a new trial. While this Court “make[s] an independent
examination of the whole record[,]” Lead Industries Association, Inc., 951 A.2d at
464 (quoting Bose Corporation, 466 U.S. at 499), we do not engage in de novo fact
finding or look to facts outside of those set forth in the record. See Lussier, 186
A.3d at 586; see also Niedwicki v. Belasco, 49 R.I. 417, 142 A. 228, 229 (1928).
We, therefore, confine our analysis to the images in question.
After determining that all of the images depict prepubescent minor females,
the trial justice described the images as follows:
“Exhibit * * * A * * * is a black and white photo of a
young child. The photo captures the naked body of the
child beginning above the knees with her face turned
away. The child is holding a card with the number ‘6.’
* * * [H]er eyes [are] closed looking away from the
camera and with a smirk on her face. * * *
“Exhibit * * * B * * * is another black and white image
of what appears to be the same child from Exhibit * * *
A. This picture is of her entire body, which is completely
naked, she is holding the number ‘6’ in her right hand
and not looking at the camera. Her face is facing right[,]
and she has a smirk on her face. Behind the child in the
picture is another naked young child looking at her and
adult middle-aged females with their bare breasts
exposed. * * *
- 23 -
“Exhibit * * * D * * * shows nine nake[d] children with
seven middle-aged naked men and women sitting around
them. One of the naked men behind the children has a
large smile on his face. The children are all * * * holding
number cards in the[ir] hands. * * *
“[Exhibit] * * * E * * * is similar to * * * D showing
nine naked children with one middle-aged naked man
with a large smile on his face. The children are all * * *
holding number cards in their hands. * * *
“[Exhibit] * * * N * * * shows a young naked child. Her
undeveloped breasts and pubic area are clearly shown on
the image. In addition, her head is tilted and she is
smiling * * *. She is also holding a number four in her
right hand[.] * * *
“Exhibit * * * O * * * sho[w]s a young naked child and
her undeveloped breasts and pubic area are clearly
shown. In addition, the child is looking away from the
camera with a smile on her face. * * *”12
12
Each of the six images at issue are identified in the record transmitted to this
Court on appeal by an Exhibit letter, a Bench Decision Exhibit letter, and a File
Name, as follows: Exhibit A, Bench Decision Ex. O, File Name “NC-BW 74”;
Exhibit D, Bench Decision Ex. A, File Name “NC-BW 69”; Exhibit E, Bench
Decision Ex. B, File Name “NC-BW 72”; Exhibit G, Bench Decision Ex. D, File
Name “russianbare010815-01-01”; Exhibit H, Bench Decision Ex. E, File Name
“russianbare010815-01-27”; and Exhibit Q, Bench Decision Ex. N, File Name
“russianbare010815-03-01.” For purposes of remaining consistent with the trial
justice’s identifications within the transcript, we identify the images as the trial
justice did, by the corresponding Bench Decision Exhibit letter.
- 24 -
Having reviewed the six images and the trial justice’s findings, we are satisfied
that each image constitutes a lascivious exhibition of the pubic area of each minor
subject therein, within the meaning of § 11-9-1.3(c)(6)(v).13
The defendant argues that none of the six images can be considered
lascivious under the Dost factors. Hansen also suggests that the trial justice found
that the other eleven images were “non-pornographic” and that the similarity of
those images to the six at issue points to the arbitrariness of the trial justice’s
decision. We reject this argument. The trial justice made no findings whatsoever
in relation to the lasciviousness of the remaining images; nor does this contention
warrant this Court’s review. Because Hansen was charged with a single count of
possession of child pornography, no more than one image was required to support
a conviction. See § 11-9-1.3. There are six.
Turning to the first factor,14 defendant first argues that the children’s
genitalia or pubic areas are not the focal point in the images because no part of the
children’s anatomy is highlighted by the setup of the images, when compared to
close-ups of the child’s pubic area in United States v. Holmes, 814 F.3d 1246 (11th
13
There is no question that the fourth Dost factor—“whether the child is fully or
partially clothed, or nude[,]” Dost I, 636 F. Supp. at 832—is satisfied; all of the
girls in the images are fully nude, other than sneakers, sandals, or jewelry. Hansen
conceded this point before trial.
14
The first Dost factor is “whether the focal point of the visual depiction is on the
child’s genitalia or pubic area[.]” Dost I, 636 F. Supp. at 832.
- 25 -
Cir. 2016), which were found to be the focal point. See Holmes, 814 F.3d at 1252.
We disagree that a close-up of the genitals or pubic area is necessary to satisfy the
focal-point factor. While the visibility of the genitals or pubic area should not be
“merely an inherent aspect of the fact that [the children] are naked[,]” Rex, 11
N.E.3d at 1071, genitals or pubic areas that are plainly visible, with some
characteristic of the composition drawing attention to these areas of the body, will
satisfy this factor. See Frabizio, 459 F.3d at 86 (nude female, with legs parted and
pubic area plainly visible could satisfy focal-point factor); see also Knox, 32 F.3d
at 747 (genitals and pubic areas of females, covered by opaque clothing, while
spreading or extending legs to make these areas visible to the viewer satisfied
focal-point factor); Wolf, 890 F.2d at 243 (nude pubic area with light focused on
victim’s genitals satisfied factor).
The defendant also attempts to draw a comparison between the images at
issue and those in Rex relative to the focal-point factor in Dost I. In Rex, the court
determined that in none of the images were the children’s genitalia the focal point
of the visual depiction but were rather “an inherent aspect of the fact that [the
children were] naked.” Rex, 11 N.E.3d at 1071. Notably, the court in Rex also
determined that, out of the seven images at issue (all of which were no greater in
size than two by three inches), the genitals were only visible in three of the images,
were not at all visible in two of the images, and not clearly visible in the remaining
- 26 -
two. See id. at 1070, 1071. Nothing in the photographs, where the genitals or
pubic areas were visible, drew attention to them. See id. In addition, five of the
images were from a nudist recreation catalogue, one was from a National
Geographic magazine, and the other from a sociology textbook. Id. at 1065 n.7.
Importantly, no other factor weighed in favor of a finding that any of the images
were lewd. See id. at 1071. We disagree that Rex supports defendant’s contentions
in this case.
In the case at bar, the trial justice determined that, in combination with other
factors, the focal point of Exhibit A is the child’s breasts and pubic area and that,
in Exhibits N and O, the children’s undeveloped breasts and pubic areas are clearly
visible. While we affirm the trial justice’s findings, our independent review of
these images takes us a step further, as the devil is in the details.
Each of the six images introduced by the state depict prepubescent nude
girls, each of whom are awkwardly gripping a numbered card at the side of her
body, adjacent to her hip, next to her undeveloped pubic area. In four of the
images, the child is posed alone;15 the other two images each depict a lineup of
nine girls;16 and, in all six images, the pubic areas are fully exposed and clearly
visible. The awkward placement of the number cards, directly adjacent to the
15
These four images are identified as Exhibits A, B, N, and O.
16
These two images are identified as Exhibits D and E.
- 27 -
subjects’ exposed pubic areas, serves to draw attention to the genital and pubic
areas. In each of the four images with a lone subject, the child’s pubic area is
featured in the vertical center of the composition. Notably, each subject was
captured with her long hair mostly behind the shoulders, to avoid covering their
undeveloped breasts. With the hair to the back and number cards to the side—and
not the front of the body—the fully exposed breasts and pubic areas of these girls
were the obvious focal point of the images.
The shadows in the two lineup images depicting nine girls of various ages
along a deck, from shortest to tallest, tell all. It is apparent that these images were
captured at different times of the day, as the shadows are in different locations. In
one image, identified as Exhibit E (lineup two), a large shadow is cast in front of
the lineup and covers a greater portion of the front of the stage (located at the
bottom of the image) as compared to the other lineup image, identified as Exhibit
D (lineup one); as a result, in comparison to lineup one, the girls in lineup two
were arranged further back on the deck so that a full view of the frontal nudity was
not impacted by the shadow.
The placement of the number cards in line with the pubic area of the
children, coupled with the details of the images, suggest that the full exposure of
the pubic area was instrumental to the composition of the images. Thus, it is
reasonable to conclude that the focal point of the images is on the children’s pubic
- 28 -
areas. See Wolf, 890 F.2d at 244 (considering that, where the “pubic area [wa]s
completely exposed, not obscured by any shadow or body part[,]” the focal-point
factor was satisfied).
Second, in arguing that the images do not depict sexually suggestive
settings,17 defendant submits that the children in the images are part of a nudist
community, partaking in “family-friendly” beauty pageants. The defendant
concludes that the “outdoor, semi-public setting” consisting of “some sort of camp
or resort area that caters to the nudist lifestyle,” is not sexually suggestive when
compared to “lounging on a bed or wrapped suggestively around a pole[.]” We
deem these contentions unavailing.
While the trial justice did not use the term “setting” in his analysis, he
certainly described features of Exhibits B, D, and E, akin to settings that
contributed to the lascivious determination. For example, in coming to the
conclusion that the girl in Exhibit B portrayed sexual coyness and an unnatural
pose, the trial justice found it “important” that the background of the image depicts
another nude young child and nude middle-aged women, who are gazing at the
main subject of the image and clapping. In Exhibit D, the trial justice found that
the presence of naked middle-aged men and women gathered around a lineup of
17
The defendant’s argument is in relation to the second Dost factor, which is
“whether the setting of the visual depiction is sexually suggestive, i.e., in a place or
pose generally associated with sexual activity[.]” Dost I, 636 F. Supp. at 832.
- 29 -
young nude children, including a man with a large smile on his face, was intended
to elicit a sexual response from the viewer. With respect to Exhibit E, the trial
justice determined that the image of lineup two, consisting of nine nude children in
unnatural poses, with one middle-aged naked man smiling behind them, was
intended to elicit a sexual response from the viewer. We do not disagree with the
trial justice and, after our independent review of the images, conclude that the
settings are sexually suggestive and exploitative.
We are of the opinion that the settings and the poses in the images “provide
no ready explanation that makes the nudity indisputably innocent.” Frabizio, 459
F.3d at 86. Although defendant urges this Court to consider the setting to be a
beauty pageant at a nudist resort, we reiterate that defendant provided no evidence
at trial that would support these purported factual connotations, and we are not
inclined to jump to unsupported conclusions. What is clear, however, is that the
settings do not simply portray the children engaging in ordinary activities in
unremarkable locations as was found in Rex, such as standing in front of a body of
water, playing under a garden hose, or adjusting a bicycle seat. See Rex, 11 N.E.3d
at 1070, 1071. Rather, here, the girls are participating in an adult-organized event,
where their underdeveloped breasts and genitals are center stage as exemplified by
the number cards and the audience.
- 30 -
A person “of reasonable intelligence, guided by common understanding and
practices,” Frabizio, 459 F.3d at 85 (quoting Freeman, 808 F.2d at 1292), can
distinguish an exposé of nude prepubescent females holding number cards—some
of whom are on a deck by what appears to be a marina—from children
nonchalantly standing by a body of water or children playing under a hose. See
Rex, 11 N.E.3d at 1070, 1071. The former is a display for an audience or, at
minimum, an effort to draw attention to the nude subjects therein, and the latter is
not. Furthermore, the nude adults surrounding the children—all of whom are at a
vulnerable age and cannot consent—contribute to the sexually exploitative nature
of these images. See Wiegand, 812 F.2d at 1245. In totality, we are satisfied that,
in relation to the second Dost factor, the settings of these images contribute to their
lasciviousness.
Regarding the third Dost factor,18 in arguing that the children are not
portrayed in unnatural poses, defendant contends that, generally, young girls
posing as pageant contestants is not unnatural and that, as nudists, the children
posing nude in the images at issue was “perfectly appropriate.” The trial justice
determined that, in each of the six images, the children’s fully nude poses with
18
The third Dost factor is “whether the child is depicted in an unnatural pose, or in
inappropriate attire, considering the age of the child[.]” Dost I, 636 F. Supp. at 832.
- 31 -
number cards in hand, some with turned or tilted heads and smirks on their faces,
were unnatural considering the age of each child. We agree.
In Exhibit A, a fully nude prepubescent female is shown swinging her hair
over her left shoulder, as is obvious from the movement in her hair, with her left
arm out of focus; her face is turned to her left, and she is partially smiling. In
Exhibit B, the same female is depicted with the same number “6” card; except that
in this image, she has stopped for a pose. The image captures her with her right
shoulder leaning backward, hips straight forward to the camera, head turned to her
right, and right knee and heel raised as if she stopped to acknowledge the crowd on
her right side and struck a pose while displaying her number card. In addition, this
young girl has a bathing-suit tan line, which suggests that her posing naked is not
the norm, but is unnatural.
Exhibits D and E—the lineup photographs—depict nine fully nude
prepubescent females, in a range of ages, all holding number cards horizontally to
their pubic areas and looking at the camera. Several of the girls are posed with one
knee slightly bent or one foot slightly in front of the other, and a number of them
have obvious tan lines, specifically the smallest subject holding number “1” and
the girls with numbers “6,” “7,” and “8.” These synchronous details suggest that
their poses were directed and staged by the photographer and, thus, in relation to
- 32 -
the third Dost factor, the children were depicted in unnatural poses, considering
their ages. See Dost I, 636 F. Supp. at 832.
Exhibit N portrays a prepubescent female with tan lines, holding a number
“4” card, looking at the camera and posing with her head turned slightly to her left
and down, left leg slightly in front of the right, and long hair behind her shoulders
exposing her fully nude front. The pose is not natural, but rather it is staged and
unnatural.
Finally, Exhibit O is a depiction of a prepubescent female from the mid-
thigh up, holding card number “3”—who, notably, appears to be a different person
than the young girl holding the number “3” card in Exhibits D and E. This girl is
posing with her head turned approximately ninety degrees to her right, hair behind
her shoulders with full frontal nudity, left arm across her stomach and left hand
tucked around her right side, wearing nothing but a necklace, earrings, and what
appears to be lipstick. In comparison to the natural body language and demeanor
in Rex, such as standing by a body of water or playing under a hose, the pose
exhibited in Exhibit O appears uncomfortable, unnatural, and staged. See Rex, 11
N.E.3d at 1070, 1071; see also Rivera, 546 F.3d at 250 (considering that the pose
in which the “subject’s head is turned to an unseen observer (the photographer)
suggests sexual encounter” and was staged to portray such an encounter).
- 33 -
Hansen argues that it is common for people in contests, such as soccer
games, marathons, and beauty pageants, to carry or wear a number for
identification, such that a number in hand cannot contribute to a pose being
unnatural. “[G]uided by common understanding and practices,” Frabizio, 459
F.3d at 85, were we to consider these images as beauty pageants, we note that
beauty contestants generally wear sashes across their chests, from the shoulders to
the waist and do not awkwardly hold number cards next to their nude pubic areas.
Despite defendant’s attempt to normalize the activities in these images, pageants,
in and of themselves, are not ordinary, everyday activities. In the six images at
issue, the prepubescent girls, “who are of an age when girls normally are clothed
even when in nature or in a stream, are completely unclothed[,]” and “none of the
girls’ postures [are] natural or spontaneous, [such] that each girl was deliberately
posed to exhibit her pubic area[.]” Id. at 86. Contrary to Hansen’s contention that
a pose must be sexually suggestive in some manner, the children need not be posed
as sexually alluring for the depiction to be designed to elicit a sexual response in
the viewer. See Wolf, 890 F.2d at 245 (concluding that “the photographer need not
portray the victimized child as a temptress”). Additionally, most of the girls in
these images are of an age when children are naïve to sexual suggestiveness.
Based on the objective criteria in the images, we are satisfied that the poses in full
- 34 -
nudity look uncomfortable, unnatural, and staged, considering the age of the
children.
In relation to the fifth Dost factor,19 defendant argues that nothing about the
expressions on the girls’ faces suggests sexual coyness or a willingness to engage
in sexual activity, including the smirks and smiles that the trial justice concluded
satisfy this factor. Nevertheless, as Hansen points out, “[s]exual coyness is an
expression outside the young child’s range of experience.” Dost I, 636 F. Supp. at
832. Rather, “[i]n the context of the statute applied to the conduct of children,
lasciviousness 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 like-
minded pedophiles[.]” Knox, 32 F.3d at 747 (quoting Wiegand, 812 F.2d at 1244).
The composition of these images, as set by the photographer, depicts prepubescent
girls who are completely exposed and identifiable by number, for whatever reason
the viewer may wish to believe or fantasize.
It is noteworthy that Exhibits D and E claim an exclusive license and a
website of origin—namely, “www.RussianBare.com”—not National Geographic
or a sociology textbook. Compare Rex, 11 N.E.3d at 1065 n.7 (images from
19
As there is no question that the fourth Dost factor, “whether the child is fully or
partially clothed, or nude[,]” is satisfied, see supra footnote 13, we turn to the fifth
Dost factor, which is “whether the visual depiction suggests sexual coyness or a
willingness to engage in sexual activity[.]” Dost I, 636 F. Supp. at 832.
- 35 -
National Geographic magazine and sociology textbook), with Sullivan, 972 N.E.2d
at 487 (noting that the images were found on a Russian photograph-sharing
website and “not in a medical textbook, National Geographic pictorial, or in an art
museum”). Thus, we are satisfied that the exploitative nature of these
compositions, as depicting the children’s vulnerability and availability, is more
than capable of being translated as sexual coyness to the viewer.
Finally, in relation to the sixth Dost factor,20 based on the objective criteria
of the photographs’ designs, we conclude that the visual depictions were designed
to elicit a sexual response in the viewer. For instance, Exhibits D and E were
produced for the “Russian Bare” audience. The settings of the images are neither
unremarkable nor innocent. In relation to all of the six images, it is not ordinary
for the fully nude bodies of young girls to be the subject of scrutiny; this factor,
along with the nude adult spectators, promotes sexual exploitation and intrusion
upon the privacy and dignity of the children depicted therein, at an age when they
cannot “consent to its diminishment.” See Wiegand, 812 F.2d at 1245.
Accordingly, this Court cannot “ignore the obvious exploitative nature of the
depiction[s.]” Wolf, 890 F.2d at 246. The state’s interest in protecting children
from the sexual exploitation portrayed in these images “so overwhelmingly
20
The sixth Dost factor is “whether the visual depiction is intended or designed to
elicit a sexual response in the viewer.” Dost I, 636 F. Supp. at 832.
- 36 -
outweighs” the defendant’s so-called “expressive interests” in possessing them.
Ferber, 458 U.S. at 763-64.
Conclusion
The defendant’s appeal is denied, and the judgment of conviction is
affirmed. The papers may be remanded to the Superior Court.
Justice Robinson, dissenting. After careful reflection and consideration, I
have come to the conclusion that I must respectfully dissent from the majority
opinion in this case. While I certainly acknowledge the scholarly and well-
articulated nature of the majority opinion (just as I similarly acknowledge the
intelligent and meticulous nature of the trial justice’s bench decision), I am
ultimately unable to agree with their application of the law to the particular images
at issue in this case.
I must begin by stating that in no way do I personally approve of the six
images at issue, nor should anything in this dissent be understood as suggesting
that I personally find any redeeming aesthetic or other value in these images.
However, that is not the legal question with which it is my duty to grapple. Rather,
the question is whether or not these six images can legally be classified as child
pornography under the relevant statutory scheme. Based on my review of the law
and the images at issue, I do not believe that these images fall within the statutory
- 37 -
prohibition. Nevertheless, having said that, I do acknowledge that this is a
remarkably close case.
The United States Supreme Court has made it clear that, in cases such as
this, where one must be ever-mindful of the rights protected by the First
Amendment, “an appellate court has an obligation to ‘make an independent
examination of the whole record’ in order to make sure that ‘the judgment does not
constitute a forbidden intrusion on the field of free expression.’” Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (quoting New
York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)); see State v. Lead Industries
Association, Inc., 951 A.2d 428, 464 (R.I. 2008) (relying on the above-quoted
constitutional principle set forth in Bose); Lyons v. Rhode Island Public Employees
Council 94, 559 A.2d 130, 134 (R.I. 1989); see also United States v. Amirault, 173
F.3d 28, 32 (1st Cir. 1999).
Accordingly, I have independently examined the record in this case to
determine whether or not any of the six images at issue are graphic or lascivious
(and thus considered to be child pornography under the pertinent statutory
scheme),1 rather than relying on the trial justice’s interpretation and assessment of
1
Our statutory scheme criminalizes the knowing possession of child
pornography and defines child pornography as “any visual depiction, including any
photograph * * * or computer or computer-generated image * * * of sexually
explicit conduct where * * * [s]uch visual depiction is a[n] * * * image of a minor
engaging in sexually explicit conduct * * *.” G.L. 1956 § 11-9-1.3(a)(4), (c)(1)(ii).
- 38 -
the images. In determining that those images are lascivious, the majority relies
heavily on the factors set forth in the opinion in 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), cert. denied, 484 U.S. 856. While I certainly do not fault the majority’s
referring to those factors for guidance,2 I have come to a conclusion that differs
from theirs when applying those factors to the images at issue.3
The first factor—“whether the focal point of the visual depiction is on the
child’s genitalia or pubic area”—in my opinion militates against these images
being classified as lascivious. Dost, 636 F. Supp. at 832. While the images at
issue do depict child nudity, they display virtually the entirety of the children’s
bodies; they do not, in my estimation, particularly draw attention to the genitalia in
their design or composition. See Commonwealth v. Rex, 11 N.E.3d 1060, 1070
(Mass. 2014) (“[I]t is plainly apparent that [the] only notable feature is the nudity
“Sexually explicit conduct” is further defined to include “[g]raphic or lascivious
exhibition of the genitals or pubic area of any person * * *.” Section
11-9-1.3(c)(6)(v) (emphasis added).
2
I would add that the majority opinion admirably provides a thorough and
accurate review of the statutory scheme and the caselaw relevant to the issues
presented in this case. I do not quibble with any of that portion of the majority
opinion; rather, in applying that law, I have simply reached my own independent
objective assessment of the images at issue that differs from the assessment
reached by the majority.
3
I will not provide a detailed description of the images at issue since the
majority has described at length what is portrayed in each image.
- 39 -
of the children[;] [i]n none of the photocopies is the focal point of the visual
depiction a child’s genitals * * *.”);4 cf. United States v. Frabizio, 459 F.3d 80, 86
(1st Cir. 2006) (stating that, in the photographs at issue in that case, the girls’ legs
were parted with the pubic area “plainly visible,” and adding that the photographs
could be seen as “drawing attention to the girls’ * * * vaginas”). My opinion is not
swayed by certain aspects of the images pointed out by the majority such as the
presence of the numbered card at the side of the girls’ hips in the images or the fact
that, in some of the images, the girls’ hair is placed behind their shoulders. While I
have taken into account the tone of certainty in which the majority expresses its
conviction that some aspects of these images make the genitalia appear to be the
focal point, having viewed the images myself and having carefully considered
them independently, I simply cannot agree.5 See Amirault, 173 F.3d at 33 (holding
that an image did not “significantly focus[] upon the genitalia” when the image
4
I disagree with the majority’s determination that Commonwealth v. Rex, 11
N.E.3d 1060 (Mass. 2014), fails to support defendant’s contentions in this case.
Rather, in my opinion, the images at issue in this case are more similar to than they
are different from those at issue in Rex, even though the images at issue in this case
are not derived from National Geographic or a sociology textbook. See Rex, 11
N.E.3d at 1063. Moreover, the images with which we are confronted appear to be
from a beauty pageant involving individuals who practice a nudist lifestyle, and at
least one of the images at issue in Rex was from a naturist catalogue. See id.
5
I am in agreement with Madison Hansen’s statement in his brief to this
Court that “[s]imply put, there is nothing about the staging, lighting, pose, or
camera angle that draws the viewer’s eye to [one of the girls’] pubic area in
particular * * *.”
- 40 -
showed a “girl’s pubic area * * * on clear display, [where] there is no close-up
view of the groin, * * * the genitals are not featured in the center of the
composition[, and] * * * the girl’s legs are not widespread and the lighting of the
photograph is not primarily directed at the genital region”). In my opinion, the
first Dost factor weighs against a finding of lasciviousness.
The second Dost factor—“whether the setting of the visual depiction is
sexually suggestive, i.e., in a place or pose generally associated with sexual
activity”—also weighs in favor of concluding that the images at issue are not
lascivious. Dost, 636 F. Supp. at 832. I acknowledge that the setting of these
images may not be considered to be quite as benign as the images at issue in Rex,
where the children in the images were simply engaging in ordinary activities such
as playing with a hose or adjusting the seat of a bicycle. Rex, 11 N.E.3d at 1070,
1071. However, it appears to me, on the basis of my independent examination of
the images at issue, that it can fairly be inferred that the images depict girls
participating in a sort of beauty pageant in the presence of a group of individuals,
including adults, who are engaging in a nudist lifestyle. Many of the children and
the adults in the audience are nude. In several of the images, the girls appear to be
on some sort of stage; in others one can detect an audio speaker and a bucket of
flowers. I simply do not detect anything overtly sexual about the setting of the
images or about the images themselves aside from the nudity; and that nudity is
- 41 -
not, in and of itself, enough to render them lascivious. See Osborne v. Ohio, 495
U.S. 103, 112 (1990) (“We have stated that depictions of nudity, without more,
constitute protected expression.”) (citing New York v. Ferber, 458 U.S. 747, 765
n.18 (1982)); Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975) (“Clearly
all nudity cannot be deemed obscene even as to minors.”). While many citizens
may look askance at nude beauty pageants for young girls, that does not render the
images from such an event sexual in nature or, indeed, lascivious.
I concede that the third and fourth Dost factors may weigh in favor of these
images being classified as lascivious. The third Dost factor relates to “whether the
child is depicted in an unnatural pose, or in inappropriate attire, considering the age
of the child[.]” Dost, 636 F. Supp. at 832. In my estimation, the application of this
factor to the case at hand is a very close call; however, I ultimately concede (albeit
dubitante) that it likely weighs in favor of a finding of lasciviousness. It is
somewhat difficult to argue that the children in the images at issue are depicted in a
natural manner; the images are certainly posed and the poses are less than natural
for a child to assume. Nevertheless, I do not lightly reject Mr. Hansen’s argument
that these poses are natural in the context of a beauty pageant and that they do not
involve sexual poses or children being depicted in suggestive clothing such as
lingerie. In the end, however, I am not persuaded by that argument because I am
not convinced that this Dost factor requires that level of contextual specificity.
- 42 -
The fourth Dost factor—“whether the child is fully or partially clothed, or
nude”—obviously weighs in favor of a finding of lasciviousness since the girls in
the images are all nude. Id. (Indeed, Madison Hansen has conceded that point in
his brief to this Court.)
Turning to the fifth Dost factor—“whether the visual depiction suggests
sexual coyness or a willingness to engage in sexual activity”—I differ from the
majority because I do not perceive actual sexual coyness or sexual suggestiveness
in these images. Dost, 636 F. Supp. at 832. The majority suggests that the
depiction of what it characterizes as the girls’ “vulnerability and availability”
somehow translates into sexual coyness to the viewer. In my opinion, that is an
enormous inferential leap, and it is one that I, on the basis of my independent
review, am unable to make.
Aside from the presence of nudity, I cannot perceive anything in these
images which suggests sexual coyness or a willingness to engage in sexual activity.
The fact that in some of the images the child is looking away from the camera with
a smile or even a smirk on her face is not indicative of coyness. Indeed, the idea
that the existence of a smile or smirk may be sufficient to render an image
pornographic is, as Mr. Hansen argues, “downright chilling.” Of all the Dost
factors, in my judgment, this one weighs most heavily in favor of a finding that
these images are not lascivious.
- 43 -
The sixth Dost factor—“whether the visual depiction is intended or designed
to elicit a sexual response in the viewer”—also leads me to conclude that the
images at issue are not lascivious. Dost, 636 F. Supp. at 832. I am unable to
perceive in the images any indication that a photographer intended these images to
elicit a sexual response. Cf. United States v. Wells, 843 F.3d 1251, 1256, 1257
(10th Cir. 2016) (holding that a defendant who secretly filmed his stepdaughter in
the bathroom had “intended the videos to elicit a sexual response in himself”);
United States v. Holmes, 814 F.3d 1246, 1252 (11th Cir. 2016) (“Each of the
pictures featured the child photographed as a sexual object[.] * * * [T]hat is, so
presented by the photographer as to arouse or satisfy the sexual cravings of a
voyeur.”) (internal quotation marks omitted); United States v. Brown, 579 F.3d
672, 681 (6th Cir. 2009) (holding that an image was “clearly lascivious” and
intended to elicit a sexual response in the viewer when “[t]he image depicts one of
the toddlers [at issue] lying nude on a bed touching her genitalia while her legs are
spread[;] [t]he toddler is fully nude, the photograph is focused on the girl’s
genitalia, and the positioning of the girl’s hand appears intended to be sexually
suggestive”).
With respect to the sixth Dost factor, the majority contends that “it is not
ordinary for the fully nude bodies of young girls to be the subject of scrutiny; this
factor, along with the nude adult spectators, promotes sexual exploitation and
- 44 -
intrusion upon the privacy and dignity of the children depicted therein, at an age
when they cannot consent to its diminishment.” (Internal quotation marks
omitted.) I am in essential agreement with that statement as being congruent with
my personal reaction to these images. However, the fact that the majority and I
consider these images to be inappropriate does not make these images sexual; it
does not mean that the images were designed to elicit a sexual response in the
viewer. It is a reasonable interpretation that these images are of a beauty pageant
involving individuals who engage in a nudist lifestyle. While I (and undoubtedly
many other citizens) would not choose such a lifestyle and would prefer not to see
children participating in same, that does not render images (even those of children)
from a group engaging in nudism inherently sexual based on the nudity alone. See
Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle
underlying the First Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself offensive or
disagreeable.”). There is nothing in these images to suggest that they were
intended to elicit a sexual response and were anything other than images capturing
a nudist beauty pageant. See Amirault, 173 F.3d at 34 (“We believe * * * that it is
a mistake to look at the actual effect of the photograph on the viewer, rather than
upon the intended effect.”) (emphasis added); see also United States v. Villard, 885
F.2d 117, 125 (3d Cir. 1989) (“Although it is tempting to judge the actual effect of
- 45 -
the photographs on the viewer, we must focus instead on the intended effect on the
viewer.”) (emphasis in original).
After careful reflection, an examination of the Dost factors leads me to the
conclusion that the images at issue in this case are not lascivious and, therefore, do
not constitute child pornography as it is defined in the statutory scheme at issue.6
In my judgment, the only factor in these images which could clearly be considered
graphic or lascivious is the fact that the children are nude. However, the United
States Supreme Court has been absolutely clear in stating that nudity, without
more, constitutes protected speech. Osborne, 495 U.S. at 112.
Due to my conviction that these images do not constitute child pornography
and are protected by the First Amendment, I respectfully dissent from the majority
opinion in this case.
6
With respect to whether or not the images are “[g]raphic,” as defined by
§ 11-9-1.3(c)(8), I am of the opinion that the statutory definition provided is
circular. “Sexually explicit conduct” is defined in part as “[g]raphic or lascivious
exhibition of the genitals or pubic area,” and “[g]raphic” is defined as when a
“viewer can observe any part of the genitals or pubic area * * * during any part of
the time that the sexually explicit conduct is being depicted.” Section
11-9-1.3(c)(6)(v), (c)(8). However, in my judgment, despite the unclear statutory
definition, these images are not graphic for many of the same reasons as they are
not lascivious.
- 46 -
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case State of Rhode Island v. Madison Hansen.
No. 2019-22-C.A.
Case Number
(P2/16-470A)
Date Opinion Filed April 27, 2020
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Brian P. Stern
For State:
Owen Murphy
Department of Attorney General
Attorney(s) on Appeal
For Defendant:
Angela M. Yingling
Office of the Public Defender
SU-CMS-02A (revised June 2020)