Also known as: sexually exploit · sexually exploits · sexually exploited · sexually exploiting · sex exploitation
Written by attorneys — see sources below.
Conduct involving the use of a person, especially a child, in prostitution, pornography, or other sexually manipulative activity that causes or could cause serious emotional injury. The government may criminalize the production and distribution of visual depictions of minors engaged in sexual conduct even when the material would not be obscene under the Miller test because of the compelling interest in protecting children from sexual exploitation.
FlashWire obtained unedited casting videos from a youth modeling agency showing minors partially nude while adults directed provocative poses. The site placed the series behind a paywall and sold subscriptions. A federal prosecutor indicted FlashWire under a child-pornography statute. The court denied the motion to dismiss because the commercial distribution of visual depictions of minors in sexual conduct falls outside First Amendment protection.
Leo, an analyst at Orion Capital, posted explicit videos depicting minors engaged in sexual conduct on the firm's password-protected client forum and charged fees for access. Federal investigators charged him under a child-exploitation statute. Leo raised a First Amendment defense. The court rejected the defense because the material constitutes unprotected child pornography regardless of the private distribution channel.
Dr. Lane filmed minors engaging in explicit sexual acts during a Pharmaco Labs study and later showed uncensored clips at a conference while selling online access. Federal health officials charged Lane under a statute criminalizing distribution of visual depictions of minors in sexual conduct. Lane challenged the statute on First Amendment grounds. The court upheld the statute because the distribution of such depictions is unprotected speech.
Police discovered that Osborne possessed photographs depicting minors in sexual conduct. Ohio prosecuted him under a statute banning possession of child pornography. Osborne argued that private possession should receive constitutional protection. The court upheld the conviction because the state's interest in preventing sexual exploitation of children justifies criminalizing possession as well as distribution.
In order to combat child pornography, Ohio enacted Revised Code Annotated section 2907.323(A)(3). The statute prohibits any person from possessing or viewing material or a performance that shows a minor who is not the person's child or ward in a state of nudity, unless certain exceptions for bona fide purposes or parental consent apply. Columbus, Ohio police officers conducted a valid search of petitioner Clyde Osborne's home and found four photographs. Each photograph depicts a nude male adolescent posed in a sexually explicit position. Osborne was convicted of violating the statute and sentenced to six months in prison. An intermediate appellate court affirmed Osborne's conviction. The Supreme Court of Ohio likewise affirmed. Relying on its construction of the statute, the Ohio Supreme Court rejected Osborne's claim that the First Amendment prohibits states from proscribing private possession of child pornography. The court also found that the statute, as narrowed to require a lewd exhibition or graphic focus on the genitals, is not unconstitutionally overbroad. The court held that scienter is an essential element of the offense. Osborne objected that the trial judge had not required the government to prove lewd exhibition and scienter as elements of the crime. The Ohio Supreme Court rejected these contentions because Osborne had failed to object to the jury instructions at trial and the court did not believe the failures amounted to plain error. The Ohio Supreme Court denied a motion for rehearing and granted a stay pending appeal. The United States Supreme Court noted probable jurisdiction in June 1989.
Michael M., a seventeen-year-old male, engaged in sexual intercourse with a sixteen-year-old female. California prosecuted him under its statutory rape law that applied only to males. Michael challenged the gender classification. The concurring opinion noted that the law targets the sexual exploitation of young females by older males and serves the compelling interest of preventing such exploitation.
Miller posted images online that depicted minors engaged in sexual conduct. North Carolina charged him under its child-exploitation statute. Miller moved to dismiss on First Amendment grounds. The court denied the motion because the material falls within the unprotected category of child pornography that the state may criminalize to prevent sexual exploitation of children.
No. Child pornography is a distinct category of unprotected speech. The government may criminalize its production and distribution even when the material would not be obscene under the Miller test because of the compelling interest in protecting children from sexual exploitation.
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…the Georgia law at issue in Stanley ." Ante , at 108. The majority's analysis does not withstand scrutiny. While the sexual exploitation of children is undoubtedly a serious problem, Ohio may employ other weapons to combat it. Indeed, the State already has enacted a panoply of laws prohibiting the creation, sale, and…
…that have enacted gender-neutral statutory rape laws. Although most of these laws protect young persons (of either sex) from the sexual exploitation
…reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. The prevention of sexual exploitation
…judgment of [the NEA] may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation
…Government. See Adam Walsh Child Protection and Safety Act of 2006, 120 Stat. 587 (entitled “[a]n Act [t]o protect children from sexual exploitation and violent crime”), § 102, id. , at 590 (statement of purpose declaring that the Act was promulgated “to protect the public from sex offenders”); Brief for United States 38-39 (asserting…
No. The Miller test does not apply to visual depictions of actual minors engaged in sexual conduct. The government may prohibit such material without showing prurient appeal, patent offensiveness, or lack of serious value because the harm to children supplies the justification for the categorical rule.
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No. The constitutional analysis focuses on the content and the exploitation of minors rather than the audience or forum. Distribution through a restricted client-only forum still constitutes unprotected speech that the government may criminalize.
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No. Artistic value does not override the unprotected status of visual depictions of actual minors engaged in sexual conduct. The rule applies whether the conduct is simulated or literal and regardless of any professional or artistic framing.
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