Return to CALJIC Part 9-12 – Contents
F 10.80 n1 Federal Internet Pornography Statute Held Not To Violate The First Amendment.
Ashcroft v. Free Speech Coalition (2002) 535 US 234 [152 LEd2d 403; 122 SCt 1389] held that the 1998 Child Online Protection Act is not unconstitutionally overbroad and does not improperly regulate speech on the Internet. However, the court did not resolve how Congress may regulate speech on the web, and the ultimate resolution of the statute is still unclear.
In Reno v. American Civil Liberties Union (1997) 521 US 844 [138 LEd2d 874; 117 SCt 2329], the United States Supreme Court invalidated the 1996 Communications Decency Act as unconstitutionally overbroad. The 1998 Child Online Protection Act was enacted in response to Reno making it a crime to “knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the world wide web, [make] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors.” (47 USC 231(a)(1).)
“Material that is harmful to minors” is defined in 47 USC 231(e)(6).
F 10.80 n2 Multiple Convictions: Downloading Of Child Pornography.
(See FORECITE F 17.02 n16.)
F 10.80 n3 Possession Of Child Pornography: Expert Testimony As To Apparent Age Of Child (PC 311.11).
(See People v. Kurey (2001) 88 CA4th 840, 847 [106 CR2d 150] [proof that children in pornographic films were under 18 was properly established by expert testimony as to their apparent age].)
F 10.80 n4 Possession Of Child Pornography: Commercial Purposes (PC 311.4(b)).
People v. Cochran (2002) 28 C4th 396 [121 CR2d 595] held that the Court of Appeal erred when it focused solely on whether the defendant had financially profited from his “video making enterprise.” (Cochran, 28 C4th at 407.)
F 10.80 n5 Child Pornography: Felony Possession.
Assembly Bill 1012 amended PC 311.11. Effective January 1, 2001, it is a felony to possess child pornography if the person has a prior conviction for any of the offenses specified, including possession of child pornography; sale, distribution, or production of matter depicting sexual conduct by a minor; and use of a minor to produce matter depicting sexual conduct by a minor (PC 311.2(b) and PC 311.4(b)). (Stats. 2001, Ch. 559.)
F 10.80 n6 Child Pornography: Federal Internet Offenses.
The California child pornography statute includes liability for internet related violations. (See PC 311.2(b).) [See Article Bank # A-90 for an article discussing defending internet child pornography cases.]
F 10.80 n7 Child Pornography: Virtual Images Do Not Violate The Federal Child Pornography Protection Act.
The Child Pornography Protection Act of 1996 expanded the federal prohibition on child pornography to include not only pornographic images made using actual children (18 USC 2256(8)(A)) but also “any visual depiction including any photograph, film, video, picture or computer or computer-generated image or picture” of a minor. (18 USC 2256(8)(B).) Thus, 18 USC 2256(8)(B) banned a range of sexually explicit images, sometimes called “virtual child pornography.” However, in Ashcroft v. Free Speech Coalition (2002) 535 US 234 [152 LEd2d 403; 122 SCt 1389], the Supreme Court held that the prohibitions of the Child Pornography Act (18 USC 2256(8)(B) and 18 USC 2256(8)(D) were overbroad and unconstitutional under the teachings of Miller v. California (73) 413 US 15 [37 LEd2d 419; 93 SCt 2607] and New York v. Ferber (82) 458 US 747 [73 LEd2d 1113; 102 SCt 3348].
F 10.80 n8 Child Pornography (PC 311.2): Nudity Not Required.
(See People v. Spurlock (2003) 114 CA4th 1122 [exhibition of genitals is required, but that exhibition includes clothed genitals; a depiction of genitals created for the sexual stimulation of the viewer suffice as an exhibition of genitals].)
F 10.80 n9 Child Pornography: “Sexual Conduct” – Whether Court Is Required To Instruct Sua Sponte On The Meaning Of “Exhibition Of The Genitals” Or “For The Purpose Of Sexual Stimulation Of The Viewer.”
In People v. Spurlock (2003) 114 CA4th 1122 the trial court instructed the jury on the meaning of “sexual conduct” by providing the jury with the exact language of the statute. The jury was instructed, “Sexual conduct means any of the following, whether actual or simulated: … exhibition of genitals, pubic or rectal area for the purposes of sexual stimulation of the viewer ….” (See PC 311.3(b) and PC 311.4(d)(1).) The defendant did not seek any further instruction on this point, but on appeal contended that the trial court should have given the jury special instructions further explaining what an “exhibition of the genitals” was and what “for the purpose of sexual stimulation of the viewer” meant by perhaps instructing the jury on the Dost factors. (See United States v. Dost (S.D.Cal. 1986) 636 FSupp 828, 831, affirmed sub nom. U.S. v. Wiegand (9th Cir. 1987) 812 F2d 1239.)
The Dost factors, a widely adopted set of considerations used to help determine whether there has been a prohibited exhibition of a minor child’s genitals, pubic, or rectal area are:
1) whether the focal point is on the child’s genitalia or pubic area;
2) whether the setting is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3) whether the child is 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 child’s conduct suggests sexual coyness or a willingness to engage in sexual activity;
6) whether the conduct is intended or designed to elicit a sexual response in the viewer. (See Dost, 636 FSupp at 832; People v. Kongs (94) 30 CA4th 1741, 1754-1755.)
See also Article Bank # A-90 (Re: F 10.80 n6 [Child Pornography: Federal Internet Offenses] for a discussion of the Dost factors.)
F 10.80 n10 Child Pornography Felony.
(See People v. Baird (2004) 116 CA4th 1318 [violation of PC 311(d) must be punished as a felony, even for a first time offender, rather than as a misdemeanor under section PC 311.9(a)].)
F 10.80a
Possession Of Child Pornography
(PC 311.11)
*Add to CJ 10.80:
Every person who knowingly possesses or controls any matter, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct is guilty of a violation of PC 311.11, a crime.
In order to prove this crime the prosecution must establish each of the following elements:
1. Defendant knowingly possessed ___________ (insert specific matter alleged to have been possessed e.g., photo, film, etc.), the production of which involved the use of a person under the age of 18 years.
2. The defendant knew the person depicted was under the age of 18 years.
“Matter” is defined as __________ [insert definition of matter appropriate to the case from PC 311(b) noting exceptions specified in PC 311.11(d)].
Sexual conduct is defined as __________ [insert appropriate specific conduct from PC 311.4(d)].
Points and Authorities
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
CALJIC 10.80 concerns alleged violations of PC 311.1 and PC 311.2. The above instruction concerns alleged violations of PC 311.11. However, due to the similarities in the statutes, it has been included under CJ 10.80.
For definition of “possession” and specific issues relating thereto see FORECITE F 1.24.
Note that contrary to PC 311.4, PC 311.11 requires actual knowledge that the person depicted was less than 18 years old. Re: PC 311.1 see CJ 10.80.
There is no requirement that the matter be obscene in order to establish a violation of this section. (See PC 311.11(c); see also American Booksellers Association Inc. v. Superior Court (82) 129 CA3d 197, 202 [181 CR 33].)
PC 311.4 prohibits the employment or use of a minor under the age of 18 in the production of material depicting that minor in “sexual conduct,” as defined therein. In People v. Cantrell (92) 7 CA4th 523, 542-43 [9 CR2d 188], the court held that PC 311.4 is not unconstitutional as overbroad. The court also held that there was no need to specifically instruct upon the definition of “rectal area” as used in the statute. (Id. at 543-45.) The mens rea of PC 311.4 requires that the defendant “with knowledge that a person is a minor” uses the minor in doing any of the proscribed acts. (Id. at 543; see also People v. Burrows (68) 260 CA2d 228, 232-33 [67 CR 28].) Simple nude photographs of children without more would not fall within the purview of PC 311.4. Such photographs would not have been taken for the apparent purpose of sexual stimulation of the viewer even if they depict the pubic or rectal areas. (Cantrell at 543.)
The constitutionality of PC 311.3(a) was upheld in In re Duncan (87) 189 CA3d 1348, 1356-60 [234 CR 877].
PC 311.4(c) and PC 311.4(d) impose felony liability for one who induces a minor under the age of 17 years to, among other things, engage in a live performance involving sexual conduct. Sexual conduct is defined in subdivision (d) to include “any lewd and lascivious sexual act as defined in PC 288 ….” Contrary to the current CALJIC definitions, lewd and lascivious act should be defined by an objective standard. (See FORECITE F 10.41a.)
F 10.80b
Possession Of Child Pornography (PC 311.11):
Scientific Research Defense
*Add to CJ 10.80:
It is a defense to the crime charged [in Count ____,] that the defendant committed the charged acts in the aid of legitimate scientific or educational purposes. The prosecution has the burden of disproving this defense. No group affiliation is required for research to be “legitimate.” Nor is it necessary that the pornography be germane to the educational or scientific purpose.
If you have a reasonable doubt whether the prosecution has met this burden you must vote to acquit.
Points and Authorities
“[U]nder California law, any defendant charged with violating section 311.11 [is] entitled to an instruction on the affirmative defense of scientific research established by [PC 311.8].” (See People v. Woodward (2004) 116 CA4th 821, 839.) “California does not require that the scientific or educational purposes be attached to a scientific or educational group with a professional purpose or that the pornography be germane to the purpose. . . No group affiliation is required under California law for legitimate research. . . .”” (Woodward, 116 CA4th at 841 [emphasis in original].)
Burden Of Proof Note: The above instruction assumes the burden regarding this defense is on the prosecution. See generally FORECITE PG III(D); but see PG VIII(C) and PG VII(G) regarding allocation of burden of proof as to affirmative defenses.
RESEARCH NOTES: See, Our misplaced reliance on early obscenity cases, 61 ABAJ 220; Community standards in obscenity adjudication, 66 CLR 1277.
F 10.80c
Child Pornography:
Definition Of “Sexual Conduct”
(PC 311.11)
*Add to CJ 10.80:
Sexual conduct means any of the following, whether actual or simulated: exhibition of genitals, pubic or rectal area for the purposes of sexual stimulation of the viewer.
Points and Authorities
See People v. Spurlock (2003) 114 CA4th 1122.
F 10.80d
Child Pornography (PC 311.11):
Factors To Consider
*Add to CJ 10.80:
In deciding whether the prosecution has proven beyond a reasonable doubt that the [photographs] [images] were an exhibition of the genitals for the purpose of sexual stimulation of the viewer, consider all of the circumstances, including but not limited to, the following:
1) whether the focal point is on the child’s genitalia or pubic area;
2) whether the setting is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3) whether the child is 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 child’s conduct suggests sexual coyness or a willingness to engage in sexual activity;
6) whether the conduct is intended or designed to elicit a sexual response in the viewer.
Points and Authorities
See United States v. Dost (S.D.Cal. 1986) 636 FSupp 828, 831-32, affirmed sub nom. U.S. v. Wiegand (9th Cir. 1987) 812 F2d 1239; see also People v. Spurlock (2003) 114 CA4th 1122, 1131 [instruction on Dost factors not mandatory in the absence of a defense request; People v. Kongs (94) 30 CA4th 1741, 1754-1755.
NOTE: Photographs do not have to be obscene to violate the child pornography statutes. (See In re Ulysses D. (2004) 121 CA4th 1092.)
