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U.S. Eleventh Circuit
Step-Dad Videotapes Daughter Nude: Yes, That's Child Porn, Court Rules
By Jonathan R. Tung, Esq. on March 02, 2016 5:59 AM
The Eleventh Circuit Court of Appeals was quick to conclude that a step-father who surreptitiously made video records in his step-daughter's bathroom activities was guilty of producing a form of child pornography. The court slapped him with harsh penalties, including an order to register as a sex-offender.
The crux of the matter turned on the issue: Is lascivious exhibition for the purposes of child pornography met when the child is unaware that his or her private area is being recorded for later viewing by a third party? The answer is a resounding "Yes."
Hubert Holmes and Yolanda had been married for eight years. Yolanda lived with her daughter Q.H. (to protect her identity) for eight years. Sometime in August of 2012, Yolanda was cleaning house while her daughter was at school. As she did so, she discovered an adhesive putty stuck to the underside of the bathroom vanity, and tape on the edge of one of the mirrors in the bathroom.
Following a hunch, she opened her husband's laptop. Like a professional sleuth, she viewed images that had recently been captured electronically via cameras contained in files that had been named to appear as if they were work related. Yolanda contacted police and an investigation implicated Holmes.
The images were of Q.H. in various stages or undress or nudity from the ages of 15 to 16. Holmes hid cameras in the bathroom to capture Q.H. without her knowledge. She was videotaped "as she sang, danced, stood in front of the mirror," etc. Twenty three videos in all were found. A large number of screen captures depicted Q.H.'s pubic area and her bust.
A jury returned a verdict guilty on counts of production and possession of child pornography.
Federal law's definition of child pornography turns on the definition of "sexually explicit conduct" which is defined in 18 U.S.C. sec. 2256(8) and contains five per se definitions. One of those definitions is "lascivious exhibition of the genitals or pubic area of any person."
As terrible as this is, it is rather settled that the definition includes those forced depictions of children engaged in acts of which they are aware they are being recorded. Less clear is whether or not the definition includes depictions of the "otherwise innocent" minors who act but are completely unaware that their images are surreptitiously and secretly captured.
The Eleventh Circuit took the position that had been taken by many other Circuit courts and affirmed the lower district's conviction. The answer is yes: the definition includes children who are unaware because the manner of the capturing and the recording is a function of the intent of the producer or editor. Thus, the actions of the child are not the focus (ironically) but really the objective intent of the producer who is making the child pornography.
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