The Dost test is a six-factor guideline established in 1986 in the United States district court case United States v. Dost , 636 F. Supp. 828 (S.D.Cal. 1986). The case involved 22 nude or semi-nude photographs of females aged 10–14 years old. The undeveloped film containing the images was mailed to a photo processing company in Hollywood, Los Angeles, California.
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In order to better determine whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area" under 18 U.S.C. § 2256(2)(B), the court developed six criteria. Not all of the criteria need to be met, nor are other criteria necessarily excluded in this test. For example, in United States v. Johnson, three Dost factors (sexually suggestive setting, inappropriate attire or unnatural poses, and a suggestion of sexual coyness) were absent from the videos taken by the defendant, but the Eighth Circuit ruled that a reasonable jury could still find that he had acted lasciviously.
- Whether the focal point of the visual depiction is on the child's genitalia or pubic area.
- Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity.
- Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child.
- Whether the child is fully or partially clothed, or nude.
- Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.
- Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
Concerning the lascivious display of clothed genitalia, the U.S. Department of Justice described use of the Dost test in child pornography and 2257 documentation regulations in a 2008 rule, writing that the precedent United States v. Knox, 32 F.3d 733 (3d Cir. 1994) did not prohibit ordinary swim team or underwear model photographs, but "although the genitals were clothed in that case, they were covered by thin, opaque clothing with an obvious purpose to draw attention to them, were displayed by models who spread or extended their legs to make the pubic and genital region entirely visible to the viewer, and were displayed by models who danced or gyrated in a way indicative of adult sexual relations".
Briefs submitted in late 2009 for Brabson v. Florida, a case in which girls were secretly videotaped during the "innocent conduct" of changing into swimwear, differ concerning the nature of "intent" in the Dost test. At issue is whether "Cases applying Dost hold that the focus in determining whether an image is lascivious should be on the objective criteria of the [image's] design, not the 'actual effect' of the images on a particular defendant".
The Fifth Circuit of the United States departed from Dost with respect to the intent of the Defendant, concluding well that a given photo may constitute child pornography even if the photographer clearly had only asexual intent, and that likewise a photo of a child in a winter coat was not child pornography, even if a pedophile was sexually stimulated by the latter.
"Lascivious" can describe a multitude of elements including the child's partial or complete nudity or the focus of the image (as held in United States v. Kemmerling), the child's act (as held in Ferber), the filmmaker's intent, or the viewer's reaction (as held in Knox). In United States v. Horn, the Eighth Circuit held that even if the child is acting innocently, the images can be lascivious if they are intended to be sexual. In that case, videos had been taken of nude girls "freeze-framed at moments when their pubic areas are most exposed, as, for instance, when they are doing cartwheels; and these areas are at the center of the image and form the focus of the depiction." In Johnson, the court noted that "statements made by the producer about the images are relevant in determining whether the images were intended to elicit a sexual response in the viewer."
Relation of the Dost case to the other elements of child pornography law in the United States
Miller v. California sets the precedent as to what may constitute illegal obscenity, in general. Dost only focused on the prong of the Miller Doctrine that deals specifically with appealing to the prurient interest. The other two prongs of the Miller Doctrine, are whether or not the material violates contemporary community standards, and whether or not the material in question has serious artistic, literary, or political value.
Thus, it is possible for material to fail the Dost test, but still be protected by the first amendment, since Miller requires failure on all three of its prongs before the government may be said to have a permissible governmental interest in prohibiting a given work, where Miller requires that any given work be considered as a whole. Such was reaffirmed in Ashcroft v. Free Speech Coalition And again in United States V. Williams, two cases which affirmed that virtual child pornography could not be outlawed on the rationale of Dost nor the rationale of Miller, because to do so would necessarily infringe on that material which the Miller doctrine was intended by the court to protect.
On appeal of a court's determination that a depiction is lascivious, a de novo review is required, due to the First Amendment rights implicated.
The test was criticized by NYU Law professor Amy Adler as forcing members of the public to look at pictures of children as a pedophile would in order to determine whether they are considered inappropriate. "As everything becomes child pornography in the eyes of the law—clothed children, coy children, children in settings where children are found—perhaps children themselves become pornographic".
Robert J. Danay notes, "The application of these factors, as in Knox, necessitates a drawn out analysis of materials that most people would not, in the past, have considered obscene or even sexual in nature. Through such analyses, police, judges, lawyers, and, ultimately, members of the public are forced to closely inspect increasingly innocuous images of children (and children generally) to determine whether the depicted children might be acting in a sexual manner."
- "United States v. Dost, 636 F. Supp. 828 - Dist. Court, SD California 1986".
- Electronic Frontier Foundation. "Blogger's Legal Guide: Adult Material".
- United States v. Amirault, 173 F.3d 28 (1st Cir.) ("We believe that the Dost factors are generally relevant and provide some guidance in evaluating whether the display in question is lascivious. We emphasize, however, that these factors are neither comprehensive nor necessarily applicable in every situation. Although Dost provides some specific, workable criteria, there may be other factors that are equally if not more important in determining whether a photograph contains a lascivious exhibition. The inquiry will always be case-specific.").
- "Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit Conduct; Inspection of Records Relating to Depiction of Simulated Sexually Explicit Performance; Final Rule". Federal Register. 73 (244): 77431–77472. December 18, 2008.
- Supreme Court of Florida - Brabson v. Florida - Jurisdictional Brief of Respondent Archived March 2, 2012, at the Wayback Machine
- Supreme Court of Florida, Brabson v. Florida, Petitioner's Jurisdictional Brief Archived March 2, 2012, at the Wayback Machine.
- United States v. Steen, No. 10-50114 (5th Cir., Filed Feb. 25, 2011). http://www.ca5.uscourts.gov/opinions%5Cpub%5C10/10-50114-CR0.wpd.pdf
- Dowling, Kieran (2014). "A Call to Rewrite America's Child Pornography Test: The Dost Test".
- Miller v. California, 413 U.S. 15 (1973). https://scholar.google.com/scholar_case?case=287180442152313659&hl=en&as_sdt=6&as_vis=1&oi=scholarr
- Ashcroft V. Free Speech Coalition, 535 U.S. 234 (2002). https://www.law.cornell.edu/supct/html/00-795.ZO.html
- United States V. Williams, 553 U.S. 285 (2008). https://supreme.justia.com/cases/federal/us/553/285/
- "Amy Adler discusses her legal scholarship in interdisciplinary forum". NYU School of Law News.
- Danay, Robert J. (2005). "Danger of Fighting Monsters: Addressing the Hidden Harms of Child Pornography Law, The". Rev. Const. Stud. 11 (151).