Texas Child Pornography Law- What is a “lewd exhibition”?

I’m betting that most of you have parents. And most of your parents owned a camera. And with that camera some of your parents took a picture of you sans clothing while you were young. Well, what makes that legal? Isn’t in a crime to possess naked pictures of kids? Could those photos be… child pornography? Are your parents sex offenders? Probably not. But to be sure, you better read the rest of my post.

What’s the Texas law on Child Pornography?
To the penal code, section 43.26.

(a) A person commits an offense if:
(1) the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct; and
(2) the person knows that the material depicts the child as described by Subdivision (1).

Ok. So your parents probably don’t need to put me on retainer. While I have your attention let’s take a closer look at the definition of sexual conduct, because it isn’t exactly what you think.

For that definition we go to Texas Penal Code section 43.25

(2) “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.

Lewd exhibition? Not a phrase your hear a lot these days. And guess what, the penal code doesn’t provide a definition for “lewd exhibition”.

Defendants have complained on appeal that without a definition of lewd, juries have no standard by which to decide which to determine if an image is illegal. I mean, if you are going to pin a life-destroying kiddie porn conviction on someone, shouldn’t we take some measure to avoid obtuse phrases that are not in the average juror’s common parlance? Perhaps, but this is Texas, and we convict people damnit!

A good case on point is Tovar vs. State. Tovar appealed his conviction for possessing child pornography and complained, inter alia, that the jury wasn’t instructed on what the heck a “lewd exhibition” is. Not to worry, proclaimed the court of appeals, “lewd” is a word that jurors use all the time and are familiar with. Riiight.

While we don’t tell jurors what to look for to decide if a photograph is lewd, we do give instructions to appellate judges. I know. Jurors are thought to instrincially understand lewdness while judges have created a checklist of factors to determine lewdness.
Here are the factors appellate courts consider for a factual sufficiency review of lewd exhibition images in a child pornography case:

(1) the focal point of the visual depiction is the child’s genitalia, (2) the place or pose of the child in the photograph is sexually suggestive, (3) the child is depicted in an unnatural pose or inappropriate attire, (4) the child is fully or partially clothed or nude, (5) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity, or (6) the visual depiction is intended or designed to elicit a sexual response in the viewer.  Alexander v. State, 906 S.W.2d 107, 110 (Tex.App.-Dallas 1995, no pet.).