what constitutes a "graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person" under child porn laws?
I see cases where it's debated whether the pictures really are sexually explicit conduct. Why should a person's liberty depend on something so subjective, especially given how harsh the penalties are?
Vague laws are unconstitutional because people have a right to know what behaviors are illegal, so they can stay on the right side of the law.
It would be less vague if they would just say, "If there's sexual contact, then it counts as child porn." That's an objective standard. We can readily tell, from looking at an image, if someone's genitals are being touched.
But if we have to apply a Dost test, without even any rules that say, e.g., if x out of y criteria are met, then it counts as child porn, then it seems subjective and could easily vary from prosecutor to prosecutor, judge to judge, or jury to jury.
Psychiatry is a lot of BS, but at least they have a book that sets out criteria and says, if you meet a certain number of those criteria, then you qualify for the diagnosis. With the Dost test, it's unclear how many criteria need to be met, and the list of criteria is also not exhaustive.
So basically the courts' attitude is, you should just avoid any content that approaches the borderline, in order to be safe. But that chills a lot of speech that wasn't child porn; it means people have to delete a lot of legal child erotica just to be absolutely sure nobody will interpret it as child porn.
Their argument is, if you got a child to pose in a certain way, then you exploited her. But all the time people are telling children how to pose for cameras; it's just that when it's sexual, they say it's damaging somehow. Also, if the child themselves posed in a sexual way of their own free will, without any adult involved, they say that too is victimization (because the child victimized themselves).
There actually is some behavior that is legal to engage in, but illegal to record. For example, it could be legal to look at a kid, such as your little sister, in person, who is engaging in sexually explicit conduct (e.g. masturbating), but it would be illegal to take a picture of it. What's even the difference? Or, it would be legal in some states to have sex with one's 17-year-old wife, but illegal to create a sex tape of it.
And we're not talking about misdemeanor charges; we're talking about felony charges. These laws are ridiculous, but nobody seems to want to change them. And we can tell the leftists are not on our side, because when they took over the ACLU, the ACLU stopped helping in cases involving child porn or other pedophilic behavior.
• ( https link ) 18 U.S. Code § 2256. Definitions for chapter