The opinion of the court was delivered by: Justice Bilandic
Agenda 18-September 1998.
The issue in this case is whether five photographs are "lewd" for purposes of the Illinois child pornography statute. 720 ILCS 5/11-20.1 (West 1996). We hold that two of the five photographs are lewd. Following a bench trial in the circuit court of Woodford County, defendant, Robert Lamborn, was convicted of two counts of producing child pornography. 720 ILCS 5/11-20.1(a)(1)(vii) (West 1996). Defendant was also convicted of three counts of possessing child pornography. 720 ILCS 5/11-20.1(a)(6) (West 1996). The trial court sentenced defendant to concurrent prison terms of 10 years for the two production counts and concurrent 3-year prison terms for the three possession counts. The trial court also fined defendant $2,000 for each production conviction, and $1,000 for each possession conviction. See 720 ILCS 5/11-20.1(c) (West 1996). The appellate court affirmed all defendant's convictions and sentences. No. 4-97-0723 (unpublished order under Supreme Court Rule 23). We allowed defendant's petition for leave to appeal. See 166 Ill. 2d R. 315. For the reasons set forth below, we affirm in part and reverse in part the judgment of the appellate court.
Two 13-year-old female victims, herein referred to as "Y" and "Z," went on a camping trip with defendant. The victims were friends, and Y knew defendant through his granddaughter. Defendant stipulated at trial that he knew that both Y and Z were under the age of 18; that he possessed the photographs at issue; and that he was the photographer of three of the photographs, Exhibit Nos. 2, 3, and 4. The State introduced as evidence the five photographs, which were taken on the camping trip. Exhibit No. 1 depicts defendant standing in knee-high water completely naked, revealing a partial erection. Defendant is grabbing Z by the shoulder with his left arm, and the palm of his right hand is on the top of Z's head. Z is bending over slightly, and her right arm is extended around defendant's waist. Z is wearing a bikini swimsuit, but the bikini top is pulled down to her stomach, revealing her breasts.
In Exhibit No. 2, Y and Z are standing next to each other in knee-high water with one arm wrapped around the other's shoulder. Y and Z are topless, holding their bikini tops at their sides with their free hands. Y and Z are wearing bikini bottoms.
Exhibit No. 3 depicts Z standing in knee-high water with her back to the camera and her hands on her hips. Z's bikini bottom is slightly pulled down, partially revealing her buttocks. Y is in the background, fully covered by her bikini.
In Exhibit No. 4, Z is standing in knee-high water with her back to the camera. Z's bikini bottom is slightly pulled down, partially revealing her buttocks. Y is crouched down in the water next to Z. Y is fully covered by her bikini.
Exhibit No. 5 depicts defendant standing in knee-high water, completely naked, revealing a partial erection. Defendant has his left arm draped across Y's back. Y's right arm is resting on defendant's right shoulder. Y's bikini top is pulled down to her stomach, revealing her breasts. Defendant's two convictions for producing child pornography involve Exhibit Nos. 2, 3, and 4. These photographs do not include a depiction of defendant. Defendant's three convictions for possessing child pornography concern all five photographs.
The United States Supreme Court recognized child pornography as "a category of material outside the protection of the First Amendment" in New York v. Ferber, 458 U.S. 747, 763, 73 L. Ed. 2d 1113, 1126, 102 S. Ct. 3348, 3358 (1982). The reason underlying this holding is that the crime of child pornography is an offense against the child and causes harm "to the physiological, emotional, and mental health" of the child. Ferber, 458 U.S. at 758, 73 L. Ed. 2d at 1123, 102 S. Ct. at 3355. These harms result from "the trespass against the dignity of the child." United States v. Wiegand, 812 F.2d 1239, 1245 (9th Cir. 1987), citing Ferber, 458 U.S. at 758, 73 L. Ed. 2d at 1123, 102 S. Ct. at 3355. "Human dignity is offended by the pornographer. American law does not protect all human dignity; legally, an adult can consent to its diminishment. When a child is made the target of the pornographer-photographer, the statute will not suffer the insult to the human spirit, that the child should be treated as a thing." Wiegand, 812 F.2d at 1245. Child pornography is particularly harmful because the child's actions are reduced to a recording which could haunt the child in future years, especially in light of the mass distribution system for child pornography. See Ferber, 458 U.S. at 759, 73 L. Ed. 2d at 1124, 102 S. Ct. at 3355-56.
Thus, in Ferber, the Court held that a state could, consistent with the first amendment to the United States Constitution, prohibit the dissemination of material which depicts children under the age of 16 engaged in sexual conduct, regardless of whether the depiction is legally "obscene." Ferber, 458 U.S. at 756, 73 L. Ed. 2d at 1122, 102 S. Ct. at 3354; see also People v. Geever, 122 Ill. 2d 313, 326-27 (1988) (holding that the State may, consistent with both the federal and Illinois constitutions, proscribe the knowing possession of child pornography in the home). The general obscenity standard enunciated in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), therefore, does not govern the determination of whether material is child pornography. Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct. at 3358; Geever, 122 Ill. 2d at 323-25. To determine what constitutes child pornography: "A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole." Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct. at 3358. Nevertheless, a state's right to regulate child pornography is limited. The law must adequately define the prohibited conduct; the category of prohibited "sexual conduct" must be suitably limited and described; the offense must be limited to works that visually depict sexual conduct by children below a specified age; and an element of scienter on the part of the defendant must be a component of the offense. Ferber, 458 U.S. at 764-65, 73 L. Ed. 2d at 1127, 102 S. Ct. at 3358-59.
In accordance with the standards set forth in Ferber, a person commits the offense of child pornography in Illinois by photographing or possessing photographs of any child whom the person knows or reasonably should know to be under the age of 18 where such child is "depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, pubic area, buttocks, or, if such person is female, a fully or partially developed breast of the child or other person." (Emphasis added.) 720 ILCS 5/11-20.1(a)(1)(vii), (a)(6) (West 1996). The meaning of the term "lewd exhibition" is a question of statutory construction which this court reviews de novo. See Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997). Parenthetically, we agree with the Dissent that, when reviewing the sufficiency of the evidence in a criminal case, the proper standard of review is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See People v. Collins, 106 Ill. 2d 237, 261 (1985). Here, however, we are interpreting the meaning of the statutory term "lewd exhibition." See 720 ILCS 5/11-20.1(a)(1)(vii), (a)(6) (West 1996). We must review the photographs themselves and determine whether those photographs are lewd under the child pornography statute. We are not faced with reviewing the sufficiency of the evidence. Therefore, the de novo standard of review is the correct standard of review for this appeal.
In the present case, defendant argues that the five photographs depict mere nudity without lewdness and thus are not child pornography. Defendant asserts that if the subjects of the photographs were fully clothed, the photographs would be unremarkable. According to defendant, the photographs neither depict sexual activity nor focus on nudity. Rather, the photographs capture uninhibited adolescent spontaneity. We disagree with defendant as to Exhibit No. 1 and Exhibit No. 5 and hold that these two photographs are lewd under the child pornography statute. Both of the lewd photographs depict defendant posing completely naked in knee-high water, with his arm around a topless victim.
This court has not previously defined "lewd." Our appellate court in People v. Walcher, 162 Ill. App. 3d 455 (1987), defined "lewd" as" `[o]bscene, lustful, indecent, lascivious, lecherous.' " Walcher, 162 Ill. App. 3d at 460, quoting Black's Law Dictionary 817 (5th ed. 1981). The Walcher court held that certain photographs were lewd under the former Illinois child pornography statute, which prohibited the visual depiction of a minor in a pose involving a lewd exhibition of the genitals (see Ill. Rev. Stat. 1985, ch. 38, par. 11-20.1(a)(1)(vii)). Walcher, 162 Ill. App. 3d at 460-62. In finding the photographs lewd, the Walcher court reasoned that the central focus of the photographs was to exhibit and emphasize the genitals of young girls. ...