Appeal from the Circuit Court of Lake County. No. 04-CF-365. Honorable John T. Phillips, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Grometer
Defendant, Aric Sven, was convicted of one count of child pornography (720 ILCS 5/11--20.1 (West 2002)) following a bench trial in the circuit court of Lake County. Prior to trial, defendant pleaded guilty to four counts of unlawful videotaping (720 ILCS 5/26--4 (West 2002)). He raises no issue as to these counts on appeal. He does, however, contest his conviction of child pornography, arguing that the tapes he produced do not fall within the statutory definition of child pornography. We disagree and therefore affirm. We also reject defendant's contention that his sentence of eight years' imprisonment is excessive.
Defendant produced a number of videotapes, which were recovered from his home with the consent of his wife, by virtue of placing hidden video cameras in his bathroom. Two cameras were operating, one aimed at waist level and the other pointing down from a higher angle. The latter was hidden in the speaker of a television set that was mounted in the corner of the bathroom. The cameras did not zoom in or out, nor did they pan from side to side.
At issue here is a tape defendant recorded of his daughter's babysitter. At the time of the taping, defendant's daughter was still an infant. The babysitter was 14 or 15 years old. When defendant arranged for the babysitter to care for his daughter, he instructed her to give the baby a bath. Defendant instructed the babysitter to get into the tub with the baby, purportedly for safety reasons. The babysitter testified that she was unaware that she was being taped.
The tape shows the babysitter dressing and undressing in the bathroom. Throughout much of the video, she is nude. The babysitter is seen bathing with the baby, holding the baby, bouncing the baby in her arms, and, at one point, dancing with the baby to keep her from crying. As the trial court noted, there were two occasions where the babysitter touched her own genital area. However, as the trial court also correctly noted, this was the sort of innocent conduct in which people engage in the bathroom. The sole issue before us is whether these images constitute child pornography. We hold that they do.
The crime of child pornography is defined by section 11--20.1 of the Criminal Code of 1961 (Code) (720 ILCS 5/11--20.1 (West 2002)), in pertinent part, as follows:
"(a) A person commits the offense of child pornography who:
(1) films, videotapes, photographs, or otherwise depicts or portrays by means of any similar visual medium or reproduction *** any child whom he knows or reasonably should know to be under the age of 18 ***:
(vii) 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 ***."
Defendant contends that the videotape he made does not constitute child pornography because the images are not lewd, as required by the statute. He argues that the tape simply depicts ordinary activity in which people engage while in the bathroom.
Defining "lewd" has proven somewhat problematic for courts. In People v. Walcher, 162 Ill. App. 3d 455, 460 (1987), the court, quoting Black's Law Dictionary, 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). These terms, while synonymous, provide little concrete guidance. Relying on definitions like these would leave courts with an I-know-it-when-I-see-it approach, reminiscent of the United States Supreme Court's attempts to define obscenity. See Jacobellis v. Ohio, 378 U.S. 184, 197, 12 L.Ed. 2d 793, 803-04, 84 S.Ct. 1676, 1683 (1964) (Stewart, J., concurring). Such an approach is constitutionally infirm. It is true that child pornography enjoys no protection under the first amendment. New York v. Ferber, 458 U.S. 747, 764, 73 L.Ed. 2d 1113, 1127, 102 S.Ct. 3348, 3358 (1982). A definitional problem, however, does exist. In order for a court to determine whether an image is not protected, the court must first determine whether the content of the image fits within the boundaries of child pornography. As the Supreme Court phrased it in Ferber, "The category of [depicted] 'sexual conduct' proscribed must also be suitably limited and described." Ferber, 458 U.S. at 764, 73 L.Ed. 2d at 1127, 102 S. Ct at 3358.
Strictly speaking, we are not confronted with a constitutional issue; rather, the issue before us is whether the images defendant produced are lewd within the meaning of Illinois's child pornography statue (720 ILCS 5/11--20.1 (West 2002)). However, as the Illinois Supreme Court recognized, the child pornography statute finds its genesis in the standards set forth in Ferber:
"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 in original.) People v. Lamborn, 185 Ill. 2d 585, 590 (1999), quoting 720 ILCS 5/11--20.1(a)(1)(vii), (a)(6) (West 1996).
Thus, in determining whether an image is lewd for the purpose of the child pornography statute, a court also necessarily is determining whether the image is not protected by the first amendment. Constitutional proscriptions, such as Ferber's requirement that the conduct proscribed is sufficiently defined (Ferber, 458 U.S. at 764, 73 L.Ed. 2d at 1127, 102 S. Ct at 3358), do apply. Accordingly, a workable definition of "lewd" is required.
In United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), the United States District Court for the Southern District of California articulated a number of factors that have been widely adopted by courts assessing whether an image of a child is lewd or lascivious. See Lamborn, 185 Ill. 2d at 592 (collecting cases). The standard has been adopted and applied in this state. Lamborn, 185 Ill. 2d at 592; People v. Lewis, 305 Ill. App. 3d 665, 678 (1999). In making such determinations, the following factors are relevant:
"(1) whether the focal point of the visual depiction is on the child's genitals; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer." Lamborn, 185 Ill. 2d at 592. Not all factors need be present for an image to be deemed lewd. Lamborn, 185 Ill. 2d at 592. Instead, the image must be judged in light of its overall content, while taking into account the age of the minor. Lamborn, 185 Ill. 2d at 592-93. Since the overall content is relevant, the Dost factors are not all inclusive. Finally, simple nudity, while a factor to consider under Dost, is not sufficient in itself to render an image lewd. The Illinois legislature proscribed a "lewd exhibition of the unclothed genitals." 720 ILCS 5/ 11--20.1(a)(1)(vii) (West 2002). Equating nudity with lewdness would render the term "unclothed" meaningless, which contravenes a basic principle of statutory construction. People v. Maggette, 195 Ill. 2d 336, 350 (2001) ("A court should construe a statute, if possible, so that no term is rendered superfluous or meaningless").
It must be emphasized that we are assessing the content of the images rather than the conduct of defendant. As our supreme court stated, "We must review the photographs themselves and determine whether those photographs are lewd under the child pornography statute." Lamborn, 185 Ill. 2d at 590. Later, in discussing the sixth prong of the Dost test, the court emphasized that "[a] determination that a photograph constitutes child pornography focuses on the photograph itself." Lamborn, 185 Ill. 2d at 594. Our inquiry, then, is clearly limited to the content of the videotape itself. As defendant points out in his brief, the manner of its making and other facts external to the images, though unsavory, are irrelevant for the purpose of determining whether the images are lewd. In fact, defendant's conduct surrounding the making of the tape constitutes the separate crime of unlawful videotaping (720 ILCS 5/26--4 (West 2004)).
Finally, in determining whether an image is "lewd" within the meaning of the child-pornography statute, the de novo standard of review applies. Lamborn, 185 Ill. 2d at 590. This standard has been criticized. See Lamborn, 185 Ill. 2d at 598 (Heiple, J., dissenting); Lewis, 305 Ill. App. 3d at 677. Given that the analysis focuses on the content of the images, de novo review makes sense. Quite simply, the trial court is in no better position to judge the content of a photographic image than we are where the image is available to us. Indeed, the principle that we conduct de novo review where facts are undisputed and only questions of law remain is a common one. See, e.g., City of Champaign v. Torres, 214 Ill. 2d 234, 241 (2005) ("The pertinent facts are uncontroverted. The task before us is to determine how the relevant statutory terms and constitutional principles should apply to those uncontroverted facts. Where, as here, the question on appeal is limited to application of the law to undisputed facts, the standard of review is de novo"); People v. Kleutgen, 359 Ill. App. 3d 275, 278 (2005) (DUI case); People v. Dieppa, 357 Ill. App. 3d 847, 849 (2005) (validity of search); Farris v. ...