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Airam Rojas Zerpa
Airam Rojas Zerpa

Dost Testi: How It Was Developed and Why It Matters


What is the Dost Test and How Does It Affect Child Pornography Law?




Introduction




Child pornography is a serious crime that involves the production, distribution, or possession of any visual depiction of a minor engaged in sexually explicit conduct. It is illegal in most countries, including the United States, because it violates the rights and dignity of children, exposes them to harm and exploitation, and fuels the demand for more abuse. However, not all images of children are considered child pornography. Some may be innocent, artistic, educational, or medical in nature. How can we distinguish between lawful and unlawful depictions of minors?




dost testi



One of the tools that courts use to make this distinction is called the Dost test. It is a six-factor guideline that was established in 1986 in a federal case involving 22 nude or semi-nude photographs of girls aged 10 to 14. The test aims to determine whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area" under federal law. The test has become a key feature of child pornography law, adopted by virtually all state and lower federal courts as part of the definition of child pornography.


In this article, we will explore what is the Dost test, how it was developed, what are its problems and criticisms, what are its alternatives and reforms, and what are its implications for child pornography law. We will also answer some frequently asked questions related to this topic.


The Origin and Development of the Dost Test




The Dost test was named after Robert Dost, who was charged with mailing undeveloped film containing 22 nude or semi-nude photographs of girls aged 10 to 14 to a photo processing company in Hollywood, California. The company alerted the authorities, who seized the film and arrested Dost. He was indicted for violating 18 U.S.C. 2252(a)(1), which prohibits transporting or shipping any visual depiction involving "the use of a minor engaging in sexually explicit conduct". The statute defines "sexually explicit conduct" as including "lascivious exhibition of the genitals or pubic area" of a minor.


Dost moved to dismiss the indictment, arguing that none of his photographs depicted lascivious exhibition of genitals or pubic area. He claimed that his photographs were artistic expressions protected by the First Amendment. The district court denied his motion, but recognized that there was no clear definition or standard for determining what constitutes lascivious exhibition. Therefore, it developed a six-factor guideline to assist in making this determination. The court stated that not all of the factors need to be met, nor are other factors necessarily excluded in this test. The six factors are:


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  • 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.



The court applied the test to Dost's photographs and found that they met all six factors. The court concluded that the photographs were lascivious exhibitions of the genitals or pubic area of minors, and therefore constituted sexually explicit conduct under the statute. The court denied Dost's motion to dismiss the indictment and upheld his conviction.


The Dost test was affirmed by the Ninth Circuit Court of Appeals in 1988, and has since been adopted by virtually all state and lower federal courts as a guideline for determining whether a visual depiction of a minor is lascivious. The test has also been incorporated into the Child Protection and Obscenity Enforcement Act of 1988, which requires producers of sexually explicit materials to keep records of the performers' ages and identities. The act defines "sexually explicit conduct" as including "lascivious exhibition of the genitals or pubic area of any person" and refers to the Dost test as a relevant consideration.


The Problems and Criticisms of the Dost Test




Despite its widespread use and acceptance, the Dost test is not without problems and criticisms. One of the main issues with the test is that it is vague and subjective, leaving too much room for interpretation and discretion by judges and juries. The test does not provide clear definitions or examples of what constitutes "focal point", "sexually suggestive", "unnatural pose", "inappropriate attire", "sexual coyness", or "sexual response". These terms are ambiguous and may vary depending on the context, culture, and perspective of the viewer. For instance, what may be considered sexually suggestive in one setting may be considered innocent in another. What may be considered unnatural or inappropriate for one age group may be considered normal or appropriate for another. What may elicit a sexual response in one person may not elicit a sexual response in another.


Another issue with the test is that it may infringe on the free speech rights and artistic expression of some individuals who produce or possess images of minors that are not intended or used for sexual purposes. The test does not take into account the intent or purpose of the creator or possessor of the image, nor does it consider the artistic, educational, medical, or historical value of the image. The test may also be overinclusive, capturing images that do not depict actual sexual activity or abuse, but merely nudity or partial nudity. Some critics argue that the test may criminalize innocent images of children, such as family photos, sports photos, or artistic photos, that do not harm or exploit anyone.


The Dost test has also been challenged on constitutional grounds, mainly on the basis that it violates the First Amendment right to free speech and expression, and the Fourteenth Amendment right to due process and equal protection. Some defendants have argued that the test is too broad and vague, failing to provide adequate notice of what is prohibited and allowing arbitrary and discriminatory enforcement. Some defendants have also argued that the test is too narrow and rigid, failing to provide adequate protection for legitimate speech and expression. Some defendants have also argued that the test is inconsistent with the Supreme Court's rulings on obscenity and child pornography law, which require a more stringent standard than lascivious exhibition.


The Dost test has been criticized by various scholars and experts who have proposed alternative tests or approaches to defining child pornography. Some of these include:


  • The Knox test, which focuses on whether the image depicts sexual activity rather than nudity or exhibition.



  • The Whorley test, which considers whether the image depicts a minor as a sexual object rather than a person.



  • The Moran test, which examines whether the image portrays a minor in a sexually abusive situation rather than a sexually suggestive one.



  • The contextual approach, which evaluates the image in relation to its purpose, audience, message, and effect.



  • The harm-based approach, which assesses whether the image causes actual or potential harm to minors or society.



The Alternatives and Reforms to the Dost Test




Given the problems and criticisms of the Dost test, some have suggested that it should be improved or replaced by a more objective, consistent, and fair standard for determining child pornography. Some of the possible ways to do this are:


  • Clarifying and refining the criteria of the test. This could involve providing more specific definitions, examples, and explanations of the terms and factors used in the test, such as "focal point", "sexually suggestive", "unnatural pose", "inappropriate attire", "sexual coyness", and "sexual response". It could also involve adding, removing, or modifying some of the factors to make them more relevant, accurate, and consistent.



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