There is no doubt that Melvin Hubert Holmes took videos of his teenage stepdaughter in various stages of undress without her knowledge. The images were captured in the victim’s bathroom and bedroom. The images depicted the victim in normal, though often intimate, innocent conduct. At no point was the child victim ever captured in any kind of “sexually explicit” conduct.


The hidden cameras were discovered by the victim’s mother who, after viewing some of the videos stored on her husband’s computer, reported the discovery to the police. A total of twenty-three videos were recovered from Holmes’s computer by law enforcement forensic experts.


Federal Convictions for Child Pornography Leads to 15 Year Sentence


Holmes was subsequently convicted and sentenced for one count of production or attempted production of child pornography in violation of 18 U.S.C. § 2251(a) and one count of possession of child pornography in violation of 18 U.S.C. § 2254(a)(4)(B). He was sentenced to 15 years on the production count and 10 years on the possession count with the sentences ordered to be served concurrently.


Following the presentation of the Government’s case, Holmes’s attorney moved for a judgment of acquittal, arguing that the images of the victim did not constitute child pornography within the meaning of 18 U.S.C. § 2256(2)(A) because they did not depict a minor engaged in “sexually explicit” conduct.


The trial court denied the motion. Holmes timely appealed to the Eleventh Circuit Court of Appeals.


Capture of Innocent Conduct Can Constitute Lascivious Exhibition


The issue Holmes put before the appeals court was whether the depiction of “otherwise innocent conduct by a minor can constitute ‘a lascivious exhibition of the genitals and pubic area’ based on the actions of the individual creating the depiction.”


On February 25, 2016, the Eleventh Circuit joined the Eighth, Tenth, and Ninth Circuits in finding that “lascivious exhibition” can be expanded to include the actions of the producer of the depiction.


Context is in order.


Child Pornography Statute Criminalizes Sexually Explicit Conduct


  • 2256(8) defines “child pornography as “any visual depiction, including photograph, film, video, picture, or computer or computer generated image or picture” where “the production of such visual depiction involves the use of a minor in sexually explicit conduct.”


To find someone guilty of the crime of production of child pornography under § 2251(a), the Government must prove that the defendant used, persuaded, enticed or coerced a minor to engage in “sexually explicit conduct for the purpose of producing any visual image of such conduct …”


To find a person guilty of possession of child pornography under § 2254(a)(4)(B), the Government must prove that the defendant knowingly possessed a visual depiction of a minor engaged in sexually explicit conduct.


Sexually Explicit Conduct Defined


  • 2256(2)(A) defines “sexually explicit conduct” as:


  • Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
  • Bestiality;
  • Masturbation;
  • Sadistic or masochistic abuse; or
  • Lascivious exhibition of the genitals or pubic area of any person.



The issue squarely before the Eleventh Circuit, and previously decided by the Eighth, Ninth and Tenth Circuits, was “whether the statutory phrase ‘lascivious exhibition of the genitals or pubic area’ may include depictions of the ‘otherwise innocent’ conduct of a minor which are surreptitiously taken by an alleged producer and made lascivious based upon the actions of the producer, not the child.”


Lascivious Exhibition


The Eleventh Circuit began its analysis by pointing out that it has previously defined “lascivious exhibition” as one that “excites sexual desires or is salacious.”


Holmes tried to persuade the appeals court that the images he videoed depicted “mere nudity,” making him a “voyeur” and not a child pornographer. He reasoned that since there was no “lascivious exhibition of the genitals or pubic area” that excited sexual desires or that was salacious, he could not be guilty of either producing or attempting to produce child pornography.”


The appeals court disagreed, following the lead of its sister circuits that “lascivious exhibition” should focus on the intent of the producer, not the actions of the victim. The court said that to find otherwise would require the victim to “exhibit lust, wantonness, sexual coyness, or other inappropriate precocity.”


The court added that “such an interpretation would pervert both the language and the logic of the legislation and case law.”


Good Intentioned Judicial Activism


These four appeals courts have expanded the definition of “lascivious exhibition” beyond the language of the statute with their own “interpretation” of what the law should be, not what it is. If the appeals courts do not like the way the law is written, they can suggest that Congress change it, but the courts should not be in the business of legislating their own “interpretations” into federal laws because it has the power to do so.


When interpreting a statute, the courts must begin with the plain language of the statute.


  • 2254(a)(4)(B) says the visual depiction of a child must show that he or she is engaged in “sexually explicit conduct.” The statute does not say anything about “otherwise innocent conduct” of the child, nor does it say that either the “sexually explicit” or “otherwise innocent” conduct must be so “salacious” as to sexually excite the producer.


It is not the court’s constitutional duty to clean up poorly drafted legislation by Congress. Congress could have said that any visual depiction of a child that would sexually excite the producer or possessor constitutes child pornography. That is not what Congress said nor is it what Congress intended based upon the plain language of the statute. The plain language of the statute is clear: the visual depiction of a child to be pornography must depict the child engaged in “sexually explicit conduct.”


We all agree that one of society’s primarily obligations ought to be that of protecting our children.  But, there are other laws on the books that would have supported a criminal charge in both state and federal court that would have held legal water.  We understand the court’s desire to come to the correct solution in this case, but fear the court’s reasoning is flawed.  It is often bad cases, with bad facts, that make bad law.