Sexual Exploitation of Children

Reporter’s Notes

Using a Child in a Sexual Performance (CR27-701); Possession of Child Pornography (CR27-741): The list of circumstances to consider in determining whether the exhibition was lewd are the same factors articulated by a federal district court in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom., United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987). Those factors, while not comprehensive or necessarily applicable in every case, have been applied by federal courts throughout the country. See, e.g., United States v. Amirault, 173 F.3d 28, 31 (1st Cir. 1999); United States v. Rivera, 546 F.3d 245, 249 (2d Cir. 2008); United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009); United States v. Moore, 215 F.3d 681, 686 (7th Cir. 2000); United States v. Goodale, 831 F. Supp. 2d 804, 809–14 (D. Vt. 2011).

Note that 13 V.S.A. § 2827 (possession of child pornography) refers to a “clearly lewd exhibition,” while 13 V.S.A. § 2822 (use of a child in a sexual performance) refers only to a “lewd exhibition” and omits the word “clearly.” The model instructions are consistent with the statutory language.

Luring a Child (CR-27-761): The definitions of “solicit” and “entice” are derived from Black’s Law Dictionary (10th ed. 2014) (WL). The definition of “lure” is based on Merriam-Webster’s Dictionary (online). Note that the definition of “entice” is different in the unlawful restraint context. See CR25-131, et seq.

Please advise the reporter if you came here looking for an instruction on any other crimes listed in 13 V.S.A. §§ 2821-2828.