Issue: Does the term “sexual activity” in the Sexual Exploitation statute encompass bathroom usage when a person records someone engaging in normal bathroom activities?
Facts: Defendant was convicted of Sexual Exploitation of a Minor (among other things) after secretly recording minors using the bathroom. Defendant contended that his videos did not depict the victims engaging in “sexual activity” as defined in the statute, but was convicted.
Appellate Decision: In a split-decision, the intermediate court affirmed the conviction, holding that the videos depicted “sexual activity,” which includes “[l]ascivious exhibition” of sexual organs. The court looked to several “Dost factors” which have been applied in such cases, namely a factor asking “whether the visual depiction is intended or designed to elicit a sexual response in the viewer,” and determined that this factor should be applied subjectively to the Defendant rather than objectively to the victim’s conduct. Under this light, the victims’ nudity in the bathroom constituted “lascivious exhibition” and thus “sexual activity.” Judge McMullen, dissenting, wrote that “lascivious exhibition” should be viewed objectively such that the defendant was not recording “sexual activity.”
Review Granted: September 22, 2015.
Prediction: Ben agrees with the dissent and thinks the Supreme Court should reverse. The plain language in the statute’s use of “exhibition” and “activity” clearly refer to the objective conduct of the victim, not the defendant’s subjective perception.