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7TH CIRCUIT LIMITS 18 USC 2251 CHILD PORN PRODUCTION STATUTE

Section 2251 of Title 18 is a federal child pornography statute. The statute mandates a minimum 15-year prison term for “[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in … any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” So, it stands to reason, after reading anything about it – even a federal appellate court decision – may make you feel as though you should wash your hands (and not merely as a COVID-19 preventative).

It seems that Matthew Howard made some rather disturbing videos of himself next to his sleeping 9-year old niece while associating online with like-minded perverts. Matt recorded himself in some disgusting chat session, and then – while his buddies were watching (and Matt was recording) – he engaged in, shall we say, onanism or – as the Victorians like to say – an act of self-abuse. The child, fully clothed, did nothing but sleep.

The government’s theory was that Matt violated the statute by “using” the clothed and sleeping child as an object of sexual interest to produce a visual depiction of himself engaged in solo sexual conduct. Matt’s attorney, on the other hand, acknowledged that his client’s conduct was reprehensible and perhaps even criminal under state law, but challenged whether it fell within the scope of § 2251(a). Counsel argued the statute required that Matt be shown to have somehow caused the child to engage in such conduct as well.

Matt’s computers contained plenty of kiddie porn he had collected on the Internet, so some prison time was assured under the rather punitive federal statutes. But the § 2251(a) conviction kicked the sentence into overdrive, locking Matt up for at least 15 years, so knocking out that count would be a big deal.

It mattered not to the jury, which was unanimously grossed out enough to convict Matt of producing child porn in violation of 18 USC § 2251.

Last week, the 7th Circuit – while hardly excusing the conduct – reversed the conviction. The court very properly engaged in an act of noscitur a sociis — which is really not gross at all. Rather, noscitur a sociis counsels that a word of doubtful meaning is more precisely defined by the neighboring words with which it is associated.

Here, the 7th said that the word “uses” in the statute “must be construed in context with the other verbs that surround it. When read in this commonsense way, the word has a more limited meaning than the government proposes… Five of the six verbs on this statutory list require some action by the offender to cause the minor’s direct engagement in sexually explicit conduct. The sixth should not be read to have a jarringly different meaning.”

The Court ruled that the “videos in question do not depict a child engaged in sexually explicit conduct; they show” Matt doing so “next to a fully clothed and sleeping child. In other words, the videos are not child pornography.”

United States v. Howard, 2020 U.S. App. LEXIS 24360 (7th Cir. August 3, 2020)

– Thomas L. Root