explicit conduct is defined as, inter alia, the "lascivious
exhibition of the genitals or pubic area of any person."
18 U.S.C. § 2256(2)(E). Knox maintains that the Nather tapes do
not contain any exhibition of the genitals or pubic area, and
therefore do not contain sexually explicit conduct.
In United States v. Dost, 636 F. Supp. 828 (S.D.Cal. 1986),
aff'd. sub nom, United States v. Wiegand, 812 F.2d 1239, 1244
(9th Cir. 1987), the district court formulated six factors to
be considered when determining whether a visual depiction of a
minor constitutes a lascivious exhibition of the genitals or
pubic area.*fn6 In United States v. Villard, 885 F.2d 117 (3d
Cir. 1989), this circuit adopted the Dost factors "as a means
of determining whether a genital exhibition is lascivious." Id.
Unfortunately, these cases provide no guidance in the instant
matter. The focal point of Knox's argument is the existence of
an exhibition, not the character or lasciviousness of the
exhibition.*fn7 Sexually explicit conduct covers exhibitions
of the "genitals or pubic area." 18 U.S.C. § 2256(2)(E)
(emphasis added). Therefore, an exhibition of the genitals is
not required. A prosecution under the statute could proceed on
the theory of an exhibition of the pubic area alone. The
government is proceeding under such a theory with regards to
the Nather tapes.
This is a case of first impression. To this date, no court
has addressed the applicability of the statute with respect to
an exhibition of the pubic area. In order to determine if the
Nather tapes contain such an exhibition, the meaning of an
"exhibition of the pubic area" must first be determined. The
legislative history provides no guidance in this matter.
Consequently, we must look to the plain meaning of the words
Exhibit means "to present to view: show, display . . . to
show publicly: put on display in order to attract notice to
what is interesting or instructive." Webster's New
International Dictionary, Unabridged, (1976). Pubic is defined
as "of, relating to, or lying in the region of the pubes or the
pubis." Id. Although pubes and pubis have different
definitions, they both refer to the same area of the human
anatomy. Pubes refers to the "hair which appears upon the lower
part of the hypogastric region at the age of puberty" or "[t]he
lower part of the hypogastric region." Id. Pubis is defined as
"the ventral and anterior of the three principal bones
composing either half of the pelvis." Id. Thus, the pubic area
would appear to be the region of the human anatomy in close
proximity to the genitals.
It follows that an exhibition of the pubic area would occur
where there is a display of the region in close proximity to
the genitals. The Nather tapes were fraught with instances of
the camera zooming in on the area of the girl's genitals.
Although in every instance the girl's genitals were covered by
either underpants or a bathing suit, the area in close
proximity to the genitals, specifically the uppermost portion
of the inner thigh area closest to the girl's genitals, was
clearly exposed. Based on the aforementioned, the court cannot
conclude as a matter of law that the Nather tapes do not
contain an exhibition of the pubic area. Accordingly,
defendant's motion to dismiss the indictment because the Nather
tapes fail to contain an "exhibition of the genitals or pubic
area," 18 U.S.C. § 2256(2)(E), will be denied.
Since the parties make no arguments concerning the lascivious
nature of the Nather tapes, the court refuses to render an
opinion on this issue at this time, waiting until the
conclusion of the trial to make such a determination.