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The parents of two teen-age girls who were photographed in the nude without their parents’ knowledge or consent have lost a bid to revive a civil suit against the photographer and her husband. In Doe v. Chamberlin, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals held Wednesday that no jury could ever find that the photos of the 15- and 16-year-old girls violated the federal Protection of Children Against Sexual Exploitation Act because none of them was sexually suggestive or focused on “forbidden zones.” Writing for the court, visiting 9th Circuit Senior Judge John T. Noonan Jr. closed with a quote from D.H. Lawrence, an author whose most famous work, “Lady Chatterly’s Lover,” was widely banned at the time of its release in 1928. Describing Lawrence as “the victim of overzealous censorship,” Noonan quoted from a posthumously published essay in which Lawrence wrote that genuine pornography “is almost always under-world; it doesn’t come into the open. … You can recognize it by the insult it offers, invariably, to sex, and to the human spirit.” Echoing that sentiment, Noonan found that “the photographs at issue in this case offer no insult to sex or to the human spirit. No jury could find them to fall within the federal statute’s definition of sexually explicit conduct.” According to court papers, in August 1995, Kathryn Lesoine took photographs of her stepdaughter and three of her friends at a beach on Martha’s Vineyard. Seven months later, Lesoine photographed two of the girls again at her studio in Waverly, Pa. In the beach photographs, the girls were photographed naked, taking a shower. In the studio photographs, the girls were partially clothed, according to court papers. Another amateur photographer saw the photos Lesoine had taken and informed the mother of the 15-year-old girl, who, in turn, informed the parents of the 16-year-old girl. The parents were upset that the photos had been taken without their consent and asked the Lackawanna County, Pa., district attorney to conduct a criminal investigation. The district attorney seized many of the photos and determined that they did not justify prosecution, according to court documents. But the parents filed a civil suit in U.S. District Court for the Middle District of Pennsylvania, seeking damages on the grounds that the photos violated both state and federal criminal laws. U.S. District Judge A. Richard Caputo dismissed the suit in April 2001 after finding that none of the photographs met the 3rd Circuit’s definition of “lascivious,” which derives from a 1986 decision from the Southern District of California in United States v. Dost. In Dost, the court announced a six-factor guide for deciding whether an exhibition of genitalia or the pubic area is lascivious: � whether a forbidden area is the focus; � whether the setting of the depiction is sexually suggestive or generally associated with sexual activity; � whether the pose or attire of the minor is unnatural or inappropriate, given her age; � whether the child is naked; � whether the child shows sexual coyness or willingness to engage in sex; and � whether the photo is intended or designed to elicit a sexual response in the viewer. Noonan found that, as applied in the 3rd Circuit, the Dost list of factors is not exhaustive and no single factor is dispositive, but that more than one factor must be present to prove lasciviousness. For the beach photos, Caputo found that, apart from the girls in the shower being unclothed, no reasonable juror could find a Dost factor present because the pubic areas were far from being focal. Saying that an open shower near a beach was not a place associated with sexual activity, Caputo concluded that it was natural to be nude when one is washing off from the sand. He also found that neither of the two girls showed any sexual coyness. Similarly, for the studio photos, Caputo found there was no naked display of the genital areas nor any attempt to make the genital areas the “focal point” of the picture. Noonan agreed, saying, “The setting is not sexually suggestive — a white paper background typical of studio photography. The poses are not unnatural; the attire is of the kind used in artistic or theatrical shows. There is no hint of sexual coyness or readiness on the part of the plaintiffs to have sex. There is no incitement to lust.” As a result, Noonan concluded that “no reasonable juror could find any of the studio photos to qualify as criminal under the Protection of Children Against Sexual Exploitation Act.” Noonan was joined by 3rd Circuit Judges Anthony J. Scirica and Marjorie O. Rendell.

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