{{Short description|United States court guideline}} {{Sex and the Law}} {{DISPLAYTITLE:''Dost'' test}} {{hatnote|This article discusses the case United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986); not United States v. Dost, 575 F.2d 1303 (10th Cir. 1978)}}

The '''''Dost'' test''' is a six-factor guideline established in 1986 in the [[United States district court]] case ''United States v. Dost'', 636 F. Supp. 828 ([[United States District Court for the Southern District of California|S.D.Cal.]] 1986). The case involved 22 nude or semi-nude photographs of females aged 10–14 years old. The undeveloped film containing the images was mailed to a [[photo processing]] company in [[Hollywood, California|Hollywood]], [[Los Angeles]], [[California]].<ref name=usvdost/>

==Criteria== In order to better determine whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area" under {{uscsub|18|2256|2|B}}, the court developed six criteria. Not all of the criteria need to be met, nor are other criteria necessarily excluded in this test.<ref name=usvdost>{{Cite web|url=https://scholar.google.com/scholar_case?case=9482047682589425170&hl=en&as_sdt=10000000000002&as_vis=1|title=United States v. Dost, 636 F. Supp. 828 - Dist. Court, SD California 1986 - Google Scholar}}</ref><ref>{{cite web|url=https://www.eff.org/issues/bloggers/legal/adult|title=Blogger's Legal Guide: Adult Material|author=[[Electronic Frontier Foundation]]|date=25 August 2011|archiveurl=https://web.archive.org/web/20230911191001/https://www.eff.org/issues/bloggers/legal/adult|archive-date= September 11, 2023 }}</ref><ref name=amirault>{{cite court|url=https://caselaw.findlaw.com/us-1st-circuit/1069064.html|quote=We believe that the Dost factors are generally relevant and provide some guidance in evaluating whether the display in question is lascivious. We emphasize, however, that these factors are neither comprehensive nor necessarily applicable in every situation. Although Dost provides some specific, workable criteria, there may be other factors that are equally if not more important in determining whether a photograph contains a lascivious exhibition. The inquiry will always be case-specific.|litigants=United States v. Amirault|court=1st Cir.|vol=173|reporter=F.3d|opinion=28}}</ref> For example, in ''United States v. Johnson'', three ''Dost'' factors (sexually suggestive setting, inappropriate attire or unnatural poses, and a suggestion of sexual coyness) were absent from the videos taken by the defendant, but the Eighth Circuit ruled that a reasonable jury could still find that he had acted lasciviously.<ref>{{Cite web|url=https://casetext.com/case/us-v-johnson-819|archive-url=https://web.archive.org/web/20201130081728/https://casetext.com/case/us-v-johnson-819|url-status=dead|archive-date=November 30, 2020|title=U.S. v. Johnson, 639 F.3d 433 &#124; Casetext Search + Citator|website=casetext.com}}</ref>

# Whether the focal point of the visual depiction is on the child's genitalia or pubic area. # Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity. # Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child. # Whether the child is fully or partially clothed, or nude. # Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity. # Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

==Case law==

Concerning the lascivious display of clothed genitalia, the [[U.S. Department of Justice]] described use of the Dost test in [[child pornography]] and [[2257]] documentation regulations in a 2008 rule, writing that the precedent ''[[United States v. Knox]]'', 32 F.3d 733 (3d Cir. 1994)<ref>{{Cite web|url=https://law.resource.org/pub/us/case/reporter/F3/032/32.F3d.733.92-7089.html|title=32 F.3d 733|website=law.resource.org|archiveurl=https://web.archive.org/web/20220514133619/https://law.resource.org/pub/us/case/reporter/F3/032/32.F3d.733.92-7089.html|archive-date=May 14, 2022}}</ref> did not prohibit ordinary swim team or underwear model photographs, but "although the genitals were clothed in that case, they were covered by thin, opaque clothing with an obvious purpose to draw attention to them, were displayed by models who spread or extended their legs to make the pubic and genital region entirely visible to the viewer, and were displayed by models who danced or gyrated in a way indicative of adult sexual relations".<ref>{{cite journal|url=http://edocket.access.gpo.gov/2008/E8-29677.htm|title=Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit Conduct; Inspection of Records Relating to Depiction of Simulated Sexually Explicit Performance; Final Rule|date=December 18, 2008|journal=Federal Register|volume=73|number=244|pages=77431–77472|archiveurl=https://web.archive.org/web/20230408065503/https://www.govinfo.gov/content/pkg/FR-2008-12-18/html/E8-29677.htm|archive-date=April 8, 2023}}</ref>

The Fifth Circuit of the United States departed from Dost with respect to the intent of the Defendant, concluding well that a given photo may constitute child pornography even if the photographer clearly had only asexual intent, and that likewise a photo of a child in a winter coat was not child pornography, even if a pedophile was sexually stimulated by the latter.<ref>{{Cite web|url=http://www.ca5.uscourts.gov/opinions%5Cpub%5C10/10-50114-CR0.wpd.pdf|title=United States v. Steen, No. 10-50114 (5th Cir., Filed Feb. 25, 2011).|archiveurl=https://web.archive.org/web/20220624073019/http://www.ca5.uscourts.gov/opinions/pub/10/10-50114-CR0.wpd.pdf|archive-date=June 24, 2022}}</ref>

"Lascivious" can describe a multitude of elements including the child's partial or complete nudity or the focus of the image (as held in ''United States v. Kemmerling''),<ref>{{Cite web|url=https://www.leagle.com/decision/2002929285f3d6441868|title=U.S. v. KEMMERLING &#124; 285 F.3d 644 (2002) &#124; 5f3d6441868 &#124; Leagle.com|website=Leagle}}</ref> the child's act (as held in ''Ferber''), the filmmaker's intent, or the viewer's reaction (as held in ''Knox'').<ref>{{cite journal|author=Dowling, Kieran|title=A Call to Rewrite America's Child Pornography Test: The Dost Test|journal=Student Works |date=2014|url=https://scholarship.shu.edu/student_scholarship/135|archiveurl=https://web.archive.org/web/20220701023633/https://scholarship.shu.edu/student_scholarship/135/|archive-date=July 1, 2022}}</ref> In ''United States v. Horn'', the Eighth Circuit held that even if the child is acting innocently, the images can be lascivious if they are intended to be sexual. In that case, videos had been taken of nude girls "freeze-framed at moments when their pubic areas are most exposed, as, for instance, when they are doing cartwheels; and these areas are at the center of the image and form the focus of the depiction."<ref>{{Cite web|url=https://casetext.com/case/us-v-horn-5|archive-url=https://web.archive.org/web/20201130075928/https://casetext.com/case/us-v-horn-5|url-status=dead|archive-date=November 30, 2020|title=U.S. v. Horn, 187 F.3d 781 &#124; Casetext Search + Citator|website=casetext.com}}</ref> In ''Johnson'', the court noted that "statements made by the producer about the images are relevant in determining whether the images were intended to elicit a sexual response in the viewer."

== Relation to other elements of US child pornography law == ''[[Miller v. California]]'' sets the precedent as to what may constitute [[United States obscenity law|illegal obscenity]] generally under US law.<ref>{{Cite web|url=https://scholar.google.com/scholar_case?case=287180442152313659&hl=en&as_sdt=6&as_vis=1&oi=scholarr|title=Miller v. California, 413 US 15 - Supreme Court 1973 - Google Scholar}}</ref> Dost only focused on the prong of the [[Miller test]] that deals specifically with appealing to the prurient interest. The other two prongs of the Miller test are whether or not the material violates contemporary community standards and whether or not the material in question has serious artistic, literary, or political value.

However, because obscenity and child pornography are two distinct categories of speech, and child pornography is not required to be obscene, any relation to the Miller standard as applied to virtual/fictional child pornography is immaterial, as explained by ''[[Ashcroft v. Free Speech Coalition]]'' and ''[[United States v. Williams (2008)|United States v. Williams]]'' (2008).

On appeal of a court's determination that a depiction is lascivious, a [[de novo review|''de novo'' review]] is required, due to the First Amendment rights implicated.<ref name=amirault/>

==Criticism==

The test was criticized by [[New York University School of Law|NYU Law]] professor Amy Adler as forcing members of the public to look at pictures of children as a pedophile would in order to determine whether they are considered inappropriate. "As everything becomes [[child pornography]] in the eyes of the law—clothed children, coy children, children in settings where children are found—perhaps children themselves become pornographic".<ref>{{cite web|url=http://www.law.nyu.edu/news/ADLER_SPECTACLES|title=Amy Adler discusses her legal scholarship in interdisciplinary forum|publisher=NYU School of Law News|archiveurl=https://web.archive.org/web/20230326022355/https://www.law.nyu.edu/news/ADLER_SPECTACLES|archive-date=March 26, 2023}}</ref>

Robert J. Danay notes, "The application of these factors, as in ''Knox'', necessitates a drawn out analysis of materials that most people would not, in the past, have considered obscene or even sexual in nature. Through such analyses, police, judges, lawyers, and, ultimately, members of the public are forced to closely inspect increasingly innocuous images of children (and children generally) to determine whether the depicted children might be acting in a sexual manner."<ref>{{cite journal|volume=11|journal=Rev. Const. Stud.|number=151|date=2005|title=Danger of Fighting Monsters: Addressing the Hidden Harms of Child Pornography Law, The|author=Danay, Robert J.|ssrn=848724 |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=848724}}</ref>

==See also== {{Portal|Law|United States|Politics|Erotica and pornography}} * [[Child erotica]] * [[Child pornography laws]] * [[Child pornography laws in the United States]] * [[COPINE scale]] * [[Legal status of drawn pornography depicting minors]] * [[Obscenity]] * [[Stanley v. Georgia]], 394 U.S. 557 (1969) * [[New York v. Ferber]], 458 U.S. 747 (1982) * [[Osborne v. Ohio]], 495 U.S. 103 (1990)

==References== {{reflist|30em}}

{{Pornography legality|state=collapsed}}

[[Category:United States obscenity case law]] [[Category:Child pornography law]] [[Category:1986 in American law]]