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A Night To Remember

Seventh Circuit: Solo Masturbation Near Fully Clothed and Sleeping Child Does Not Constitute Production of Child Pornography

by Anthony Accurso

 

The U.S. Court of Appeals for the Seventh Circuit held that a conviction under 18 U.S.C. § 2251(a) for production of child pornography cannot be sustained where the defendant only engaged in sexually explicit conduct near a minor when the images were produced.

 

Prior to law enforcement serving a search warrant and inspecting his computers in August 2017, Matthew Howard made two videos showing himself masturbating near his sleeping and fully-clothed, 9-year-old niece. Howard pleaded guilty to several charges relating to the possession, receipt, and distribution of child pornography under §§ 2252(a)(2) and (a)(4) but went to trial on the production counts.

 

After a lengthy battle over the jury instructions pertaining to the elements of the crime, the district court allowed the jury to convict him if it found, in pertinent part, that, “The defendant knowingly used [his niece] to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.”

 

The Government argued to the jury: “This isn’t about what [his niece] did or didn’t do. The law says you look at what did the defendant use [his niece] to engage in masturbation, did the defendant use [his niece] to exhibit his genitals. It doesn’t say anything about what [his niece] engaged in.”

 

Howard was convicted and sentenced to concurrent terms of 25 years in prison on each count, along with shorter concurrent terms for the non-production counts. He appealed, arguing that the statute’s language does not support the jury instructions, which reflected the Government’s theory of the expansive types of conduct criminalized by the statute.

 

Section 2251(a) states in relevant part: “Any 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....”

 

The Government’s theory of the case rested on an expansive definition of the verb ‘use’ and a reading of the word ‘any’ to allow for the prosecution of Howard on the grounds that he violated the law when he “used” his niece to engage in sexually explicit conduct and filmed it. 

 

The Court observed that this “case represents a peculiar application of the statute. The videos in question do not depict a child engaged in sexually explicit conduct; they show Howard masturbating next to a fully clothed and sleeping child.”

 

The Court concluded “the videos are not child pornography” and rejected the Government’s expansive reading of the statute for two reasons. First, the other words near the term ‘use’ in the statute “require some action by the offender to cause the minor’s direct engagement in sexually explicit conduct.” According to the Court, reading the verb ‘use’ out of this context would violate the doctrine of noscitur a sociis, where a word “is known by the company it keeps” and the courts must “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words.” Yates v. United States, 574 U.S. 528 (2015).

 

The same applies to the word ‘any,’ said the Court, which clearly refers to the minor “when the statutory text is read in context and as a coherent whole rather than seizing on small parts of it and reading those parts in isolation.”

 

Second, the Government’s interpretation also violates the doctrine that “Laws dealing with a single subject, or in pari materia (“in a like matter”), should if possible be interpreted harmoniously.” Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 252-55 (2012). The Court said of similar statutes, “[s]pecifically, this cluster of statutes penalizes ... material involving ‘the use of a minor engaging in sexually explicit conduct.’” Quoting from § 2252(a)(4)(B).

 

The Government tried to argue that § 2251(a) doesn’t mention “child pornography” and therefore shouldn’t be read to require that what Howard produced actually be child pornography, but the Court noted that phrase “does not appear in any of the [related] statutes either.”

 

Thus, the Court rejected the Government’s theory of the case that Howard could be prosecuted based on his sexually explicit conduct alone. 

 

Accordingly, the Court vacated his convictions under § 2251(a) and noted that the Government waived the opportunity to retry him on both counts. See: United States v. Howard, 968 F.3d 717 (7th Cir. 2020).  

 

 

 

 

 

Related legal case

United States v. Howard

 

 

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