As U.S. Supreme Court Justice Potter Stewart once famously said about obscenity: “I know it when I see it.” If you are charged with child pornography, your case may likewise depend on how your particular judge sees it.

Under 720 ILCS 5/11-20.1, the offense of child pornography includes knowingly possessing an image of a child that you should have reasonably known was under age 18 where the child is depicted in any pose or setting while lewdly exhibiting the child’s unclothed (or transparently clothed) genitals, pubic area, buttocks, or fully or partially developed breast (if female).

In People v. Barger, the defendant was convicted based on one photo of a nude 8- to 10-year old girl swinging on a tether ball on the beach. The appellate court applied a six-factor test to decide if the image was lewd: (1) Was the image’s focal point was on the child’s genitals? (2) Was the setting sexually suggestive, (3) Was the child depicted in an unnatural pose or in inappropriate attire considering the child’s age? (4) Was the child fully or partially clothed or nude? (5) Did the image suggest sexual coyness or a willingness to engage in sexual activity? and (6) Was the image intended to elicit a sexual response in the viewer? Not all six factors must be present to find that an image is lewd.

The appellate court found that only one of the four factors was present—the child was nude. Otherwise, the photo’s focal point was not the child’s genitals; there was nothing sexually suggestive about the photo’s setting which was the beach; the child’s pose was not unnatural; nothing suggested sexual coyness and the photo was not taken in a way to elicit a sexual response. Therefore, the defendant’s conviction was overturned.

If you have been charged with child pornography or a similar offense, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Should you have known the child was under age 18? Is the image truly lewd? An attorney who is familiar with your particular judge can best argue the six factors in the light most favorable to you in hopes of winning your acquittal.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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