Defining Lewdness

Child pornography sits at the crossroads of constitutional and criminal law, writes Christopher Keleher in his January Illinois Bar Journal article, “Defining Lewdness.” Keleher notes that nudity is not the dividing line between free speech and prison, as the U.S. and Illinois Supreme courts hold that nudity—without more—is constitutionally permissible. Instead, there must be sexual conduct involving a minor to be pornographic. But the concept of child pornography is expanding beyond images of sexual conduct to include those that depict children in ways a viewer might perceive as sexual.

One example is surreptitious recordings of minors. When a minor is secretly recorded changing clothes, or knowingly recorded and not depicted sexually, courts across the country are divided on whether it is child pornography or, in statutory parlance, “lewd” or “lascivious.” Keleher says that Illinois is no exception and goes on to show how the inability to agree on what constitutes “lewd” under the Illinois child pornography statute has left a patchwork of Illinois Appellate Court decisions.

Read the article Defining Lewdness in the January issue of the Illinois Bar Journal.