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Is It A FELONY To Download Cuties? Might Be…

Certainly Close Enough To Cause Concern…

I know this has potential to be click bait. Is the production and even the download of Cuties illegal in Virginia? But here is the law and it is not a frivolous conclusion:

Virginia law prohibits the production and possession of child pornography.

Here is the definition of child pornography:

…”child pornography” means sexually explicit visual material which utilizes or has as a subject an identifiable minor.

Here is what the Federalist’s Madeline Osburn wrote that Cuties contains:

An initial “Parent’s Guide” for the film on IMDB.com included warnings of erotic dance scenes that “purposefully exploit & objectify numerous scantily clad underage girls,” including one who “lifts her crop top to fully display her bare breast.” Another warning describes “lengthy & excessive closeup shots of breasts, bums, and spread crotches.”

Remembering that description for a minute, let’s go back to the law. Assuming the people in this movie doing this stuff are minors, the definition of “sexually explicit visual material” is:

“…the term “sexually explicit visual material” means a picture, photograph, drawing, sculpture, motion picture film, digital image, including such material stored in a computer’s temporary Internet cache when three or more images or streaming videos are present, or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390…”

So what is a “lewd exhibition of nudity” – let’s start with the easy part: Nudity (from Code 18.2-:

“Nudity” means a state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.

Understand, not every depiction of nudity is illegal. Otherwise it would be illegal to show Michelangelo’s David or a Goya painting in public. The cases as interpreted by the state appellate courts seem to be uncomfortably close to child pornography.

In a 2019 case, our Court of Appeals defined “lewd” like this:

“Lewd” is not defined by statute, but this Court has described it as a “synonym of ‘lascivious’ and ‘indecent.’ ” Asa v. Commonwealth, 17 Va. App. 714, 718, 441 S.E.2d 26 (1994) (quoting Dickerson v. City of Richmond, 2 Va. App. 473, 479, 346 S.E.2d 333 (1986) ). “Lascivious” describes “a state of mind that is eager for sexual indulgence, desirous of inciting to lust[,] or of inciting sexual desire and appetite.” Id. (quoting Dickerson, 2 Va. App. at 479, 346 S.E.2d 333 ).
Ele v. Commonwealth, 70 Va. App. 543, 829 S.E.2d 564 (Va. App. 2019)

Go back to the description from the Federalist (No, I am NOT going to watch this to write this blog post!) and the description does seem to go to sexuality involving children:

Another warning describes “lengthy & excessive closeup shots of breasts, bums, and spread crotches.”

That kind of emphasis on sexuality and sexual organs can appeal to lewdness as opposed to artistic reaction. Technically child porn DOES NOT have to be obscene to be unlawful under Virginia law. The General Assembly, probably in response to a United States Supreme Court case, took out a reference to “obscene for children” from the definition of “sexually explicit visual material” in this and related statutes.

I am not prepared to say categorically possession of Cuties is illegal in the Commonwealth. I doubt there will be any prosecution. There are defenses to raise. But Senator Tom Cotton has called for a DOJ investigation. It is close to the line. This film should not have been made in the manner it was made.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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