What is a “lascivious” image?
Many courts apply the so-called Dost test to determine if a given image is considered to be “lascivious” under the law. United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom., United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987) set forth a six factor test: • Whether the genitals or pubic area are the focal point of the image; • Whether the setting of the image is sexually suggestive (i.e., a location generally associated with sexual activity, such as a bed); • Whether the subject is depicted in an unnatural pose or inappropriate attire considering her age; • Whether the subject is fully or partially clothed, or nude; • Whether the image suggests sexual coyness or willingness to engage in sexual activity; and • Whether the image is intended or designed to elicit a sexual response in the viewer. This test requires a case-by-case analysis and is devoid of bright line rules.
