United States v. Amirault

United States v. Amirault was a 1999 case in which the First Circuit noted that whether the photograph is intended or designed to elicit a sexual response from the viewer "is the most confusing and contentious of the Dost factors." The court further noted:

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Is this a subjective or objective standard, and should we be evaluating the response of an average viewer or the specific defendant in this case? Moreover, is the intent to elicit a sexual response analyzed from the perspective of the photograph's composition, or from extrinsic evidence (such as where the photograph was obtained, who the photographer was, etc.)? In its brief, the government suggests that the subjective reaction of the defendant is significant. Correspondingly, the government contends that Amirault's admission that he obtained the photograph because he found it erotic amounted to a concession that the photograph is sexually explicit. We believe, however, that it is a mistake to look at the actual effect of the photograph on the viewer, rather than upon the intended effect. See Villard, 885 F.2d at 125. If Amirault's subjective reaction were relevant, a sexual deviant's quirks could turn a Sears catalog into pornography. See id.; Wiegand, 812 F.2d at 1245 ("Private fantasies are not within the statute's ambit.").

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