The United States Court of Appeals for the First Circuit affirmed a defendant’s conviction of possessing child pornography after rejecting his argument that the District Court should have allowed his expert witness to testify. The decision, United States v. Gerald J. Silva, essentially holds that the jurors were just as capable as the expert of recognizing pornography when they saw it.

Facts of the Case

After shutting down a website that was distributing child pornography, Canadian authorities seized the website owner’s business records and provided them to the United States Postal Inspection Service. Gerald Silva’s name and address appeared in those records. After his home was searched, Silva was charged with and convicted of six counts of receiving child pornography and one count of possessing child pornography.

Silva was one of 348 customers of the website to be charged with a crime. They included “six law enforcement officials, nine religious leaders, 40 school teachers, three foster parents, 32 children volunteers and nine health professionals.”

Ironically, Silva worked as a Rhode Island state probation officer assigned to supervise sex offenders. Silva claimed that he ordered videos from the website for professional reasons.

Meaning of Child Pornography

Federal law defines child pornography as including any visual depiction of a minor engaging in sexually explicit conduct. A federal statute defines “sexually explicit conduct” to include the “lascivious exhibition of the genitals or pubic area of any person.”

The requirement of a “lascivious exhibition” is important. It protects parents from prosecution who take photographs of their children taking a bath or playing in the nude. The word “lascivious” generally has the same meaning as the word “lewd,” but neither term is self-defining.

Federal courts generally agree that a “lascivious exhibition” of genitals occurs when the genitals are the focal point of an image. A video of a child touching his or her genitals, a photograph that shows a close-up view of genitalia, or the image of a child in a sexually suggestive pose will generally be regarded as lascivious. On the other hand, a more distant photograph of a nude child whose legs are pressed together and who is swinging on a swing set probably will not be considered lascivious.

The Proposed Expert Testimony

Some images fall into a gray area between pornographic nudity and permissible nudity. In particular, whether a pose is innocent or sexually suggestive is often a matter of opinion. Silva’s attorney hoped to exploit that gray area by using an expert witness to bolster the contention that certain images were not pornographic.

Silva’s lawyer proposed to call John Leo, a retired Professor of English at the University of Rhode Island, as an expert in film and video. Professor Leo would have testified that the settings for the videos were not sexually suggestive. Leo would also have testified that the children’s poses and conduct were not sexually suggestive.

The Legal Test

Federal courts follow Rule 702 of the Federal Rules of Evidence in deciding whether expert testimony should be admitted in a federal trial. Rule 702 allows a court to admit expert testimony if the testimony:

• would help the jury understand the evidence or decide a fact that is important to the verdict;

• is based on sufficient facts or data;

• is the product of reliable principles and methods; and

• is based on a reliable application of those principles and methods to the facts of the case.

The first question was at issue here: whether Professor Leo’s opinion would have helped the jury understand whether the videos constituted child pornography.

The Decision

The court of appeals held that Professor Leo was in no better position than the jurors to form an opinion about the videos. He did not purport to have an opinion of the videos’ artistic merit or of the reason a buyer would want to watch the videos. He did not suggest that he knew why the producer of the videos created them.

According to the court of appeals, the jurors were just as capable as Professor Leo of watching the videos and deciding whether the conduct and poses that they depicted were sexually suggestive. For that reason, Professor Leo’s opinion was not deemed helpful to the jury and his testimony was disallowed.

Given the language of the court of appeals’ opinion, a different result might have been reached if Silva had called an art historian or a filmmaker who could testify that the videos had artistic merit and that they fit within an artistic tradition that was unrelated to pornography. Testimony that the focus of the work as a whole is artistic rather than sexually titillating might satisfy Rule 702. Of course, whether any expert exists who would have formed that opinion after viewing the videos that Mr. Silva possessed is another question.

Whether gender attraction can be changed is the subject of expert testimony in a New Jersey trial. Conversion therapy — a controversial practice that promises to help gay men and lesbians overcome unwanted same-sex attraction — is at the core of a lawsuit filed by the Southern Poverty Law Center (SPLC) against an organization called Jews Offering New Alternatives for Healing (JONAH). The lawsuit contends that conversion therapy amounts to consumer fraud.

Perspectives on Conversion Therapy

Conversion therapy, sometimes known as reparative therapy, is intended to change an individual’s sexual identity or orientation. About 70 organizations in 20 states offer conversion therapy.

Arthur Goldberg, co-executive director of JONAH, contends that “homosexuality is a learned behavior which can be unlearned, and that healing is a lifelong process.” Taking the position that same-sex attraction is not a disease to be cured, the American Psychiatric Association (APA) and other organizations representing mental health professionals say that conversion therapy is ineffective and can be harmful to patients.

Three states and the District of Columbia prohibit conversion therapy programs from furnishing services to minors. With the support of the White House, federal legislation has been proposed that would ban licensed therapists in for-profit institutions from offering conversion therapy. The ban would not affect nonprofit counseling offered by religious groups.

The SPLC Lawsuit

The SPLC brought its lawsuit on behalf of six plaintiffs. The lawsuit, based on New Jersey’s Consumer Fraud Act, alleges that JONAH violated the Act’s prohibition of deceptive and fraudulent business practices by misrepresenting that same-sex attraction is a mental disorder and by falsely claiming that conversion therapy effectively changes sexual orientation. The plaintiffs seek restitution of the fees they paid to JONAH and compensation for the costs they incurred for therapy to recover from the emotional distress that JONAH allegedly inflicted upon them.

The Freedom of Conscience Defense Fund (FCDF) is defending JONAH. The FCDF takes the position that adults have the right to give greater weight to their religious faith than they give to their “putative sexual identity.” The FCDF contends that individuals who want to rid themselves of sexual desires that conflict with their faith are entitled to seek help from licensed professionals who share their beliefs.

The Court’s Rulings on Expert Testimony

Each side has attempted to bar the testimony of expert witnesses offered by the other side. Those efforts met with only partial success. The court denied the JONAH’s motion to prohibit three SPLC witnesses from giving any expert testimony.

The SPLC asked the court to prohibit JONAH’s expert witnesses from testifying that homosexuality is a “clinical condition” or disorder rather than a normal variant of human sexuality, a position that has been rejected by the APA and every major national and international professional organization in the field of psychiatry. JONAH countered that its experts based their opinions upon professional experience and valid methodologies and that the APA (and similar organizations) are advancing a political, rather than a scientific, opinion.

The court excluded proposed testimony concerning Orthodox Judaism’s view of homosexuality and the alleged harm that homosexuality does to society on the ground that those opinions had no relevance to the claims of fraud that the plaintiffs assert. The court also prohibited the experts from expressing the opinion that the plaintiffs’ claims to have been deceived are untruthful since the credibility of witnesses is for the jury, not the experts, to decide.

New Jersey follows the Frye standard, which admits expert testimony only if it is based on generally accepted science. The court declined to accept JONAH’s argument that the APA and other professional organizations all abdicated their responsibility to base their conclusions on scientific research rather than political correctness. The court concluded that the “overwhelming weight of scientific authority concludes that homosexuality is not a disorder or abnormal.” It therefore barred the experts from testifying that homosexuality is a mental disorder and not a normal variant of human sexuality. Since the proposed expert testimony about the benefits of conversion therapy was premised on the belief that homosexuality is a disorder or abnormal, the court also disallowed that testimony.

The Issues at Trial

While the scientific community agrees that homosexuality is normal, it has not produced a shared understanding of why some people are gay and others are straight. The extent to which people voluntarily or unconsciously change their sexual orientation is also controversial, given that some people experience a “fluidity” in their sexual identity over their lifetime. According to a journalist for The Atlantic who wrote about the SPLC suit, those gaps in expert knowledge have contributed to the growth of conversion therapy and may be the key to the trial’s outcome.

The court gave the SPLC a partial victory before the trial started by granting summary judgment in its favor on its claim that JONAH’s advertising violated the Consumer Fraud Act by misrepresenting that homosexuality is a disease or disorder and by advertising its “success rate” when it made no effort to track client outcomes. With the help of their experts, the plaintiffs will still need to prove that those misrepresentations caused them harm in order to prevail. The case is expected to go to the jury before the end of June.