Photo Credit: https://cesie.org/en/project/stop/ (last visited Feb. 25, 2021).
Written By: Heather Sutton
Member, American Journal of Trial Advocacy
Considering the recently exposed Epstein fiasco, exempt registration status laws in California for sex with minors (subject to limitations), and the large-scale dissemination of the “social commentary” Cuties’ by Netflix, a discerning and concerned citizen can reach no conclusion other than—American Children are under Sexual Attack.
In July of 2019 Epstein was arrested on sex trafficking charges. Epstein has a long history of civil and criminal charges against him for sex related issues.[i] The grand jury indictment alleges that “dozens” of underage girls were brought into Epstein’s mansions for sexual encounters.[ii] He was denied bail,[iii] and his jail time ultimately led to his death—a disputed suicide hanging.[iv] After his death, all sex trafficking charges were dismissed[v]; thus, many of Epstein’s victims, including “dozens” of minors, have yet to receive justice for the atrocities committed against them. The revelation of the widespread abuse of the Epstein tales and the rumored “flight logs” shed light on the modern-day slave trade. These activities seemed to spark outrage, if not curiosity, and one would think the backlash would lead to a “tightening of the belt” legislation—instead, in places like California recent legislation removes some of the mandatory barriers for sexual predators and replaces them with discretionary impediments.[vi] California Senate Bill 145 was signed by Governor Newsom on September 11, 2020 and it removes the mandatory requirement to register as a sex offender for anal and oral sex abusers if the age gap is not more than 10 years between the parties.[vii]
The California legislature and others claim this a landmark victory in achieving a step towards equality for young LGBTQ adults by treating all statutory rape cases equally. To promote this legislation as a victory is a mistake that ignores the real issue, which is the expansion of legitimizing abuse of minors. This promotion of equality makes the flawed assumption that the original law was just or that it served any protectionist measure for our society’s youth. As one critique noted: “They have assumed the morality of an existing law, and sought to apply it equally, rather than identifying the primary concern of immorality which makes the issue of inequality redundant.”[viii] Despite the removal of blatant discrimination, one cannot ignore that the increasing reductions of penalties for violations against minors only acts to perpetuate the sexual abuse of minors.
Sadly, the sexual attack on America’s children does not end in Hollywood or in the California legislator; rather, through the broadcasting of Netflix’s Cuties it is a force that permeates homes and infiltrates the mind directly. Cuties is not the first to invade the privacy of an individual’s home with unsolicited messages, but despite the long history of using media and film as indoctrination of society, this particular film is likely the most direct and obscene.
Unsurprisingly, it did not take long for #cancelNetflix to emerge after the release of this film, and a lawsuit to follow. The social commentary that apparently was intended to shed light on the injustices of hyper-sexualization of children, has done exactly what it claims to be against. The “coming-of-age” story of Amy, an 11-year-old, Senegalese girl who “starts to rebel against her conservative family’s traditions when she becomes fascinated with a free-spirited dance crew”[ix] is chalked full of many highly sexualized scenes and erotic dance moves.
Some have labelled the film child pornography and in October of 2020 an East Texas grand jury indicted Netflix for the “lewd depiction” of minors.[x] Undoubtedly a legal battle is gearing up and it appears Netflix has an uphill fight to meet the legal standards necessary for their broadcast to not be deemed a dissemination of child pornography.
The Department of Justice explains that Section 2256 of Title 18, United States Code, defines child pornography as “any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age). Visual depictions include photographs, videos, digital or computer generated images indistinguishable from an actual minor . . . .”[xi] “Sexually explicit conduct” includes the “actual or simulated . . . lascivious exhibition of the genitals or pubic area of any person.”[xii]
United States v. Dost, outlines six helpful criteria for determining sexually explicit conduct, including a sexually suggestive setting; inappropriate attire or an unnatural pose for a child; a suggestion of sexual coyness or willingness to engage in sexual behavior; and whether the depiction is intended or designed to elicit a sexual response in the viewer.[xiii] The Dost criteria are neither definitive nor exhaustive.
These factors incorporate much of the activity depicted in Cuties and remain an important benchmark in child pornography cases. The “any visual depiction of sexually explicit conduct” standard serves as a good reminder that child pornography does not receive First Amendment protection and thus the criteria have been designed in a manner indicating they are not required to meet the Miller test for obscenity.[xiv] Being without First Amendment protection means child pornography may be totally banned on the basis of its content, without the requirement of illustrating a compelling government interest, but rather can be banned in the absence of any evidence of harm.[xv]
Regardless what literary value Netflix claims Cuties to possess, it will not serve as a legal defense if they are indicted for distribution and advertisement of child pornography. The film is rated TV-MA indicating mature adult content; thus, this film was not made for children and the content is on its face sexually explicit and more than suggestive at times. Intriguingly, the movie description and film cover image seem to appeal to children almost advancing the idea of its value as a social commentary—but the content says otherwise. Whether Netflix can overcome the legal hurdles surrounding its content is speculation because regardless of what artistic or social value it may possess, neither are factors relevant for analysis when identifying child pornography or lewd depictions of minors.
These prurient fascinations once lived in the dark shadows of society, amongst Hollywood elite, and far-removed elite politicians, but long gone are the days where it remains in those sectors. The broadcasting of this deviant sexual display of children directly into the homes of American families illustrates a social conditioning to view this behavior as normal. If Epstein’s real-life crimes on minors were not enough, imagine the large-scale effects on minors if Netflix can continue streaming such blatant displays of deviant behavior straight into the family home. It will be only the beginning. The ambush on protection for minors must end. If this society allows the streaming of such insidious behavior directly into our homes, then it will only act to promote the “Epstein’s” of the world and lead to more legislative stripping of any fabric of protection that remains.
[i] Billionaire sex offender Jeffrey Epstein charged with sex trafficking, The Jerusalem Post (July 7, 2019), https://www.jpost.com/International/Billionaire-sex-offender-Jeffrey-Epstein-charged-with-sex-trafficking-594864.
[ii] Chaitin, Daniel, Jeffrey Epstein arrested for sex trafficking of minors in Florida and New York, Wash. Examr. (July 7, 2019), https://www.washingtonexaminer.com/news/jeffrey-epstein-arrested-for-sex-trafficking-of-minors-in-florida-and-new-york-report.
[iii] Mangan, Dan & Breuninger, Kevin, Judge denies Jeffrey Epstein bail in child sex trafficking case, citing ‘danger’ to public, CNBC (July 18, 2019), https://www.cnbc.com/2019/07/18/jeffrey-epstein-bail-hearing-in-child-sex-traffic-case.html.
[iv] 60 Minutes Investigates the Death of Jeffery Epstein, CBS (Jan. 5, 2020), https://www.cbsnews.com/news/did-jeffrey-epstein-kill-himself-60-minutes-investigates-2020-01-05/.
[v] Neumeister, Larry, Judge ends case against Epstein, with a nod to the accusers, Associated Press (August 29, 2019), https://apnews.com/9032d5b4c8bb4175958da4e545f60543.
[vi] Calif. SB 145; See also Cal. Penal Code § 290 (West).
[vii] Id. at ch. 79.
[viii] Haworth, Ian, False Equality – SB-145 Places More Children At Risk, TownHall (Sept. 14, 2020), https://townhall.com/columnists/ianhaworth/2020/09/14/false-equality–sb145-places-more-children-at-risk-n2576144.
[ix] Cuties, Netflix, https://www.netflix.com/title/81111198.
[x] Cramer, Maria, Netflix Is Charged in Texas With Promoting Lewdness in ‘Cuties’, N.Y. Times (October 7, 2020), https://www.nytimes.com/2020/10/07/business/cuties-netflix-texas.html.
[xi] 18 USC §2256 (8)(b); Citizen’s Guide to U.S. Federal Law on Child Pornography, Dept. of Justice (May 28, 2020), https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-child-pornography#:~:text=Images%20of%20child%20pornography%20are,under%2018%20years%20of%20age); New York v. Ferber, 458 U.S. 747, 764 (1982).
[xii] U.S. v. Horn, 187 F.3d 781 (9th Cir. 1999) (explaining that a depiction is lascivious when the child is nude or partially clothed, the focus of the depiction is child’s genitals or pubic area, and the image is intended to elicit a sexual response in the viewer.); U.S. v. Kemmerling, 285 F.3d 644 (8th Cir. 2002).
[xiii] 636 F. Supp. 828, 832 (S.D. Cal. 1986).
[xiv] Ferber, 458 U.S. 747, 764 (1982).
[xv] Cohen, Henry, Child Pornography: Constitutional Principles and Federal Statutes, CRS Report 94-406 (October 10, 2008).
American Journal of Trial Advocacy 