As used in the Sexual Exploitation of Children Act:

A. "prohibited sexual act" means:

(1) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex;

(2) bestiality;

(3) masturbation;

(4) sadomasochistic abuse for the purpose of sexual stimulation; or

(5) lewd and sexually explicit exhibition with a focus on the genitals or pubic area of any person for the purpose of sexual stimulation;

B. "visual or print medium" means:

(1) any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer or electronically generated imagery; or

(2) any book, magazine or other form of publication or photographic reproduction containing or incorporating any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer generated or electronically generated imagery;

C. "performed publicly" means performed in a place that is open to or used by the public;

D. "manufacture" means the production, processing, copying by any means, printing, packaging or repackaging of any visual or print medium depicting any prohibited sexual act or simulation of such an act if one or more of the participants in that act is a child under eighteen years of age; and

E. "obscene" means any material, when the content if taken as a whole:

(1) appeals to a prurient interest in sex, as determined by the average person applying contemporary community standards;

(2) portrays a prohibited sexual act in a patently offensive way; and

(3) lacks serious literary, artistic, political or scientific value.

History: Laws 1984, ch. 92, § 2; 1993, ch. 116, § 1; 2001, ch. 2, § 1.

The 2001 amendment, effective July 1, 2001, added Subsection E.

The 1993 amendment, effective June 18, 1993, in Subsection A(5), substituted "lewd and sexually explicit exhibition with a focus on" for "lewd exhibition of"; in Subsection B(1), substituted "computer diskette, videotape, videodisc or any computer or electronically generated imagery" for "videotape or videodisk"; in Subsection B(2), substituted "computer diskette, videotape, videodisc or any computer generated or electronically generated imagery" for "videotape or videodisk"; and in Subsection D, deleted "for pecuniary profit" following "repackaging" and substituted "eighteen" for "sixteen".

Manufacture of prohibited images. — The copying of digital pornographic images to a portable storage device creates a new digital copy of the prohibited image sufficient to constitute manufacturing. State v. Smith, 2009-NMCA-028, 145 N.M. 757, 204 P.3d 1267, cert. quashed, 2009-NMCERT-012, 147 N.M. 601, 227 P.3d 91.

"Lewdness" factors considered. Factors used to help determine whether a photograph involving a child is lewd include consideration of whether: (1) the focus is on the genital or pubic area; (2) the setting is sexually suggestive; (3) the child is depicted in an unnatural pose, or in inappropriate attire, considering the child's age; (4) the child is fully or partially clothed; (5) the depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) the depiction is designed to elicit a sexual response in the viewer. State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668, overruled in part, State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105; State v. Myers, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13.

"Sexually explicit exhibition". A "lewd and sexually explicit exhibition" means a visible display or readily discernable depiction of a child engaged in sexually provocative conduct; thus, to qualify, a photograph must be identifiable as hard-core child pornography, that is, it must display visible signs of sexual eroticism, rather than merely depict a naked child. State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668, overruled in part, State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105; State v. Myers, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13.

"Focus on the genitals or pubic area". Focus can be determined by photographic elements, such as design, composition, lighting, positioning, attire, and setting; in some instances the question of whether a photo focuses on the genitals or pubic area is apparent on the face of the photo and therefore can be dealt with as an undisputed fact the photo either focuses on the area or it does not. State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668, overruled in part, State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105; State v. Myers, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13.

"For the purpose of sexual stimulation". Under an objective standard, the central question is whether, based on the overall content of a photograph, a reasonable person could find the photograph was intended to elicit a sexual response; it is not a defendant's private reaction that transforms an innocent photo into a lewd exhibition, but rather the objectively ascertainable intended effect on the viewer. State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Under an objective intent analysis, child pornography is not created and the Sexual Exploitation of Children Act is not violated simply because a person derives sexual enjoyment from otherwise innocent photographs; rather, the focus is on the harm to the child that flows from trespasses against the child's dignity when treated as a sexual object. State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668, overruled in part, State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105; State v. Myers, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13.

"Patently offensive" community tolerance standard adopted. — Contemporary community standards should be judged by whether the average person or community would be tolerant of the materials in the possession of another, even though most members of the community might themselves be offended; community tolerance thus determines whether the material is patently offensive. State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668, overruled in part, State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105; State v. Myers, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13.