From Federal charges filed in August of this year.

"On or about July 6, 2009, the date being approximate, in the [ district ],
[ name ], defendant herein, knowingly attempted to
use a minor, that is, seven-year-old Jane Doe #4, to engage in sexually explicit conduct for the
purpose of producing a visual depiction of such conduct,"

[ edits mine, to focus on terminology ]

This is usually as much as is mentioned in news releases. The term "sexually explicit conduct" suggests to most that there was something remotely sexual happening in front of the camera in order to produce a "visual depiction" thereof. And not just remotely sexual explicitly sexual. ( Explicit; "Stated clearly and in detail, leaving no room for confusion or doubt." )

From this, the non-agnostic must draw the conclusion that the conduct before the camera that the minor was used for was of a nature that would be evidently sexual to all who saw it. Right?

Now lets proceed to the "sexually explicit conduct."

...."that is, without her knowledge the defendant took close-up shots of the crotch area of her bathing suit;"

He has engaged her in "sexually explicit conduct" of which she is without knowledge. Of course she's without knowledge, because she's a 7 year old wearing a bathing suit.

Whether by Lanning's standards or the COPINE scale ⚠️ ↗, this qualifies as "erotic" but not "sexual;" in short, the context of the image strongly suggests a sexual interest on the part of the viewer, but not necessarily sexual conduct on the part of the person being viewed.

So we now know that "engaging a minor in sexually explicit conduct" may involve merely being in the presence of a child. While the laws criminalize the image; i.e. a picture cropped so as to emphasize the genital region of a minor, the terminology purposefully suggests that the defendant has engaged the child in some sort of sexual conduct outside of the image itself.

This bit of hyperbole, just like that relating to "traumatic" abuse, tends to backfire. Much abuse goes unreported because the term "traumatic" suggests that there was nothing pleasant or ambiguous about it. It leaves the victim wondering if there's something wrong with them for finding something abusive without finding it "traumatic."

Similarly, describing imagery as depictions of "sexually explicit conduct" and making the un-agnostic believe that something clearly sexual was happening in front of the camera leads to folks who see the real stuff being mislead into thinking that it couldn't qualify as CP ( "after all, its just a strangely cropped image of a girl by the pool." )

The charges in question http://www.kmbc.com/download/2011/0809/28817232.pdf ⚠️ ↗ come from a case where now the higher authorities are in trouble for failing to report the CP.

"Diocese officials ultimately concluded that the pictures did not appear to be pornographic because they did not depict sexual conduct, sexual contact, a sexual performance, or meet other criteria they believed would constitute child pornography, according to the Graves report and interviews with other sources."

Its clear that the Diocese authorities know what "sexually explicit conduct" should be. And being non-agnostic they know that they weren't seeing what prosecutors try to convince you they're seeing ( while still withholding the "toxic" images from public view. )

Now some of the charges filed by the Fed are unambiguously explicit by most general agreement; "an image from a vantage point between the childÂ’s legs as she was lying down, with her panties pulled aside, and focusing almost exclusively on the childÂ’s naked vagina and pubic area"

We can discuss whether such an image should be CP, but I think GCers know that such an image is CP.

But note, there is no difference in the charge whatsoever from being in the presence of a girl in a swimsuit and taking a strangely cropped photo of it, and from being in the presence of a girl with her panties pulled aside showing her unclothed genitals while snapping a picture. Its all the same to the Fed, but I doubt that the general public is aware that clothed girls and naked girls are the same if the image is cropped funny.

The hyperbole and hysteria serve neither the public, the police, nor even the pervs well. The public is misled to believe the worst and isn't reacting to what's really going on. Because they have been misled, they may be seeing crimes and failing to report them; getting themselves in trouble and leaving the police underinformed. And finally those who want eye-candy but desire to be law-abiding citizens are being given a standard in which all manner of images are conflated and obscured. It hinders their ability to stay within the bounds of the law.

Dante