In United States v. Dawson, No. 21-11425 (Apr. 5, 2023) (Wilson, Branch, Lagoa), the Court affirmed Mr. Dawson’s convictions.

The Court considered, as an issue of first impression, whether an adult who films himself exposing his genitals and masturbating in the presence of a child where the child is the object of the sexual desire in the film “uses” that child to engage in sexually explicit conduct for purposes of 18 U.S.C. § 2251(a), and held that such conduct fits squarely within the language of the statute.

On appeal, Mr. Dawson argued that he did not violate § 2251(a) because the videos underlying his convictions depicted an adult engaging in solo, adult-only, sexually explicit conduct near a fully clothed minor who was neither the focal point of the images, depicted as a sexual object, nor otherwise involved in the sexual act.  He argued that his conduct did not constitute “uses” as that term is defined.  The Court disagreed, agreeing instead with the government’s reading of § 2251(a)–that it covered passive use of a child in sexually explicit conduct.  That is, under § 2251(a), a minor must be involved in the offender’s sexually explicit conduct, but need not necessarily be actively engaging in his or her own sexually explicit conduct.

The Court noted, contrary to the Seventh Circuit in Howard, that its interpretation of “uses” in § 2251(a) did not pose a slippery slope problem because the statute ultimately requires fact-specific determinations.  As such, its passive interpretation of the term “uses” did not make the statute too broad.

The Court also declined Mr. Dawson’s invitation to rule in his favor by applying the rule of lenity because the Court found that the traditional tools of statutory interpretation provided sufficient clarity on the meaning of § 2251(a).  In so finding, the Court acknowledged that its application of the rule of lenity conflicted with those of the Third, Seventh, and Eighth Circuits.  Of note, the Court declined to hold–as the government argued–that Mr. Dawson’s rule of lenity argument should have been reviewed for plain error because he failed to raise it below.  Instead, the Court clarified that a party cannot waive lenity–parties cannot waive the application of the correct law or stipulate to an incorrect legal test.