2020 IL App (3d) 160316
Ill. App. Ct.2020Background
- Defendant Drew W. Barger turned his phone over to police during a drug investigation; a hidden folder contained six images; he admitted downloading them after initially denying knowledge.
- One contested photograph depicted a completely nude prepubescent girl (appearing ~8–10) seated on a tether ball/ball swing at a beach, legs slightly spread, vaginal area visible, no pubic hair or breast development; photo taken from a lower/closer angle; a website name was across the image.
- Defendant was charged with six counts of child pornography (one count per image); after a bench trial the court convicted on one count based on the tether-ball photograph and acquitted on the others; defendant received an extended 10‑year prison term.
- On appeal Barger argued (1) the photograph was not a lewd exhibition under Illinois child‑pornography law and therefore not child pornography, and (2) alternatively, he could not reasonably have known the child was under 13.
- The Third District reviewed the image de novo, applied the six‑factor Lamborn test for lewdness, concluded only the nudity factor applied, held the photograph was not lewd, and reversed the conviction and sentence outright.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the photograph constituted a "lewd exhibition" and thus child pornography | Photo met the Lamborn lewdness factors (focal point/angle, sexually suggestive setting/pose, etc.) | Only nudity present; nudity alone cannot satisfy the multi‑factor lewdness test | Reversed: image not lewd; only the nudity factor present; conviction vacated |
| Whether defendant reasonably should have known the subject was under 13 | Defendant should have reasonably known age (supports Class 2 felony) | Defendant argued he did not reasonably know age (reduces offense class) | Not reached — appellate court disposed of case on lewdness ground |
Key Cases Cited
- People v. Lamborn, 185 Ill. 2d 585 (Illinois 1999) (establishes six‑factor test and de novo review of images)
- People v. Sven, 365 Ill. App. 3d 226 (Ill. App. 2006) (application of lewdness factors; voyeuristic viewpoint analysis)
- People v. Lewis, 305 Ill. App. 3d 665 (Ill. App. 1999) (full‑body nude photo not necessarily lewd when focal point not on genitals)
- People v. Wayman, 379 Ill. App. 3d 1043 (Ill. App. 2008) (nudity alone insufficient; context and pose matter)
- People v. Knebel, 407 Ill. App. 3d 1058 (Ill. App. 2011) (close angle and legs spread placed genitals in forefront — lewd)
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (factors for determining whether images are sexual in nature)
- United States v. Villard, 885 F.2d 117 (3d Cir. 1989) (attitude toward attire/nudity in lewdness analysis)
- United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) (lewdness focuses on photographer's exhibition for an audience of pedophiles)