A novel argument from an appellant in the 1st District Court of Appeals (Houston) case of
Eubanks v. State. Donald Eubanks, who was convicted of two counts of indecency with a child, two counts of sexual performance by a child, two counts of possession of child pornography, and two counts of aggravated sexual assault of a child, was sentenced to life in prison and $80,000 in fines (and quite deservedly so, if you ask me). He raised several issues on appeal, but the one that caught my attention was his argument that the evidence was legally insufficient to establish the counts of sexual performance by a child and possession of child pornography.
Specifically he argue[d] that the photos that he was alleged to have produced and possessed were of the "girls' undeveloped chests" and "did not depict breasts" for purposes of the sexual performance by a child and possession of child pornography statutes.
The Court overruled this issue, holding that puberty matters not when it comes to charges of sexual performance by a child and possession of child pornography. The Court stated:
A person commits the offense of sexual performance by a child if knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.
[The law does not] require that the child‘s breasts be developed, and the definition of "sexual conduct" as applies to both offenses specifically contemplates that a "lewd exhibition of... any portion of the female breast below the top of the areola" is sufficient to constitute "sexual conduct" as required for the offenses of sexual performance by a child and possession of child pornography.
Good try Mr. Eubanks, but a child is a child, regardless of how developed (or undeveloped) she may be.
