Could Netflix’s ‘Cuties’ Be Prosecuted for Being Child Porn?

The French film “Cuties”, which won an award at Sundance Film Festival, is about an 11-year-old Senegalese girl living in Paris who rebels against her religious, oppressive family and joins a dance group of young girls trying to mimic sexualized dance routines seen in western culture and social media.

Netflix’s recent release of this film stirred up controversy and encountered intense backlash for the film’s alleged sexual exploitation of underage girls. Its release sparked the hashtag #CancelNetflix trend on Twitter and led to a huge surge in cancellation of Netflix subscriptions in the U.S. Although Netflix changed the poster for “Cuties,” which had depicted the young girls in flashy, revealing dance uniforms in “sexy” poses, and publicly apologized for its choice of promotional artwork, outrage against the release of “Cuties” ensued and many demanded the film’s removal from the platform.

Republican Senator Ted Cruz sent a letter to the Justice Department demanding an investigation into Netflix or “Cuties” filmmakers for possible violations of federal laws against the production and distribution of child pornography.

Republican Senator Tom Cotton similarly tweeted: “Like any parent, I find @netflix decision to peddle child pornography disgusting. And it’s criminal. @TheJusticeDept should take swift action.”

Representative Tulsi Gabbard called the film “child porn”, which “will certainly whet the appetite of pedophiles & help fuel the child sex trafficking trade.”

Since it is unclear whether these commentators have actually seen the film, are these characterizations of “Cuties” accurate?

After watching the film myself, it seems like the backlash could have been largely attributed to Netflix’s misrepresentation of the film through its marketing. “Cuties” is clearly a social commentary film that criticizes the early hyper-sexualization of young children. While the scenes of young girls in revealing clothing trying to mimic highly sexualized dance moves such as twerking were extremely uncomfortable to watch, they are designed to shock and provoke the viewer. It is clearly an attempt to depict how young girls are influenced by society to look and act in certain ways that mimic and recreate what they see on social media and the entertainment industry. “Cuties” director Maïmouna Doucouré explains her motivations behind the film in an interview.

For those who have watched the film, it is clear that the filmmaker’s intent is quite the opposite of supporting sexualization of children or appealing to pedophiles. However, even though the film’s intent is a critique of hyper-sexualization of children, could the process of its production through the use of child actors (of ages 12 to 14) be harmful for these child actors and even violate child pornography laws?

The main rationale behind excluding child pornography from First Amendment protections is preventing physical and psychological harm to children involved in the production of child pornography. New York v. Ferber, 458 U.S. 747 (1982). Contrary to obscenity laws, Ferber suggests that there is no exception for works of value or art under child pornography laws because the harm is to the actual child involved in production, regardless of the value or meaning.

So what counts as child pornography? Federal law defines child pornography as any “visual depiction” of “sexually explicit conduct” involving a minor (persons under 18 years of age). 18 U.S.C. § 2252. “Sexually explicit conduct” includes intercourse, sexual bestiality, masturbation, sadomasochistic abuse, and “lascivious exhibition of the genitals”. 18 U.S.C. § 2256. In regards to “Cuties”, the relevant part of this definition is “lascivious exhibition of the genitals.” United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) established six factors to determine whether something is a “lascivious exhibition of genitals”:

1. Whether the focal point of the visual depiction is on the child’s genitalia or pubic area.
2. Whether the setting of the visual depiction is sexually suggestive.
3. Whether the child is depicted in an unnatural pose or in inappropriate attire.
4. Whether the child is fully or partially clothed or nude.
5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.
6. Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Courts applying the Dost factors tend to do case-by-case analysis, and are split on how many factors are needed. In applying these factors to “Cuties,” there are multiple scenes in “Cuties” in which the underage girls dance group perform highly sexualized dance moves. In the dance scenes, the children were depicted in unnatural poses and inappropriate attire – revealing clothes (tight crop tops and shorts) and sexual poses such as twerking, opening their thighs, crawling on ground etc.  In these scenes, there are extreme closeups on the girls’ butts, thighs, and pubic area (although covered by clothing). The children also mimic sexual expressions such as biting lips, pouting, putting fingers in mouths, etc. In one scene, the protagonist attempts to seduce a man. In another scene, the protagonist takes off her underwear and takes a picture to post online.

Although there is no child nudity in “Cuties”, U.S. v. Knox, 32 F.3d 733 (3d Cir. 1994) established that the material does not have to contain nudity to be child pornography. In Knox, the important question is whether the material would appeal to the lascivious interest of an audience of pedophiles. The Knox video, which was ruled to be child pornography, sounds similar to some of the dance scenes in “Cuties” – children dancing in abbreviated clothing, with closeups on the children’s genital areas although covered in clothing. The difference here is obviously that the scenes in “Cuties” are not intended to elicit a sexual response in the viewer but rather pushes the viewer to think about important issues. However, if we must consider it from the perspective of a pedophile viewer, it’s possible that these scenes would appeal to their sexual interests. Although pedophile viewers probably only make up a minor fraction of the population, should courts err on the side of protecting children and view materials from a pedophile perspective when applying child pornography laws? Such an interpretation could be overbroad. Viewed from a pedophile’s perspective, even a picture/video of a fully dressed child doing innocent activities might elicit a sexual response – where do we draw the line?

What about potential production harm to children involved in “Cuties” production? Even if the child actors and their parents consented fully, one could potentially argue that there might still be psychological and emotional harm to the child actors. Parental consent isn’t a strong buffer against harm, as parents can sometimes be ignorant of potential emotional harm to their children. Consent from a minor is also not regarded as valid, considering a child’s lack of experience and judgment. A child might at the time think it is okay to do as directed (such as the sexual dance moves, sexual expressions, taking off her pants and snapping a picture, etc.), but they might not fully understand the meaning behind these actions – this is precisely the issue this film is trying to criticize. This highlights the difficulties and problems behind depicting something in order to criticize it.

Although “Cuties” raises some difficult issues that the law perhaps does not give a clear or satisfactory answer to, a thought-provoking film like “Cuties” with a powerful message that is uncomfortable to watch perhaps should be encouraged in today’s society. Those who haven’t seen it should not reach an uninformed judgment about the film.