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First, I'm not a lawyer, and I'm not even based in the US, so what little legal knowledge I have is even less likely to be accurate when considering US law!
That said, it appears to me on a fairly lightweight reading of all this stuff (so far) that technically you could argue that simulated behaviour, as opposed to actual behaviour, falling under 2256 (2) (A)-(D) could qualify for an exemption under 75.7(a).
BUT, it strikes me that this raises its own problems. Taking 2256 (2)(C) as an example, how do you prove that a depiction is simulated masturbation rather than the real thing? Of course, that might be easier to determine in the cases of hardcore pics, but if you have a pic showing a lass with her hand in her panties, is she masturbating or simulating? Also, if you're a secondary producer, according to 75.7(b), you need to get certification from the primary producer that the content is, in fact, simulated. That could be almost as difficult as obtaining the proper records!
All of the above might, or might not, fly in court. But before you get to that stage you're going to have to endure investigation, legal fees and all the associated hassles. Given the option, I think I'd choose to have the appropriate records rather than risk everything on a judge's whim, not to mention the cost involved in even finding out what the wig-wearer feels on the matter.
As for the lasciviousness thing, I've wondered about that myself. I can see why (E) would have been skipped from the list of actual v simulated, in that it's pretty hard to simulate lasciviousness - it's either lascivious or it isn't! And, as you say, 2257 specifically applies to actual, rather than simulated, behaviour, as is reiterated in the rules. Further, I don't see why the sort of CP images that the rules are supposed to prevent couldn't just as easily be lascivious rather than hardcore. So an exception for actual lascivious stuff seems illogical, and potentially a huge loophole through which a lot of unpleasant material could fall.
Despite all that, 2257 is very clear on the definition of sexually explicit to be used, and I don't see that definition being changed in the rules (might have missed it!). It's also possible that there's some other statute or precedent that I'm unaware of that may close the loophole, but if not I'm inching towards the idea that merely lascivious material may - MAY - be exempt.
Of course, how you would go about declaring that exemption remains to be seen. The commentary is insistent that some sort of exemption statement is required where it would be applicable, and the only one set out in the rules makes no provision for something that isn't sexually explicit. Hmmm, if it can't be declared exempt, does that then mean that records must be kept afterall, even though lasciviousness appears to be excluded.... my brain hurts!!
Rob
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