dissenting.
The majority concludes that defendant’s conduct in getting M. to be nude with other family members and to dance with defendant while nude could support a conviction for using M. in a display of sexually explicit conduct. The majority is wrong. The statute that proscribes the use of children in a sexually explicit display is focused on the objective nature of the children’s conduct, not on the subjective intent of the person who induces the children to engage in the conduct. Consequently, it does not matter whether defendant sought sexual stimulation or gratification from M.’s nudity. What matters, instead, is whether the manner in which defendant’s and M.’s genitals were exhibited would be perceived as lewd from the perspective of the average person viewing the exhibition. The exhibition of defendant’s and M.’s genitals does not meet the latter standard, so the majority errs in affirming the trial court’s denial of defendant’s motion for a judgment of acquittal on the charge that he used M. in a display of sexually explicit conduct.
ORS 163.665(3) defines “sexually explicit conduct” for purposes of a number of crimes involving the use of children in such conduct, including the crime for which defendant was convicted: using a child in a display of sexually explicit conduct. See ORS 163.665 to ORS 163.695. It provides that sexually explicit conduct
“means actual or simulated:
“(a) Sexual intercourse or deviant sexual intercourse;
“(b) Genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals;
*448“(c) Penetration of the vagina or rectum by any object other than as part of a medical diagnosis or treatment or as part of a personal hygiene practice;
“(d) Masturbation;
“(e) Sadistic or masochistic abuse; or
“(f) Lewd exhibition of sexual or other intimate parts.”
ORS 163.665(3). That definition describes physical acts. The statutes that rely on that definition prohibit people (1) from having children participate or engage in those acts for people to observe or visually record, (2) from paying or giving anything of value to observe children engaged in those acts, and (3) from handling in various ways visual records of children engaged in those acts. See ORS 163.665 to ORS 163.689.
The description of the physical acts in ORS 163.665(3) focuses on the nature of the acts themselves, not on the mental state of the people who, for example, encourage children to participate in those acts. The majority misunderstands that point. It believes that whether an exhibition of genitals is lewd under ORS 163.665(3)(f) can turn on whether the person who induces the exhibition intends for it to produce sexual thoughts or stimulation among the people who view it. The statute does not work that way.1
That it does not can readily be demonstrated. Assume that a person is sexually stimulated by watching nude prepubescent children play volleyball. The person goes to a nudist camp or retreat and induces a group of nude children to play volleyball for the person to watch and photograph. In the majority’s view of the statute, the person who engaged in that conduct could be found guilty of using children in a display of sexually explicit conduct because, in light *449of the sexual purpose served by the exhibition, the exhibition constituted a lewd exhibition of the children’s genitals.
The proper focus under the statute is on whether the manner in which the children’s genitals were displayed would be considered lewd from the perspective of the average person viewing the exhibition. The average person would not consider a volleyball game by nude prepubescent children at a nudist camp to constitute a lewd exhibition of the children’s genitals, so the person who induced the children to engage in that conduct could not be found guilty of using the children in a display of sexually explicit conduct.
Any doubt about that issue is dispelled by the legislative history behind the statutes. The 1987 Legislature substantially revised ORS 163.665 through ORS 163.695. Before the 1987 revision, the definition of sexually explicit conduct in ORS 163.665 included “D]ewd exhibition of the genitals.” ORS 163.665(6) (1985). The original draft of the bill that made the 1987 revisions, Senate Bill 364, proposed to replace that definition with three alternative definitions that included the phrase “for the purpose of sexual stimulation of the viewer.” For example, one of the alternatives defined sexually explicit conduct to mean
“[e]xhibition of the genital or unclothed pubic or rectal areas for the purpose of sexual stimulation of the viewer.” SB 364, § 1 (1987).
Witnesses and .committee staff raised questions about the constitutionality of the proposed changes to the definition of sexually explicit conduct. See, e.g., Staff Summary, Senate Committee on Judiciary, SB 364, April 20, 1987, Ex X; Minutes, Senate Committee on Judiciary, May 13,1987, p 7. In light of those questions, the legislature ultimately decided to amend the bill to keep the reference to “H]ewd exhibition of the genitals” in the definition but to add the phrase “or anus” to it. See Or Laws 1987, ch 864, § l.2
In light of that history, it is apparent that the legislature chose not to define the exhibition of genitals in ORS *450163.665 in terms of the purpose of the exhibition. Rather, it chose to continue to define it in terms of the manner in which the exhibition would be viewed by the average person who observed it.
Here, a jury could find that defendant had a sexual purpose behind his effort to get M. to join other family members in being nude within the family home and to dance with M. while she and defendant were nude. However, there is no evidence from which a jury could find that defendant’s or M.’s genitals were exhibited to anyone in a lewd manner. In fact, M. testified that defendant directed her the next day to remove her pants and to spread her legs so that defendant could see her genitals because defendant had not been able to see them the night before.
On the record in this case, a jury could not find defendant guilty of using M. in a display of sexually explicit conduct by inducing her to become nude and to dance with defendant while nude. Consequently, I respectfully dissent from the majoritys decision to affirm the trial court order that denied defendant’s motion for a judgment of acquittal on the charge of using M. in a display of sexually explicit conduct.
The majority claims that State v. Meyer, 120 Or App 319, 852 P2d 879 (1993), supports its interpretation of the statute. Meyer involved whether the phrase “lewd exhibition of genitals” in ORS 163.665(6) (1989) was unconstitutionally vague. We relied on case law and dictionary definitions of the term “lewd” to conclude that the phrase was not vague, and we interpreted a lewd exhibition to be one that would produce lust or sexual desire in the viewer. Id. at 324-26. Meyer did not present the issue that this case presents, which is whether lewdness is to be assessed from the perspective of the person inducing the exhibition or from the perspective of the average person viewing it. The statute prohibits exhibitions that are lewd from the latter perspective, not from the former.
The legislature adopted the current version of the definition in 1995. Or Laws 1995, ch 768, § 4. The 1995 revision did not change the definition in a way that bears on the issue in this case.