CP Charges Tossed Over Photoshopped Images

Jun 8, 2011 4:45 PM PST

SAN JOSE, Calif. — A state appellate court ruled Wednesday that a man who photoshopped his 13-year-old daughter's head onto bodies of women in erotic poses shouldn't have been convicted of possessing child pornography because the pictures didn't show minors engaging in sex acts.

California's law on child porn "requires a real child to have actually engaged in or simulated the sexual act depicted," the 6th District Court of Appeal said.

Interpreting the law broadly to apply to computer-altered photos might violate the constitutional standard the U.S. Supreme Court established in 2002 when it struck down a federal law banning computer-generated "virtual child pornography" the appellate panel ruled, 3-0.

That 2002 decision, Ashcroft vs. Free Speech Coalition, struck down provisions of the Child Pornography Prevention Act of 1996, which "extend[ed] the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children."

Appellate judges also relied on the U.S. Supreme Court case New York vs. Ferber, which made clear that there were "limits on the category of child pornography which, like obscenity, is unprotected by the 1st Amendment."

New York vs. Ferber, the appellate judges said, stated that "the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains 1st Amendment protection."

"We conclude, however, that the articulated rationales underlying both the New York vs. Ferber and Ashcroft vs. Free Speech Coalition decisions compel the conclusion that such altered materials are closer to virtual child pornography than to real child pornography since the use of photo-editing software to replace an adult's head with a child's head on pornographic images of the adult does not necessarily involve sexual exploitation of an actual child," the appellate court wrote.

"Although we may find such altered images morally repugnant, we conclude that mere possession of them remains protected by the 1st Amendment to the U.S. Constitution."

Defendant Joseph Gerber was convicted under a law prohibiting possession of any photo that depicts someone under 18 "personally engaging in or simulating sexual conduct."

Prosecutors argued that the photoshopped photos depicted his daughter engaging in sex acts. But the court said the law's use of "personally" requires proof that a minor actually took part in those acts.

The appellate court ordered a lower court to resentence Gerber, who was convicted of furnishing drugs to his daughter besides the child porn charges.

ASACP's interim director Tim Henning told XBIZ that the Child Pornography Prevention Act prohibits electronically morphing the head of a real child onto the body of an adult engaged in sexual activity.

“Although the child has not actually been sexually abused the child is still harmed by the distribution of such images. In this case the state appellate court chose not to follow the CPPA, which is disappointing but not altogether uncommon,” Henning said.

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