Miami Cyber Crime Defense Attorney on Conviction of Tampa Man for Artificial Child Pornography

June 15, 2009 by David S. Seltzer

A former school principal in Bartow (Polk County) was convicted June 12 of possession of child pornography, the Tampa Bay Tribune reported June 13. John Stelmack was charged after a search of his office turned up pornographic pictures of an adult woman with the faces of two girls, 11 and 12, pasted over the woman’s face. Stelmack is being held in Polk County jail until his sentencing July 10, when he faces up to 25 years in prison.

Stelmack’s problems started in 2007, when he was accused of hugging some fifth-grade girls inappropriately. He was suspended for an internal investigation and asked not to contact anyone at the school. A few days later, he called to ask an administrator to check on something in his office. Investigators searched the office and turned up a briefcase in a locked closet with the doctored pictures. The Tribune reported that both children were from Florida; the Ledger of Lakeland, Florida reported that one child was at the school where Stelmack worked, and another was from a New York school where he had been principal before. He lost his job and was prosecuted for possession of child pornography.

Let me start by saying that the facts of this case are disturbing, and the jury’s decision may have been an understandable reaction to seeing upsetting images. However, as a South Florida child pornography criminal defense attorney, I do not believe that the facts reported would make Stelmack guilty of a Florida child pornography crime. Under state law, “child pornography” is clearly defined as “any image depicting a minor engaged in sexual conduct.” If these articles are correct, the images at issue do not depict a minor engaged in sexual conduct; they (reportedly) depict an adult engaged in sexual conduct, with children’s faces cut and pasted into the photo.

In fact, the U.S. Supreme Court has already ruled on this very issue, in 2002’s Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In that case, the court said that parts of the federal Child Pornography Prevention Act were unconstitutionally broad because they outlawed sexually explicit material showing someone that “appears to be a minor,” and material that “conveys the impression” of minors involved in sexual activity. As the court pointed out, these are broad enough to cover works with actual literary or social value, such as Shakespeare’s Romeo and Juliet, as well as constitutionally protected pornography featuring over-18 actors touted as “barely legal.”

Furthermore, the court’s original rationale for outlawing child pornography doesn’t apply to images like Stelmack’s. New York v. Ferber, 458 U.S. 747 (1982), excluded child pornography from the First Amendment protection enjoyed by legal pornography, because child pornography is always manufactured by illegal use of children in a sexual performance. Under that rationale, the material found in Stelmack’s briefcase should not be illegal -- no children were used or harmed when it was made. As a Miami-Dade child pornography criminal defense lawyer, I believe convicting Stelmack violated both the letter and the spirit of the law.

It’s also worth noting that Stelmack faces life-altering penalties for this conviction. He has already lost his job and probably his career in education, not to mention marital and social consequences. To these, the court has added a Florida felony conviction, which means prison time for most of the rest of his life; loss of many basic civil rights when he gets out; and trouble finding a new job. Even worse, he faces lifelong status as a sex offender, meaning restrictions on where he can live, onerous registration and re-registration requirements and a poisonous stigma. Those are more reasons why, as a Fort Lauderdale child pornography criminal defense lawyer, I believe he should not have been convicted, and I wish him well in any appeal.