Woman Faces Child Pornography Charges for Digitally Placing Teen in Bestiality Picture

July 6, 2010 by David S. Seltzer

I’ve written here before about the phenomenon of “virtual” child pornography, in which children’s pictures are digitally placed into pornographic or obscene pictures. As a Miami-Dade child pornography criminal defense attorney, I am interested in this because it’s not quite technically child pornography -- no children are directly exploited to make it, which has led to court rulings that it is protected free speech. This issue was raised again last month in Utah, where a woman is facing 18 counts of sexual exploitation of a minor for digitally adding the head of a 13-year-old girl to the body of a woman in a picture depicting bestiality. Danette Stark, 37, is accused of making 30 flyers with the picture and words the Deseret News described as derogatory and profane, and distributing them at the middle school the girl attends. Officials declined to talk about a motive, but noted that Stark has a daughter at the school as well.

According to the Salt Lake Tribune, Stark was caught on a surveillance camera May 24 placing some of the flyers in the girls’ bathroom at the school. She admitted to putting others in some lockers, and said she made 30 altogether. Only 18 have been recovered, and officials have requested that anyone who has a remaining flyer turn it in. Stark told the police that she did this as revenge for a “perceived wrong” by the girl, who is not being named. Prosecutors and defense attorneys have declined to explain this, citing embarrassment and privacy concerns, but one defense attorney said the relationship between the victim and Stark’s daughter “possibly” played a role. Comments reported in the Deseret News suggest the girls may have had a falling out or a fight. Stark faces up to 15 years in prison for each of the 18 felony charges, for a total of up to 270 years in prison. Her attorneys have said they plan to argue that her flyers are not child pornography.

As the Deseret News noted, virtual or manufactured child pornography like the flyers is a subject of legal debate. In 2002, the U.S. Supreme Court ruled in Ashcroft v. Free Speech Coalition that laws against virtual child pornography violate the First Amendment, restraining free speech without protecting children from exploitation. In response, the federal government and many states passed laws that explicitly include manipulated images, drawings and other depictions that are not straightforward photographs, as long as these are “obscene” and lack artistic value. Since then, at least one defendant accused of manipulating photographs to make virtual child pornography has been acquitted, while at least two defendants accused of possessing drawings of child pornography have been convicted. The Supreme Court has declined to revisit the issue, leaving states and federal appeals courts to decide on their own whether virtual child pornography should be penalized as child pornography.

As a Fort Lauderdale child pornography criminal defense lawyer, I don’t believe the flyer described in this case should be considered child pornography. The Supreme Court banned child pornography in 1982 for the very good reason that making child pornography inevitably requires exploiting an actual child. Other types of pornography remained legally protected free speech. Because virtual child pornography does not require the sexual exploitation of a child, I do not believe it should be exempted from the First Amendment -- no matter how much we dislike it.

This is all a separate issue from the question of whether Stark should be penalized, or whether our society should tolerate her behavior. Most observers agree that it’s inappropriate for an adult to be involved in teenagers’ fights at all, and extremely inappropriate to launch a sexually themed attack. If it’s proven that Stark did it, some penalty for bullying or obscenity may be appropriate. But as a West Palm Beach child pornography criminal defense attorney, I do not believe Stark is guilty of sexually exploiting a minor, which is the charge she faces. This is not an academic distinction; she faces more than two lifetimes in prison if convicted on all counts. With this much at stake, I believe prosecutors and jurors should carefully consider whether it’s fair or wise to apply laws meant for the worst kind of child molester to this case.