Florida Appeals Court Considers Whether Photoshopped Images Are Child Pornography

November 8, 2010 by David S. Seltzer

More than a year ago, I wrote on this blog about the conviction of John Stelmack, a school principal in Bartow, on child pornography charges. The case caught my eye as an Orlando child pornography criminal defense lawyer because it presented an unusual question: Can images be called child pornography if they are images of adult women with children’s heads pasted on top? Not surprisingly, lawmakers hadn’t considered this possibility when writing child pornography laws, and the Stelmack case was the first I had heard of in Florida presenting the question. To make matters worse, Stelmack had used pictures of two children he knew personally at elementary schools where he had worked, and was already under investigation for inappropriate hugging.

At the time of his June 2009 trial, Stelmack argued that his images were not really child pornography. He was convicted, but he appealed to Florida’s Second District Court of Appeal, making the same argument. That court heard his case in mid-October, as the Ledger of Lakeland reported. Before the court, Stelmack’s criminal defense attorney argued that the images did not fit Florida’s definition of child pornography -- “any image depicting a minor engaged in sexual conduct” -- because the images did not depict children’s bodies. The state’s attorney on the case disagreed, saying Stelmack’s purpose in creating the images was to objectify real children by showing them in a form of sexual behavior. Stelmack is currently serving five years in prison with ten years of probation, and courts have not granted his requests to be released while his appeal is heard. The appeals court didn’t say when it would rule.

Last year, I wrote that in my judgment as a Miami-Dade child pornography criminal defense attorney, Stelmack’s images don’t meet the definition of child pornography. This is a difficult case, because the images sound very disturbing. The parents of the children whose heads are in the pictures (who are not identified) undoubtedly feel strongly about this, along with other parents at his former school. It’s easy to see why a jury would vote to convict in this situation. However, his actions as reported do not appear to clearly meet Florida’s legal definition of child pornography -- and the law is what controls things in appeals courts. In fact, this issue has already arisen in federal law, which most recently led to a law specifically outlawing obscene depictions of minors appearing to engage in sexual conduct. This law left open the possibility of non-obscene images, which could include, for example, Renaissance art or scenes from movies.

However, this is a federal law, and Stelmack is being tried in Florida state court. Florida law does not explicitly forbid artistic or altered depictions of children involved in sexual conduct. However, it does include simulated intercourse in its definition of “sexual conduct,” and child pornography again is “any image depicting a minor engaged in sexual conduct.” The question is, is nudity by itself sexual conduct, and is pasting a head onto a clearly different body enough to depict sexual conduct? As a West Palm Beach child pornography criminal defense lawyer, I hope the appellate justices are giving those questions serious thought. This case may be unsavory, but as our justice system recognizes, people involved in unsavory cases have the same rights as every other defendant. In Stelmack’s case, that means fair consideration of whether his actions actually broke the law he’s accused of breaking.

If you’re accused of manufacturing, transmitting or possessing child pornography, don’t wait to call Seltzer Law, P.A. for help. Child pornography crimes carry long sentences and lifelong sex offender registration, and as this case implies, you can be convicted even when the facts imply some doubt. We offer free, confidential consultations, and we take calls 24 hours a day and seven days a week, because arrests don’t just happen during the work week. To learn more or set up a meeting, contact us through our website or call 1-888-THE-DEFENSE (1-888-843-3333).