Court Upholds Child Porn Conviction for Pasting Minors’ Faces Onto Adult Bodies

March 7, 2011 by David S. Seltzer

A recent federal appeals court ruling caught my eye as a child porn defense lawyer because it came to a conclusion opposite from that of Florida courts. The New York Law Journal reported March 2 that the Second U.S. Circuit Court of Appeals in New York ruled that superimposing the faces of minors onto the bodies of adults in pornography can be penalized as child pornography. The decision means 50-year-old John Hotaling of Sharon Springs, N.Y. will continue to serve a 6.5-year jail sentence on one count of possessing child pornography. The ruling comes down on the opposite side of a Florida state court decision in the case of former Lakeland school principal John Stelmack, who was freed in December after the Second District Court of Appeal ruled similar images are not child pornography.

Hotaling used a computer to create six photos in which the faces of teenage girls were pasted onto the bodies of women in adult pornography. The teens’ photos came from people he knew, including pictures his daughter and her friends had taken and one picture taken from a computer he was fixing for family friends. The court ruling said the photos were “encoded in [HTML]” and stored in “indexed folders that could be used to create a website,” although it’s not clear what that means. The court noted that there was no evidence that Hotaling uploaded or distributed the photos, and he argued that he created them only for himself and did not harm any of the minors. However, the Second Circuit said the pictures fit within the bounds of previous rulings excepting child pornography from the First Amendment because of the harm to children created from producing it. The court also expressed concern that the pictures were “primed for entry into the distribution chain.”

Thanks to our dual state-federal legal system, it’s not at all contradictory that this court came to a different conclusion from the appeals court here in Florida. Child pornography is illegal in both jurisdictions, but Florida does not specifically forbid making “virtual” child pornography with a computer program, the way Hotaling did. Federal law does — but interestingly, that’s been the case only since 2003, when Congress modified child pornography laws to explicitly include pornographic images that appear to be minors. It did that because the U.S. Supreme Court ruled in a 2002 case, Ashcroft v. Free Speech Coalition, that a previous law on the same topic unconstitutionally restricted “speech that records no crime and creates no victims by its production.” This is still the precedent

Since then, the high court has declined to revisit the issue — but Hotaling’s attorney has indicated that they may try again. In my opinion as a child pornography lawyer, Hotaling may be able to make a strong case, and not just because he because the harm to the victims was questionable in his case. As the article notes, he was convicted in part based on the court’s belief that he might have been planning to distribute the images — not because he actually did.

If you or someone you love is accused of a child pornography crime, don’t wait to contact the experienced child pornography defense attorneys at Seltzer Law, P.A. Lead attorney David Seltzer is a former cyber crime prosecutor with the Miami-Dade State’s Attorney’s office. For a free, confidential consultation, you can reach us anytime — 24 hours a day and seven days a week — at 1-888-THE-DEFENSE (1-888-843-3333) or through our website.