California Court Overturns Conviction for Imposing Daughter’s Head Onto Pornography

June 13, 2011 by David S. Seltzer

I’ve written here about several child pornography cases involving defendants who used Photoshop or other software to impose children’s heads onto the bodies in adult pornography. In particular, as a child pornography criminal defense attorney in Miami, I have followed the case of John Stelmack, a former elementary school principal from Bartow, who was convicted on child pornography charges stemming from imposing students’ heads onto naked adult bodies. Last December, Stelmack was freed by a Florida appeals court, which said the pictures did not meet Florida law’s definition of child pornography. In New York, a federal appeals court came to the opposite conclusion this year. Now, as the San Francisco Chronicle reported June 9, a California man has been freed on appeal after a conviction on similar charges.

Joseph Gerber of Milpitas, near San Jose, started to get to know his estranged 13-year-old daughter in 2008. Over the first few visits, he began offering her marijuana and cocaine. While the girl was high, Gerber allegedly asked her to pose for photos. She agreed, but when he asked her to take off her clothes, she reportedly burst into tears. After she told her mother what happened, her mother called the police, who searched Gerber’s home. There were no underwear photos, but investigators did find seven pictures in which the girl’s head had been superimposed on pornographic photos of adult women.

Gerber was tried and convicted of possession of child pornography as well as drug charges. However, the California law used to convict him specifically said it was illegal to possess pornography showing minors “personally engaging in or simulating sexual contact.” Because of that phrasing, the Sixth District Court of Appeal overturned Gerber’s conviction for possession of child pornography, saying interpreting the law more broadly would violate a 2002 Supreme Court ruling striking down laws against “virtual” child pornography that never involved actual children. The California court wrote that Gerber’s pictures were protected by the First Amendment, even though viewers might find them repugnant.

As a cyber crime criminal defense lawyer, I have to agree. It’s difficult to defend a man who allegedly came close to sexually exploiting his daughter, but the law is the law. Florida’s Second District Court of Appeal came to the same conclusion last year. Neither state has a law banning “composite” or otherwise computer-generated images, although the federal government does — passed explicitly to get around the 2002 Supreme Court decision. In my opinion as a cyber crime criminal defense attorney, legislatures should consider the purpose of laws against child pornography possession, which is to discourage people from exploiting children to make it in the first place. When the pornography is Photoshopped or otherwise digitally created, it might still be shocking and sad, but it doesn’t meet the standard to override the First Amendment.

If you’re accused of possessing any kind of child pornography, don’t hesitate to call Seltzer Law, P.A. for help. Our lead attorney, David Seltzer, is an experienced former cyber crime prosecutor who understands technology and the law. To set up a free, confidential consultation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.