Sixth Circuit Upholds Jury Award Against Expert Who Created False Child Pornography – Doe v. Boland
I was very interested to see a case involving “virtual child pornography” surface in the courts recently. The issue interests me because the Supreme Court has ruled that such pornography—created without harming a child—is legally protected free speech, but Congress later passed a law making it illegal, and the court has upheld that law. In recent years, courts in different jurisdictions have come to different conclusions on whether it’s a crime to create images by superimposing children’s heads onto the bodies in adult pornography. A Florida school principal was convicted of child pornography possession for doing this with the images of kids at his school, but ultimately released on appeal. A California appeals court agreed, but the Second U.S. Circuit Court of Appeals upheld a conviction in yet another case. In Doe v. Boland, the Sixth Circuit ruled that the maker of such images can be penalized in a civil lawsuit.
Dean Boland is an attorney in Ohio who was hired as an expert to testify in a child pornography case. In attempting to show the jury that it’s possible to view child pornography without realizing it’s child pornography, he downloaded stock photos of two girls and “photoshopped” them to become pornographic. Unfortunately for Boland, his testimony came to the attention of the FBI, which searched his home and office for more pornography. Boland ultimately admitted to having violated federal law in a pre-trial diversion agreement, and published an apology in the Cleveland Bar Journal.
However, the parents of the two girls in the stock photos got wind of the situation and sued Boland under a federal law providing at least $150,000 in damages to children who suffered personal injuries from sex crimes. The district court granted summary judgment to Boland because the statutes exempt expert witnesses, but the Sixth Circuit reversed, finding no such exemption. On remand, the district court granted summary judgment to the families and awarded $300,000. Boland appealed, arguing that the girls’ situation was not addressed by the law they used; that the law criminalizing “virtual child pornography” violated the First Amendment; and that the law violates his Sixth Amendment right to counsel.
On the first issue, Boland admitted to creating the virtual pornography in violation of federal law, which uncontroversially made the girls victims. The Sixth Circuit ruled that they did indeed suffer a personal injury as a result. It found that morphed images like his are less harmful than, but do cause the same kind of harm as, conventional pornography. Indeed, the court said, Boland’s original goal was to show that real and morphed pornography are hard to distinguish, which argues that they are similarly harmful. Furthermore, the court argued, being a “victim” is indistinguishable from having suffered a “personal injury.” Nor were the girls required to show “actual damages,” the court said, because 2255 says any victim “shall be deemed to have sustained damages” of at least $150,000. The Sixth went on to reject his First Amendment argument, saying morphed images involve real children and have limited expressive value. Finally, the court rejected Boland’s right-to-counsel argument because he had already been ruled against elsewhere.
I hope to see Boland’s case appealed further, because I believe there are issues in it that merit a serious discussion. In particular, I am not sure I agree with the Sixth Circuit that victims suing under 2255 should not be required to prove damages. This ruling would drastically change tort law if it were applied to most civil cases; it should not be considered less controversial because it comes in a criminal defense law matter. I also suspect that courts might reconsider whether being a “victim” and having suffered damages are indistinguishable. Indeed, this case seems to present a situation in which a child can technically be victim of a child pornography crime without having suffered any damages. It would be interesting to see whether this highly emotional issue gets another airing before a full en banc panel of the Sixth Circuit.
Seltzer Law, P.A., focuses its practice on defending people accused of serious crimes involving technology and the Internet. Lead attorney David Seltzer is an experienced former cyber crime prosecutor for the Miami-Dade State’s Attorney’s office and has substantial experience negotiating the intersections between law and technology. If you’re facing charges and you’d like to talk to us about your rights and your case, send us an email or call 1-888-THE-DEFENSE (1-888-843-3333).
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