Court: Dad OK to put daughter's face on porn pix

[alp227]

Source: San Francisco Chronicle

(06-08) 15:38 PDT MILPITAS -- A Milpitas man who used a computer to paste photos of his 13-year-old daughter's head onto bodies of women in graphic poses shouldn't have been convicted of possessing child pornography because the pictures didn't show minors engaging in sex acts, a state appeals court ruled Wednesday.

California's child porn ban, punishable by up to three years in prison, "requires a real child to have actually engaged in or simulated the sexual act depicted," said the Sixth District Court of Appeal in San Jose.

The court said the law was intended to prevent exploitation of children. Interpreting it broadly to apply to computer-altered photos might violate the constitutional standard the U.S. Supreme Court established in 2002 when it struck down a federal law banning "virtual child pornography," sexually explicit images that were entirely computer-generated, the appellate panel said.

"Although we may find such altered images morally repugnant, we conclude that mere possession of them remains protected by the First Amendment," Justice Franklin Elia said in the 3-0 ruling.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/06/08/BA251JRESO.DTL

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Unfortunately, the article reports further that the man, Joseph Gerber, had been separated from his wife for 12 years and had given his estranged daughter drugs but had those convictions overturned because prosecutors misinformed the jury regarding laws.

[maddezmom]

1. wth

:eyes:

[snagglepuss]

2. This is outrageous. Doesn't the daughter have a right over her image?

Isn't this an invasion of her privacy?

[Bunny]

7. Exactly. How the fuck is it legal for him to do this?

[jberryhill]

22. Because of this weird legal loophole we have, in which...

In order to be found guilty of a crime you have to do each one of the elements listed in these things called laws.

So, apparently, in order to be convicted of possession of child pornography, these nitwit judges think you have to be in possession of pornography which involved the exploitation of a child to make pornography.

Here how these knuckleheaded courts do this stuff. California Penal Code § 311.2-311.4 and 311.11, according to the definition in §311.3(b): makes it a felony to distribute or exhibit matter depicting a person under the age of 18 years personally engaging in or personally simulating sexual conduct, including (1) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals. (2) Penetration of the vagina or rectum by any object. (3) Masturbation for the purpose of sexual stimulation of the viewer. (4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer. (5) Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer. (6) Defecation or urination for the purpose of sexual stimulation of the viewer.

So they have this law that makes it a felony to have stuff that makes it a felony to distribute or exhibit matter depicting a person under the age of 18 years personally engaging in these various acts, and then they have the GALL to overturn the conviction of someone who didn't have matter depicting a person under the age of 18 years personally engaging in those acts.

It's a puzzler.

[Name removed]

29. Deleted message

Message removed by moderator. Click here to review the message board rules.

[jberryhill]

31. Invasion of privacy is a civil action

This is a criminal case.

Aside from which, it's not clear in what manner her privacy was invaded.

If I take a picture of you walking down a public street, and then go home and engage in some kind of fetishistic activity with your picture, I have not invaded your privacy.

[Taverner]

40. +100

Yeah, the dad is a sick puppy

But did he do anything illegal? No

[cstanleytech]

10. If the father was trying to sell her image she might have some rights but he wasnt.

As for privacy are there any laws at all that state we have that right from everyone including parents especially if its a minor seeking the privacy? If not then the whole privacy thing goes flying out the window.

[Canuckistanian]

11. That's a good point

Some people are saying that parents shouldn't have the rights to post vids of their kids crying or acting badly. They say it might impact their kid's lives at a later point.

This goes WAY beyond that.

[cstanleytech]

16. "This goes WAY beyond that."

So is that based on purely personal opinion based upon how creepy it seems for him to have done this or on is that opinion based on an actual law thats on the books? If the latter rather than the former then if such a law would be passed how exactly do you get it passed in such a way that would withstand a challenge before the SCOTUS?

[Canuckistanian]

32. I'm talking grounds for a civil suit when the kid grows up

I'm making that point that parents have no business manipulating images of their own children and could be held liable for damages in the future

[snagglepuss]

17. You're right this goes way beyond embarassing child. How is this not emotional abuse.

[Canuckistanian]

33. It is.

And that guy had better prepare for a lawsuit when she reaches the age of majority.

[wickerwoman]

27. You don't have a right to your own image.

It would make the internets very, very sad if you did.

This guy is a scumbag, but there has to be another way to legislate against this kind of thing without allowing individuals to copyright themselves.

[MineralMan]

3. Well, that man should never be allowed to be alone with his

daughter. That's all I can say about that without writing obscenities or worse.

[bitchkitty]

4. He shouldn't be allowed to be with her at all,

alone or otherwise.

[jberryhill]

23. That is correct. It is also not what this case was about

This case was about whether he should go to jail for possession of child pornography under the relevant statute.

It is unlikely that he has any contact with his daughter, but that is within the jurisdiction of the relevant agency and has nothing to do with this particular case.

You will note the article's reference to "estranged daughter", suggesting that he does not have contact with her, and hasn't for some time.

[LanternWaste]

37. I imagine many tangents predicated upon...

I imagine many tangents predicated upon not "what this case was about" will be discussed, and I see that as no bad thing.

[sulphurdunn]

5. The decision was just

under the law, but social services should see to it that "dad" doesn't get within a country mile of this kid ever again.

[cstanleytech]

9. I think that might be a decision for the girl to make not one for you

or "social services".

[Chan790]

20. I think...

she's free to say she never wants to see him again, but barring that, the state Dept. of Social Services has every obligation to make sure he never sees her again...it falls under the guideline of protecting the welfare of a minor.

[jberryhill]

26. That's already been done - Note "estranged daughter" in the article

It is clear that she hasn't had contact with him for some time, and for good reason.

It is apparent that folks here do not understand that this appellate decision was directed to a criminal conviction under a particular statute, and has NOTHING to do with whatever may have already occurred in family court and/or under the auspices of the relevant state social service agency.

But careful reading of the actual words in the OP make it clear he does not have contact with her in the first place.

[Chan790]

30. I actually had noticed that.

But as you know, those things can change.

My youngest brother; the one that my father used to lock in a back closet for 12 hours a day, every day, for 3 years from age 2 to 5 (having a small child around apparently interferes with being a 24-cans-of-beer-a-day drunken racist multiply-convicted violent felon.) and the major reason the family division of CT superior court said Dad could have no custodial rights ever; wanted to go live with the old crazy when he thought at age 15 he'd get a car out of it for his 16th birthday.

I was rebutting the poster above me who was saying that it was up to the girl not social services to make that decision (which I took to mean social services shouldn't be getting involved which is offensive to me (and probably anybody ever saved from an abusive childhood by a social services department doing its' job.) and necessitated rebuttal. This is precisely the situation where social services should be laying down edicts now for the future regardless of the status-quo. The status-quo can change but their responsibility from the state to protect the welfare of minors does not.

Even if the girl wanted to see her father (and I can see no reason why she would), child protective services can and should be saying "No fucking way." They should be saying it now so that it cannot become an issue later.

[hay rick]

6. Sick, sick, sick- but not criminal.

And he should be under a restraining order to prevent contact with his daughter.

[snagglepuss]

19. If it's not criminal now, it ought to become a crime. What iF that creep decides

to show his daughter these images?

[jberryhill]

21. That would be a crime

Showing pornographic images to a minor is, in most states, a criminal offense.

[snagglepuss]

42. Do not people who are not public figures have an expectation of privacy.

Has this not violated the child's privacy?

[blackspade]

8. What a scumbag.

[Cerridwen]

12. Can someone help me find the name of the guy's lawyer, please?

Thank you if you can.

Off to search in the meantime.

[jberryhill]

24. Why?

In all likelihood he was assigned one by the state.

Don't tell me, let me guess, you want to go after some lawyer who was required by the state to defend this guy, and to present the argument on appeal that this guy did not violate the statute under which he was convicted.

Because, clearly, it is the fault of the lawyer assigned to him that a panel of appeals court judges determined that the particular statute in question was not violated.

And this will accomplish what, exactly?

[Cerridwen]

41. Uh, no. Your crystal ball is broken.

I'm curious to check a theory. Nothing more.

Have your ball fixed.

[bemildred]

13. "Not guilty" is not the same thing as "OK".

Different standard of judgement.

[yodermon]

14. "virtual child pornography" could soon be more realistic-looking than the real thing (CGI).

I thought it was still considered illegal.

[boppers]

28. It's... complex.

In the US, possessing virtual/drawn/rendered child porn (no human children involved) is legal, if not realistic enough to be indistinguishable from the real thing. Selling or promoting it, as *actual* child porn, however, is not legal. If it *is* photo-realistic, and not being exchanged, it has to pass the Miller test to determine legality.

http://www.outsidethebeltway.com/supreme_court_upholds_virtual_child_porn_law/
http://en.wikipedia.org/wiki/Virtual_child_pornography
http://en.wikipedia.org/wiki/Miller_test

This case seems to be even weirder than that, though, because the guy wasn't making images of children being sexual, he was making images of adults... with children's faces... being sexual.

Weird ass fetish (and coming from me and the things I've seen, that's saying a lot).

[Xithras]

15. Gross, but the court was right.

The purpose of the law is to protect children from sexual abuse. If he didn't distribute the images, and he didn't actually abuse her, then she was no more harmed by the images than she was by the fact that he fantasized about her in the first place. It's a sick fantasy, but it's not illegal.

[snagglepuss]

18. So if you have a child, you would be ok with nieghborhood pervs

using an 'image' of your child in this manner?

[jberryhill]

25. I would probably beat the shit out of said neighbor

And you are okay with putting people in jail when they have not violated the criminal statute under which they were convicted, yes?

[Xithras]

36. OK? Of course not.

But there's a lot of legal and moral ground between 'OK' and 'Illegal'

I have a teen daughter who likes to sunbathe in her bikini, and have waist high fences. I wouldn't be OK with my neighbors fapping their manhoods as they watched her through a window either. In fact, I'd be furious. But would it be illegal? Only if they did it where she could see them.

You can't jail people for having fantasies and sexual preferences. Even sick ones.

[snagglepuss]

39. That is not the situation. The situation is a father who photoshopped his

daughter's face into a porn film. The question I asked you is whether you'd be ok with the nieghbor photoshopping your daughter's face into porn.

[Courtesy Flush]

34. Yet Evan Emory went to jail. Crazy.

http://www.mlive.com/news/muskegon/index.ssf/2011/04/ready_to_edit_evan_sentenced_t.html

[Javaman]

35. That is some serious sick shit. nt

[WatsonT]

38. No it shouldn't be illegal, but

this guy shouldn't be free to show his face anywhere in the country without facing constant harassment.