Home > News > CP Charges Tossed Over Photoshopped Images • Bookmark   • Newsletters   • Register Search Options


CP Charges Tossed Over Photoshopped Images

CP Charges Tossed Over Photoshopped Images
Get XBIZ News
Jun 8, 2011 4:45 PM PDT    Text size: 

SAN JOSE, Calif. — A state appellate court ruled Wednesday that a man who photoshopped his 13-year-old daughter's head onto bodies of women in erotic poses shouldn't have been convicted of possessing child pornography because the pictures didn't show minors engaging in sex acts.

California's law on child porn "requires a real child to have actually engaged in or simulated the sexual act depicted," the 6th District Court of Appeal said.

Interpreting the law 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 computer-generated "virtual child pornography" the appellate panel ruled, 3-0.

That 2002 decision, Ashcroft vs. Free Speech Coalition, struck down provisions of the Child Pornography Prevention Act of 1996, which "extend[ed] the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children."

Appellate judges also relied on the U.S. Supreme Court case New York vs. Ferber, which made clear that there were "limits on the category of child pornography which, like obscenity, is unprotected by the 1st Amendment."

New York vs. Ferber, the appellate judges said, stated that "the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains 1st Amendment protection."

"We conclude, however, that the articulated rationales underlying both the New York vs. Ferber and Ashcroft vs. Free Speech Coalition decisions compel the conclusion that such altered materials are closer to virtual child pornography than to real child pornography since the use of photo-editing software to replace an adult's head with a child's head on pornographic images of the adult does not necessarily involve sexual exploitation of an actual child," the appellate court wrote.

"Although we may find such altered images morally repugnant, we conclude that mere possession of them remains protected by the 1st Amendment to the U.S. Constitution."

Defendant Joseph Gerber was convicted under a law prohibiting possession of any photo that depicts someone under 18 "personally engaging in or simulating sexual conduct."

Prosecutors argued that the photoshopped photos depicted his daughter engaging in sex acts. But the court said the law's use of "personally" requires proof that a minor actually took part in those acts.

The appellate court ordered a lower court to resentence Gerber, who was convicted of furnishing drugs to his daughter besides the child porn charges.

ASACP's interim director Tim Henning told XBIZ that the Child Pornography Prevention Act prohibits electronically morphing the head of a real child onto the body of an adult engaged in sexual activity.

“Although the child has not actually been sexually abused the child is still harmed by the distribution of such images. In this case the state appellate court chose not to follow the CPPA, which is disappointing but not altogether uncommon,” Henning said.

More ways to get XBIZ News:  RSS Feeds  |  E-Newsletters  |  Desktop Widget  |  Mobile
Looking for porn star news and behind-the-scene videos? Check out XFANZ.com !


Understanding 'Camming Sociology' Can Enhance Interactions

After working for six years in the live cam industry as a cam model and almost double the amount of time studying — while working simultaneously — how relationships work in cyberspace, I am... More »

Proper Fisting Techniques for Gentle Stimulation

Does the phrase “anal fisting” make your sphincter clench in terror? Does it seem like an urban legend or an extreme party trick? Most people scoff at the idea of trying it because it sounds... More »

Camming Games, Contests Keep Customers Engaged

Last issue, I talked about the importance of changing up the ambience in a cam model room via new décor and small visual tweaks, to keep viewers engaged long-term. This time, I’d like to discuss... More »
Stay informed of the latest industry developments. Get XBIZ newsletters delivered to your inbox. Subscribe today!
Enter email address:

* To manage existing subscriptions click here.

Submit your press release to
multiple news outlets with 1 click.
Subscribe to RSS news feeds or
add free content to your website.
Access XBIZ news and articles
with your mobile device.
Access the latest issues of the industry's leading trade publications in digital form. View online or download for offline viewing.


XBIZ Retreat

May 30 - Jun 03
Miami, Florida

XBIZ Miami 2017

May 30 - Jun 02
Miami, Florida

XShow 18+ 2017

Jun 01 - Jun 03
Moscow, Russia

Cam Summit

Jun 02 - Jun 04
Lloret de Mar, Spain
Everyday thousands of business professionals browse XBIZ's industry directory for quality products and services. Not listed yet? Your company could be losing potential new business. Submit your company today!
Use XBIZ RSS feeds to stay informed of the latest industry developments or as a content syndication tool for your website!