ST. LOUIS — A Nebraska man who photoshopped a naked adult woman having sex, replaced her face with that of an 11-year-old girl and sent her the pic lost his motion to have his indictment dismissed.
As a result of a ruling Thursday by the 8th U.S. Circuit Court of Appeals, Jeffrey Anderson's indictment stands. Anderson, who entered a conditional guilty plea for one count of distributing child pornography, received a 10-year sentence for the act, which involved his half-sister.
"Anderson argues that the law as applied here is not narrowly tailored because it encompasses an image that clearly depicts adult bodies and because it punishes 'private' distribution of a morphed image," the panel wrote in its decision.
"But the harm a child suffers from appearing as the purported subject of pornography in a digital image that is distributed via the Internet can implicate a compelling government interestregardless of the image’s verisimilitude or the initial size of its audience. Anderson’s distribution targeted [the child] through her Facebook account, and the image suggested her involvement in sexual intercourse as an 11-year-old child.
"There was no less restrictive means for the government effectively to protect this child from the exploitation and psychological harm resulting from the distribution of the morphed image than to prohibit Anderson from disseminating it. We therefore conclude that 18 U.S.C. §§ 2252A(a)(2)(A) and 2256(8)(C) are constitutional as applied to Anderson’s conduct."
Industry attorney Lawrence Walters told XBIZ that the legality of morphed images appearing to depict a minor in a lascivious manner has been subject to inconsistent court rulings.
"In a case we handled, Stelmack vs. State, the court ruled that the statute did not prohibit morphed images of the heads of minors pasted on top of the body of a nude adult female," Walters said. "However, an earlier case from the 8th Circuit, U.S. vs. Bach, where Mr. Anderson’s case was heard, found that morphed images victimize minors every time they are viewed, since they falsely suggest the minor was engaged in sexual activity.
"So it is not a surprise that Mr. Anderson was convicted of this offense, and that the court rejected the First Amendment defenses.The Bach case noted that there may be some scenarios where the First Amendment would prevent criminalization of a morphed image of a minor but did not describe what circumstances would be required.
"Bottom line: It is extremely risky to publish or circulate any virtual or morphed images that appear to depict minors. Even advertising explicit content as child pornography can violate federal law, even if all models are over 18.”
Tim Henning, who leads the ASACP as executive director, told XBIZ that "virtual child pornography" is not a victimless crime.
"What distinguishes this decision is the fact that the morphed image in question depicted the sexual acts of two adults before the child's face replaced that of the woman in the image," he said. "Therefore no actual child was sexually abused in the production of the virtual child pornography.
"However, the morphed image is virtual child pornography that involves the depiction of a recognizable child and falls under historically unprotected speech even if it has not been specifically dealt with in previous decisions to date.
"The bottom line is the morphed image fraudulently depicts the sexual exploitation of an identifiable minor who will be repeatedly victimized every time it is viewed. The threat to the minor’s reputation and mental health are significant even into adulthood.
"The restriction of speech in this case is necessary in order to protect real and vulnerable children from this type of harmful sexual exploitation."