The court held that the Ohio statutes challenged in the case do not ban the possession of virtual child pornography as the Supreme Court defined that term in the Ashcroft case, but that the reference to virtual child pornography in the statute “merely allows a factfinder (sic) to consider circumstantial evidence to determine that the person depicted is a minor.”
The court held that the state still “must prove all elements beyond a reasonable doubt, including that a real child is depicted, to support a conviction for possession of child pornography,” under Ohio law.
The case in before the court stemmed from the prosecution of Roger L. Tooley Jr., a resident of Portage County, Ohio, on multiple counts of illegal use of a minor in nudity-oriented material or performance and pandering sexually oriented material involving a minor.
In a bench trial, Tooley was convicted on two counts of illegal use of a minor and three pandering counts, and sentenced to serve five concurrent 10 month prison terms, to be served following a six month sentence he received in a conviction on unrelated charges.
Tooley’s conviction was later overturned by the 11th District Court of Appeals, as the court concluded that one of the Ohio statutes Tooley had violated criminalized virtual child pornography, which contradicted the Supreme Court’s ruling in the Ashcroft case.
In reasoning that the Ohio statute does not contradict the Supreme Court’s ruling in the Ashcroft case, the Ohio court noted that the Supreme Court “left open the question of whether use of a real child’s image to create a depiction of nudity or sexual activity is unprotected speech,” and extended the 1st Amendment protection only to virtual child pornography that was created without any use of a real child’s image.
In the Ashcroft case, the Supreme Court “expressly avoided discussing the constitutionality of morphed images, but stated that ‘they implicate the interests of real children and are in that sense closer to the images in [cases involving actual child pornography]’,” the Ohio court stated in its ruling Wednesday. “We will not extend Ashcroft to cover morphed child pornography when the United States Supreme Court did not do so.”
Ohio-based attorney Dean Boland, who served first as an expert witness for the defense in the Tooley case, and then as Tooley’s attorney on appeal, told XBIZ that the Ohio court’s decision has “wide ranging implications” that go well beyond matters of creating or possessing virtual child pornography.
Boland asserted that technology has reached a point where virtual child pornography has become indistinguishable from the real thing, an argument more avoided than rejected by the court in this case.
“All the court said is that there’s nothing in the record of the case that is sufficient to show that the [lower] court accepted the argument that there is no way to distinguish between virtual and real child pornography,” Boland said. “They don’t say how you can determine the difference.”
Boland added that while “no legitimate expert has said they can tell the difference” between the most photorealistic virtual child pornography and actual child pornography, the Ohio court ruled that a jury can do so, even without the assistance of an expert.
Boland said that he had produced a set of exhibits in the trial that included 25 virtual depictions in which he morphed adults to look like children, and even the FBI’s own expert witness conceded that he could not tell the difference between the virtual and real images.
“There is no longer debate about this in the technical world,” Boland said. “Nobody credible still claims to be able to tell the difference.”
It’s a point on which even one of the Ohio justices presiding over the Tooley case appears to agree with Boland.
In a separate but concurring opinion, Justice Evelyn Lundberg Stratton wrote that she wrote a separate concurrence in order to state her belief that “Ashcroft v. Free Speech Coalition…. was wrongly decided and that we are rapidly approaching a time when it will become impossible to distinguish between virtual child pornography and actual child pornography.”
“The First Amendment, while clearly a critical component of American jurisprudence, is not without boundaries,” Stratton said. “In my view, freedom of speech should not be elevated over protecting our children from exploitation and abuse.”
Stratton added that “the time is near when virtual child pornography will be indistinguishable from actual child pornography.”
“When that time comes, I sincerely hope that the United States Supreme Court will reconsider its decision that virtual child pornography is protected expression under the First Amendment,” Stratton wrote. “Otherwise, our law enforcement will be unable to protect the most vulnerable of our society — our children.”
Boland said that while he agreed that protection of children is a laudable and important goal, the court also has to consider implications that go beyond the more obvious impact of equating virtual depictions with real ones.
“Pandora’s box has been opened here,” Boland said. “This decision might not seem like a big deal to some people, but what if an image of virtual child pornography is an image of you? What if the government wants to silence someone — how easy would it be for a government lab to produce an image that depicted that person molesting a child?”