Posted on 01/19/2008 10:28:12 AM PST by csvset
CONCORD – Sexual images a camp photographer created by combining the faces of young girls with women's bodies were not child pornography, the state Supreme Court ruled yesterday.
The ruling overturned the child pornography conviction of Marshal Zidel, who was sentenced in June 2006 to up to seven years in prison. Zidel, 61, of Somerville, Mass., was a photographer at Camp Young Judea in Amherst, where authorities say he superimposed pictures of 15-year-old girls onto images of naked adults.
The court ruled the pictures do not violate child pornography laws, partly because they did not involve sexual acts by actual children, and partly because they were not deliberately distributed. Justices cited a 2002 ruling in which the U.S. Supreme Court said federal child pornography laws went too far in trying to ban computer simulations and other fool-the-eye depictions of teenagers or children having sex. Such "virtual pornography" is protected as free speech, the court said.
"When no part of the image is 'the product of sexual abuse' ... and a person merely possesses the image, no demonstrable harm results to the child whose face is depicted in the image," Associate Justice James Duggan wrote for the court.
But in a dissent, Associate Justice Gary Hicks noted that the 2002 ruling let stand another section of the federal law that bans pornographic images created by computer alteration of innocent pictures of children, such as the grafting of a child's school picture onto a naked body.
Hicks also rejected the argument that the children were not harmed
"I believe that a child need not actually engage in the sexual activity depicted in morphed child pornography to be a victim of sexual exploitation," he said.
New Hampshire courts have considered such questions before. In 2002, former prep school teacher David Cobb tried to get a new trial on hundreds of child pornography charges by arguing that his pictures -- most made by pasting children's faces from clothing catalogues onto images of naked adult bodies -- were artistic images protected by the Supreme Court ruling. He lost several appeals to the trial court, state Supreme Court and federal court, but was released last year after spending 11 years in prison.
The former teacher from Philips Academy in Andover, Mass., was convicted of attempted sexual assault and child pornography after being arrested with a 12-year-old boy and a backpack full of pictures in Farmington.
PhotoShopping ANY image should be a crime punishable by stoning.
Police: Principal Cropped Student's Face Onto Pornographic Images
Looks like some Judges were protecting their own collections.
Perhaps the photographer is a sick, perverted freak, but being a sick, perverted freak isn't a crime. It's a free country. Sheesh.
As one who thinks that pedophiles should be executed, I still think this ruling was correct.
Actual child pornography, as Andrew Vachss says, is the photograph of a crime scene, documentary evidence of the worst violation that it’s possible a human being can commit. It’s several orders of magnitude worse than some perv playing with Photoshop.
Still, there should be a way, even absent a conviction, to get this guy on the sex offender lists.
“Where the hell is the crime supposed to be?”
Thought crime.
You must be one of those Emmanuel Goldstein supporters!
;)
“Still, there should be a way, even absent a conviction, to get this guy on the sex offender lists.”
Good idea, let’s start putting unconvicted people on the same lists as criminals. That will do a lot of the credibility of these lists.
THey will be in good company - 18 year old boys with 16 year old girlfriends, young children who pinch each others rear, and people who allegedly download pictures from the Internet.
I swear, dude. Hey, remember when conservatives believed the government should be small, and should essentially leave people alone?
What is wrong with these people? What's their thought process? "I think (fictional!) depictions of naked minors are icky, therefore their creators should be jailed?" News flash, guys: a government that has the power to criminalize thoughts you disapprove of also has the power to criminalize thoughts you do approve of. And when the government decides to make it a crime to whisper the name of Jesus, you will be partly responsible for it, and your wails of victimhood will win you no sympathy from me.
Oh, I'm sorry, did my language offend you? Why don't you try to have me put in jail?
MANCHESTER – Using software to place girls’ faces onto the naked bodies of adult women creates pictures that are indeed child pornography, even though the girls had been photographed in innocent ways, a judge ruled Friday.
The decision by Hillsborough County Superior Court Judge John Lewis came as Lewis convicted Marshall Zidel, the former photographer at a children’s camp on Baboosic Lake, on nine counts of creating such “morphed” pictures, using faces of 14- and 15-year-old girls.
Zidel, 59, a commercial photographer from Somerville, Mass., faces 3½ to 7 years in prison and $4,000 in fines on each count. He remains free on $50,000 bond and will be sentenced at a later hearing.
Zidel’s attorney, Behzad Mirhashem of the Manchester public defender’s office, said he would appeal the conviction to the New Hampshire Supreme Court, arguing that the state law on child pornography was unconstitutionally broad.
Mirhashem had argued that it was too sweeping to say any pornographic photograph combined with a “benign” part of a picture of a youth becomes child pornography.
“What if the nose in the image is the nose of an actual child? Is that enough to make it child pornography?” Mirhashem asked during closing arguments in the non-jury trial. “What if a picture involves adults in sexual activity, and over in the corner there is the head of a child – is that child pornography?”
New Hampshire law defines such pornography as “visual representation of a child engaged in sexual activity,” with a child defined as anyone younger than 16.
Zidel made the digital pictures while working as the official photographer of Camp Young Judaea, a seven-decade-old facility that each month hosts 350 children of Jewish backgrounds, age 8 to 15, from all over the country.
Zidel had worked as the camp’s photographer for more than 20 years.
Mirhashem noted that there is no evidence Zidel planned to distribute the nine digital photos, which were discovered after he accidentally left some of them on a CD of pictures he put together for a yearbook.
Zidel was arrested by Amherst police July 4 after the camp brought the pictures to their attention.
“These were a private fantasy . . . a story he was creating for himself,” Mirhashem said.
All the pictures show one or more adults in pornographic poses, usually with the women’s faces replaced by faces of girl campers.
One picture has the face of Zidel’s ex-wife placed onto a naked woman’s body. Another image has his own face placed onto the body of a man fondling the breasts of a woman, whose face had been replaced with that of a camper.
Several of the pictures included lewd captions, often carrying the first name of the camper whose face was shown.
Assistant County Attorney Nicole Fortune pointed to those captions to support her argument that the pictures were child pornography.
“He did not identify them as ‘unidentified adult body doing something.’ His own labeling shows how he regarded them. . . . He named them. He identifies the girl who is having sexual activity,” she said.
The question of what constitutes pornography has become complicated as computer software makes it increasingly easy to create realistic-looking images while bypassing traditional photography.
For example, in the 2002 case Ashcroft v. Free Speech Coalition, the U.S. Supreme Court rule that “virtual images,” created entirely by software without any actual photos involved, cannot be child pornography because they do not involve real children.
Mirhashem said he thinks photographs should be prosecutable as child pornography only if they involved an actual child posing or acting in obscene ways, and therefore suffering harm.
Lewis rejected that argument.
“I think that the issue of harm encompasses more than just subjecting children to photo sessions,” the judge said. “These photos were clearly recognizable as involving those real children. . . . They can create deep scars in connection with these children.”
“The Legislature . . . has decided that the way to protect children is not to allow the possession” of such pictures, Lewis said, adding that Zidel’s own thinking was secondary: “How he justifies this in his own mind, is up to him.”
“What is wrong with these people? What’s their thought process? “I think (fictional!) depictions of naked minors are icky, therefore their creators should be jailed?” News flash, guys: a government that has the power to criminalize thoughts you disapprove of also has the power to criminalize thoughts you do approve of.”
Many so-called social conservatives on this forum are really knee-jerk religious liberals.
They want an activist government - just that it should be activist for their peculiar beliefs only.
To them, liberty is what their creed of Christianity says.
They don’t favor small government - they want it intrusive, on their behalf only.
“Wash your mouth out you sicko freak.”
You were so offended you had to quote the dirty words?
Good going sparky.
Admin Mod, the parent of this comment needs the deep six.
If he wants to put his face on a porno pic that’s fine. I wonder if the parents of the children have considered suing him ?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.