California Dad's Conviction Reversed in Virtual Child Pornography Case Involving his Daughter

A California state appeals court overturned a Milpitas, CA man’s conviction Wednesday saying that he should not have been convicted of child pornography after he was found guilty of superimposing images of his 13-year-old daughter’s face onto bodies of women engaged in sexual behavior.

Why? The pictures did not show actual minors engaging in sexual activity nor simulating sex acts, which are the elements needed in California to carry out a conviction of child porn, punishable by up to three years in prison.

The Sixth District Court of Appeal in San Jose, CA said that the child porn ban was to prevent children from being exploited and by interpreting it too broadly and applying it to virtual child porn could violate the constitutional standard the U.S. Supreme Court established in 2002 when it struck down a federal law prohibiting computer-generated graphic images of a sexual nature.

It was concluded in a 3-0 ruling that possession of altered images, virtual child pornography, remains protected by the First Amendment.

The man was convicted in 2009 of possessing child pornography and supplying his daughter with marijuana and cocaine. He was sentenced to 13 years and four months in prison.

The court overturned two of the man’s three drug convictions because the trial judge allegedly instructed jurors on the wrong law. Prosecutors will be able to retry those counts as well as Wednesday’s appeal ruling to the state Supreme Court.

Virtual child pornography, also known as “barely legal” porn has become one of the Internet’s newest trends. The images feature children’s heads on the bodies of adults over the age of 18 or adults that resemble someone under age and legislation has had a difficult time deciphering what lies on the border of reality and fantasy. With the rise of the Internet and emerging technological advancements, circulation of virtual child pornography has take the shape of e-mails, fantasy games and even social networking services. The Internet social world, Second Life features “ageplay,” where people can engage in sexual activity with child avatars, which has brought an on slew of child pornography legal and moral dilemmas. The issue of “ageplay” and virtual child porn has resulted in numerous child pornography charges which have created a necessity for legislation to better define the laws of virtual reality.

It seems the law is in a continuous combat with technology and its progression. The Internet cannot ever be entirely restricted to the laws of a particular state or even country has. For now, virtual child pornography has not been found to be a link to the sexual abuse of children. In the state of Florida, for a conviction of possession of child pornography to stick, there must be real children involved. In virtual child porn cases it has yet to be found that victims are created through its production.

If you have been charged with possession of child pornography in relation to computer-generated images anywhere in the state of Florida, contact the Florida Sex Crimes Defense Lawyers online or call us toll-free at 866-608-5529.

Client Reviews
"Could never see myself using any other law firm. My case was a difficult one it was handled with perfection and extreme professionalism." R. B.
"The staff was very professional and attentive. They answered all my questions and walked me through the process step by step. I was very pleased with the outcome of my case." D.W.
"The whole staff at Whittel & Melton was nice and always ready to help. However, I worked mostly with Jason. He demonstrated that he understood what to expect with our case and better that he cared about what was happening. I was very pleased with the outcome of our case." G.S.