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Is It Child Pornography If The Images Were Digitally Created Or Altered?

Okabe & Haushalter Nov 9, 2018 Child Pornography

Being charged with a child pornography crime is one of the worst things that can happen to a person, especially if you did not commit the crime or the allegations against you were fabricated, falsified, or exaggerated.

Fortunately, the term “child pornography” is defined in such a way that it leaves plenty of room for interpretation, which means a Los Angeles child pornography attorney knows many loopholes to get you out of trouble.

In some cases where someone is being accused of possession, production, or distribution of child pornography, the accuser has no idea what actually constitutes child pornography in California. But this would be such a big deal if California courts were capable of dismissing legless and baseless claims and would only punish those who deserve it.

Unfortunately, cases, where the prosecutor cannot tell a difference between a child pornography crime and conduct that does not amount to a crime are not unheard of.

Things would not be that bad if we were talking about something not as serious as child pornography crimes. If you are being charged with this crime, you face years in prison, hundreds of thousands of dollars in fines, and is registered as a sex offender for the rest of your life, all of which can turn your life into a complete disaster.

What constitutes child pornography in California?

Under the California Penal Code, knowingly committing one of the following acts constitutes child pornography:

  • Distribution
  • Production
  • Possession
  • Publication
  • Duplication
  • Printing
  • Sale of child pornography in any form (videos, audios, images, etc.)

However, in order to be charged with a crime related to child pornography, the prosecutor must also prove that when the act was committed, the defendant knew or should have known that the pornographic material showed a person under 18 years of age.

But that’s where it gets confusing: what if the images showing sexual, explicit photos of adults were altered to depict a minor? In other words, is it child pornography if the minor’s face was Photoshopped onto a naked body of an adult or if the images of child pornography were virtually or digitally created?

To answer this question, our experienced child pornography defense attorney in Los Angeles from Okabe & Haushalter is going to review a recent case.

Do digitally created images or photos that were altered constitute child pornography?

The defendant, Joseph Gerber, supplied his 13-year-old daughter with drugs and took non-nude photos of her as a form of payment. The father then used Photoshop to cut out her face and insert it onto sexual and nude photos of adult women.

After his arrest, Gerber confessed to digitally altering the images and putting his daughter’s face on nude photos of adult women. The father was convicted of child pornography possession and was sentenced to 13-and-a-half years in prison.

When the defendant appealed, his child pornography defense lawyers successfully cited a 2002 Supreme Court that stated it was not child pornography to possess, produce, or distribute computer-generated child pornography images.

In other words, as long as a minor under the age of 18 did not participate in or simulated sexual conduct, the personal possession or producing that content cannot be charged with child pornography. In Gerber’s case, no minor was actually participating in or simulating sexual conduct in the images depicting his 13-year-old daughter. As a result, Gerber’s conviction was overturned.

In view of the aforementioned, our Los Angeles child pornography defense attorney at Okabe & Haushalter has concluded that virtually created images of child pornography or images that were altered cannot constitute child pornography. However, as always, there are exceptions to the general rule, which is why it is advised to consult about your particular case. Speak to our lawyers by calling at 310-430-7799 today.