A MORPHED IMAGE IS STILL CHILD PORNOGRAPHY.....

an illegal image should not become a legal innocent image simply because it was created by different means The People v Joseph Lowell Gerber: Super.Ct.No.CC811149 The recent ruling of the Court of Appeal of the State of California, Sixth Appellate District, in the case of The People v Joseph Lowell Gerber, that a morphed image of an obviously, and explicit, sexual nature depicting a person as being under the age of 18 years does not amount to child pornography, according to the proper interpretation of section 311.11 of Californias Penal Code, is another case that confirms the frustrations that law enforcement have to endure through the lack of harmonised laws against the sexual abuse and exploitation of children. Gerber was convicted in 2008 of being in possession of child pornography on the evidence of explicit sexual images of adult women with their faces removed and morphed by the face of his 13-year-old daughter. In the other words, the sexual images depicted a person made to appear or look like a person under the age of 18 years images to which, according to Gerber, he masturbated and had sick thoughts about his daughter. According to South African laws, those sexual images would have amounted to child pornography as images, however created, of a person, real or simulated, who is depicted, made to appear, look like or represent under the age of 18 years. Unfortunately, in so far as the degradation and exploitation of children are concerned, the case had to be decided under the laws of the State of California. The relevant section 311.11 of the California Penal Code reads as follows: Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment. There were no doubts that Gerber was in possession of computergenerated sexual images of a person depicted as being under the age of 18 years: the faces of the women in the images were of his 13-year-old

daughter. But the problem was that part of section 311.11(a) which reads ..... knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct.... Just one word personally was the key in the ruling of the court that the images Gerber created did not constitute child pornography! The Court of Appeals conclusion that such altered materials are closer to virtual child pornography than to real child pornography since the use of photo editing software to replace an adult's head with a child's head on pornographic images of the adult does not necessarily involve sexual exploitation of an actual child.....mere possession of them remains protected by the First Amendment to the United States Constitution..... is based on the ruling of the US Supreme Court in the case of Ashcroft v Free Speech Coalition that virtual child pornography, created without abusing a real child, is not an offence and is protected speech under the First Amendment of the US Constitution which sounds contradictory since one is talking about virtual child pornography! In so far as the expression a person under the age of 18 years personally engaging in or simulating sexual conduct in section 311.11(a) of the California Penal Code is concerned, the Court construed the word personally to mean that the image must depict a real child personally and actually engaged in or simulating sexual conduct depicted. Accordingly, we conclude that the evidence was insufficient to prove a violation of section 311.11. (See People v. Davis (1995) 10 Cal.4th 463, 509 [standard of review].) Since uncontroverted evidence established that the sexual images were of adult women and defendant merely superimposed J.'s head on their bodies, a reasonable trier of fact could not find that the images confiscated from defendant depicted J. "personally" engaged in or simulating sexual conduct and, consequently, could not find defendant guilty beyond a reasonable doubt of violating section 311.11. Does this mean that a sexually explicit image depicting a toddler being raped is not child pornography because the child is not personally engaged in sexual conduct? That taking pictures of the sexual abuse of two toddlers and having the pictures morphed so that their faces are switched is not child pornography? The problem, of course, is not misinterpretation of the law by the Court of Appeal but the law itself further evidence of the need for the harmonisation of laws against the creation and production, by any means, and the possession and distribution of child abuse images. The principle of no victim, no crime ignores the fact that child pornography, whether real or virtual, is not only the degradation of all children but makes all children vulnerable to the risk of abuse by paedophiles, child molesters and perverts.