“[N]o constitutional principle … allows a criminal defendant to defend one criminal charge by urging his lawyer or witness to commit another. Otherwise, an individual on trial for a murder-by-stabbing charge could try to prove that the knife was not long enough to kill someone by using it to stab someone else in the middle of the trial.”
– 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, explaining in Doe v. Boland, et al., why an expert witness is not immune from the civil remedy provisions of federal child pornography laws.
The expert, Ohio attorney Dean Boland, created child pornography to demonstrate the difficulty of establishing “knowing” possession of child pornography. “The aim was to show it would be ‘impossible for a person who did not participate in the creation of the image to know [the child depicted is] an actual minor.'”
Boland created the images, forbidden by 18 U.S.C. § 2252A(a)(5)(B), by downloading pictures of children from a stock photo web site and then electronically “morphing” the pictures into images of adults engaged in very adult activities.
The children’s parents sued Boland “under 18 U.S.C. § 2252A(f) and § 2255, which respectively provide civil remedies to ‘any person aggrieved’ and to minor victims who have suffered ‘personal injury’ from a violation of 18 U.S.C. § 2252A(a).”
The federal district court dismissed the case but the Sixth Circuit reversed. Writing for a unanimous panel, Sutton noted that the federal civil remedy statute does not contain an expert witness exception. Moreover, wrote Sutton, Boland
could have illustrated the difficulty of discerning real from virtual images by combining two innocent pictures into another innocent picture.
Or, if Boland wished to use pornography to make the point, he could have morphed an image of an adult into that of a minor engaging in sexual activity. Boland indeed did the latter as part of his preparations, and had he stopped there we would not be here.
These images are not prohibited by federal law, see 18 U.S.C. § 2252A(c), and are protected by the First Amendment to the extent they are not obscene … .
Boland did something else. He morphed images of minors into pornography, images that “implicate the interests of real children.” …
The law expressly covers such images, 18 U.S.C. § 2256(8)(C), and the reality that Boland himself did not “use” real children to produce the images makes no difference … .
On remand, the federal district court will consider Boland’s argument that the children have not suffered “personal injury” under § 2255.
The parties have stipulated that the children are, mercifully, unaware of the created images.