L.A. Superior Court Judge Carol H. Rehm, Jr. dealt a stunning blow to defendants Stephen P. Shoemaker and Stefan McDonald today when he refused to strike 12 alleged child porn photos from consideration by the jury in the Internet obscenity/child porn trial that is now in its seventh day.
"I'm very disappointed with the judge's ruling," said attorney Jeffrey Douglas, who represents Shoemaker. "I believe it is against logic and not in keeping with the law as expressed by the U.S. Supreme Court in Ashcroft v. Free Speech Coalition. However, my client still has many arguments to make, and I have every hope for a favorable outcome to the trial."
At particular issue this morning were 12 photos culled from servers hosting two Websites, beachbaby.com and blowout.com, all but one of which photos were available for viewing by the 'Net-surfing public back in 1998, when charges were filed against the defendants.
The prosecution rested its case early Tuesday afternoon after the testimony of its last witness, Det. Scott McCallon, was completed, and after moving for the admission into evidence of some 86 exhibits, many of which were photos. It was at that point that Douglas, joined by Kevin Donahue, counsel for co-defendant McDonald, moved under Penal Code Sec. 1118.1 to have 12 of 14 alleged child porn photos removed from consideration for failing to meet the criteria for child pornography set forth in Ashcroft v. Free Speech Coalition. He exempted two photos that depicted young-looking people apparently engaging in sex acts.
"None of the [other photos] appear to depict sexual conduct," Douglas argued. "They appear to have been taken in a nudist or naturist environment — what we know as a nudist camp."
Douglas stated that in order for an image to be child pornography, it must involve sexual child abuse in its production. To support this, he referred to several portions of the Ashcroft v. Free Speech Coalition decision.
"The Government says these indirect harms are sufficient because, as Ferber acknowledged, child pornography rarely can be valuable speech," wrote Justice Anthony Kennedy for the majority of the court. "This argument, however, suffers from two flaws. First, Ferber's judgment about child pornography was based upon how it was made, not on what it communicated. The case reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment."
"The second flaw in the Government's position is that Ferber did not hold that child pornography is by definition without value. On the contrary, the Court recognized some works in this category might have significant value, see id., at 761, but relied on virtual images the very images prohibited by the CPPA as an alternative and permissible means of expression: '[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative.' Id., at 763. Ferber, then, not only referred to the distinction between actual and virtual child pornography, it relied on it as a reason supporting its holding. Ferber provides no support for a statute that eliminates the distinction and makes the alternative mode criminal as well."
Douglas then considered each image individually, pointing out that several do not even depict genital exposure, much less the "lewd exhibition of the genitals" that even the California law requires to meet its own definition of child porn. However, said Douglas, "What matters is, do those 12 images record child abuse?" He stated that they do not.
In response to the defense motion, Redondo Beach City Prosecutor Alan Honecutt relied heavily on a People v. Kongs, a 1994 California Appeals Court case — well before the Ashcroft v. Free Speech Coalition decision but several years after New York v. Ferber, the seminal child porn case to which Justice Kennedy frequently referred in his FSC opinion.
To begin with, however, Honecutt called the court's attention to another section of the Ashcroft v. Free Speech Coalition decision, which states, "Section 2256(8)(C) [of the Child Pornography Prevention Act] [CPPA] prohibits a more common and lower tech means of creating virtual images, known as computer morphing. Rather than creating original images, pornographers can alter innocent pictures of real children so that the children appear to be engaged in sexual activity. Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it."
Honecutt argued that because the court did not consider Sec. 2256(8)(C) of the CPPA, the court therefore supported the Act's contention that "altered innocent pictures of real children," a description which could apply to at least some of the challenged photos in the current case, would be considered child porn under Ferber, and therefore also under the Ashcroft v. FSC decision.
With that background, Honecutt quoted from the Kongs decision, which set forth a number of criteria that a court could consider in deciding whether a particular image fit the description of child pornography:
"1) whether the focal point is on the child's genitalia or pubic area;
"2) whether the setting is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
"3) whether the child is in an unnatural pose, or in inappropriate attire, considering the age of the child;
"4) whether the child is fully or partially clothed, or nude;
"5) whether the child's conduct suggests sexual coyness or a willingness to engage in sexual activity;
"6) whether the conduct is intended or designed to elicit a sexual response in the viewer."
Honecutt then went through each of the challenged images, noting characteristics of each that he felt fit the California Appeals Court's criteria, claiming often that a particular pose of the person in the photo was "designed to elicit a sexual response in the viewer" — a criterion from the 1994 decision that the U.S. Supreme Court would appear to have specifically rejected in Ashcroft v. FSC.
In rebuttal, Douglas noted that Kongs, a photographer, was charged with actual sexual abuse of children, and that his conviction on child pornography charges was mainly an adjunct to his conviction on the child abuse charges, of which the child porn was a recordation of those acts — thus fitting exactly the distinction regarding child porn that the U.S. Supreme Court, in Ashcroft v. FSC, noted was made in the Ferber case.
Of the photos at issue in the current case, Douglas stated, "No sexual abuse, no child porn." And as to the final point in the Kongs decision, Douglas declared, "I don't know how the Supreme Court could have made more clear that the subjective response of the viewer is irrelevant."
Douglas also challenged several of Honecutt's descriptions of what was taking place in the charged photos; specifically what Honecutt termed the "sexual invitation" conveyed in several of the girls' expressions.
"A smile is not an 'invitation to engage in coitus,'" Douglas averred. "Many, many have smiled at me over the course of my life, and very few of them have offered to engage in coitus with me. Mr. Honecutt himself has smiled at me, but I don't believe that he wishes to engage in coitus with me either."
It took almost two hours for the sides to complete their arguments, after which Judge Rehm took a half hour to read the cases the attorneys had cited and to formulate his decision. When he returned, he noted that the main question before his was whether Sec. 311.11 of the California Penal Code, the child pornography statute, was overbroad in its definition of the offense, and he concluded that it was not. He also noted that Ashcroft v. FSC addressed a ban on virtual child pornography, and he took specific note of the section to which Honecutt had referred, that even altered images could "implicate the interests of real children," and that the vast majority of the images presented real children with exhibition of their genital areas "for the sexual exploitation of the viewer." He therefore upheld Douglas' objection to only one of the photos the prosecution had introduced.
"The Court declines the expansive reading of Ashcroft that the defense proposes," Judge Rehm stated. "The Court thinks the sexual exploitation of a child is a valid component of child pornography."
Douglas then asked if it were irrelevant to the Court's decision that the photos may have been altered? The judge said that it was. Douglas then presented an extreme example — a photo of a child's head crudely affixed to the nude body of an adult — and asked whether the judge would consider that to be child pornography, and the judge again affirmed that in his view, it would.
When Douglas attempted to get the judge to further define his ruling, however, Judge Rehm refused to be pinned down to just where on the spectrum of child imagery he would draw the line between child porn and protected speech. At that point, Douglas and Donahue asked for a recess to decide which witnesses they would present during the defense case, in light of the judge's ruling on the photos. It was clear, however, that both defense attorneys were dismayed by the judge's ruling.
Douglas said that he would probably call three or four witnesses over the course of the next two days, and that he expected the case to go to the jury by week's end.
