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Jan 30, 2013 12:59 PMPublication: The Southampton Press

Courts Have Ruled On Side Of Victims In 'Morphing' Cases

Jan 30, 2013 1:27 PM

The arrest of architect Jay Lockett Sears, who is facing federal child pornography possession charges, might prompt some observers to wonder whether cutting-and-pasting innocent images onto pornography, while unusual and disturbing to many, actually qualifies as a crime—though recent court rulings suggest that he will have a hard time fighting the charge on those grounds.

At issue is if Mr. Sears’s alleged actions, in which he created images by cutting out the faces of minors he had previously photographed and pasting them onto the faces of women appearing in pornographic photographs, qualifies as being in possession of child pornography. In some of the images confiscated by authorities, Mr. Sears reportedly cut out photos of himself and pasted his face over the heads of the men in the pornographic photos, to make it appear that he was having sex with the girls. He also took some digital images of the images he created, according to authorities, though it is still unclear if he shared or transmitted them to others.

The process of altering images, usually with the aid of computers and not glue and scissors, is known as “morphing” and is considered a crime—a federal crime, in fact—when it is done to alter the images of children to make it appear that they are having sex. Morphing is defined as the creation of a visual depiction of a lewd sexual act by combining one or more images, including the identifiable images of children.

The criminal complaint filed against Mr. Sears states that morphing violates Chapter 18 of U.S. Code 2256 which prohibits the depiction of sexually explicit conduct involving minors. He is facing up to 10 years in prison.

Laura Ahearn, the executive director of the not-for-profit Parents for Megan’s Law and the Crime Victims Center, said the main defense typically used by those accused of morphing is that their actions do not qualify as criminal because they did not actually have sex with the victims, nor take photos of others molesting children. Others have argued, unsuccessfully, that such action is protected as free speech.

“Unfortunately, a lot of people in a community think this is not so bad,” Ms. Ahearn said, referring to the crimes that Mr. Sears has been accused of. “They think that it is just people who are curious and are looking at photos—but that is wrong.”

For Ms. Ahearn, and other advocates for children’s safety, morphing represents the exploitation of innocent children, and suggested that those who commit such a crime could eventually start sharing the images they make online and with others—or, even worse, start molesting children.

“If [Mr. Sears] is arguing that it is not so bad, I would say it is,” Ms. Ahearn said. “You have that image, you have looked at it, you have created it. That child that now has somebody else’s body, an adult body—you are hurting that child, exploiting them.”

While she does not know Mr. Sears personally and is unfamiliar with his case, Ms. Ahearn said such charges are alarming when they are filed against a prominent public figure who has had considerable contact with children. She also said that his arrest should encourage parents to speak with their children about their safety.

“It is really frightening to the community when there is somebody in a position of trust like this and they find the other face of the individual,” Ms. Ahearn said. “It devastates the community when this person professes that they want to help the community when, at the same time, they have this other side—a dark side—that is hard to reconcile.”

The outcomes of several recent cases, in which the defendants were charged with creating images that exploited children, strongly suggest that the courts consider morphing to be a serious crime, regardless of how the images in question were created. The cases, which include the United States v. Hotaling and Doe v. Boland, have sided with the victims.

In United States v. Hotaling, the defendant, John C. Hotaling, was charged with possession of child pornography after authorities said he combined pictures of six female minors with pornographic images of adults to make it appear that the minors were engaging in sexually explicit conduct. On February 28, 2011, the U.S. District Court of Appeals, Second Circuit, ruled that “the district court was correct in holding that child pornography created by digitally altering sexually explicit photographs of adults to display the face of a child is not protected expressive speech under the First Amendment.”

In that case, Mr. Hotaling was charged with one count of possession of child pornography after he admitted to creating and possessing sexually explicit images of six females that had been digitally altered through the “morphing” process. He had challenged his indictment, arguing that the statute that applied was unconstitutionally vague and overbroad, according to court documents.

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