On paper, it seems reasonable enough. If a client is accused of possessing child pornography, a reasonable defense strategy might involve an expert witness able to explain how modern photo manipulation tools might have allowed the defendant to unknowingly possess or view criminal images. Perhaps a lawyer who also serves as an expert on child pornography could testify with a little demonstration of how innocent images can be contorted into pornography. This seems like a can’t miss idea!
As it turns out, that strategy can land the expert in some hot water. Ohio attorney Jack Boland, who went by Dean Boland at the time, took stock images of minors and morphed them using modern tech. Specifically, he replaced a doughnut with a penis, as one does. It’s a move that ultimately got him sued by the two minors in the photos he used for the courtroom demonstration, resulting in a $150K award for each child. Last week, a bankruptcy court ruled that Boland can’t discharge that debt.
Boland’s getting a bit of a raw deal here. The images he morphed for the purpose of defending his clients were never distributed and never involved the traumatization of child at the heart of a traditional child pornography case — which is probably why Boland’s not in prison on actual kiddie porn charges. When Boland took his case to the Sixth Circuit, however, these arguments were shot down with the court comparing the damage to defamation.
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It would seem to me that the “defamation” of nameless stock image models being explicitly shown to have done none of the acts involved in the demonstration to an audience of only a judge and jury would be roughly nil rendering this an inane comparison, but here we are:
“When he created morphed images, he intended to help criminal defendants, not harm innocent children,” wrote Judge Jeffrey Sutton of Boland. “Yet his actions did harm children, and Congress has shown that it means business in addressing this problem by creating sizable damages awards for victims of this conduct.”
On the other hand, while this guy shouldn’t be paying anything for “harming” stock image models, he should be paying some kind penalty as a stupid tax and if this is the only way, then so be it. Do you want to prove to a jury the wonders of photoshopped pastry dicks? Make some adult actor eat one on the red carpet. It’s less contextual, but it can get the point across without triggering the — justifiable — third rail of asymptotically approaching child pornography.
Lawyer who created digital child porn as expert witness owes $300K to women whose photos he used [ABA Journal]
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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.