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An Ohio lawyer who serves as an expert witness in child pornography cases is on the hook for $300,000 in civil damages for Photoshopping courtroom exhibits of children having sex, a federal appeals court ruled Friday.
Attorney Dean Boland purchased innocent pictures of two juvenile girls from a Canadian stock-image website, then digitally modified them to make it appear as if the children were engaged in sexual conduct.
Boland was an expert witness for the defense in a half-dozen child porn cases and made the mock-ups to punctuate his argument that child pornography laws are unconstitutionally overbroad because they could apply to faked photos.
As a result, in 2007 he found himself the defendant in a deferred federal child-porn prosecution in Ohio, even though his exhibits helped clear at least one client of child-porn-related allegations. Now, a federal appeals court is upholding a $300,000 verdict in a lawsuit brought by the parents of two of the girls whose images Boland doctored.
“This $300,000 award undoubtedly amounts to tough medicine for Boland,” the 6th U.S. Circuit Court of Appeals ruled (.pdf) Friday. “When he created morphed images, he intended to help criminal defendants, not harm innocent children. Yet his actions did harm children, and Congress has shown that it ‘means business’ in addressing this problem by creating sizeable damages awards for victims of this conduct.”
Boland, a former state prosecutor, transformed a picture of a 5-year-old girl eating a doughnut into one of her having oral sex. Another photo was of a 6-year-old girl’s face placed on the body of an adult woman having sex with two men. He purchased the pictures from iStockPhoto, according to court records, and morphed them to help child porn defendants make a nuanced legal defense.
The parents of the children, who were not named in the case, lodged the complaint (.pdf) against him in 2007 after learning of the photo morphing from the FBI. Under the 1986 Child Abuse Victims Rights Act, each victim is entitled to a minimum $150,000 in damages.
Boland argued that he was immune from such a lawsuit because, among other reasons, he’d created the images for use in court, never distributed them, and that the First Amendment protected him.
But the court ruled that it was immaterial that Boland never displayed the images outside of court and never transmitted them electronically.
“The creation and initial publication of the images itself harmed Jane Doe and Jane Roe, and that is enough to remove Boland’s actions from the protections of the First Amendment,” the appeals court ruled.
The law under which the parents sued demands proof that the girls suffered “personal injury.” But Boland argued that the children didn’t know about the pictures, a point the appeals court said was immaterial.
“Even if Doe and Roe never see the images, the specter of pornographic images will cause them ‘continuing harm by haunting [them] in years to come,” the appeals court said.
Child-porn laws prohibit “knowingly” accessing child pornography. The morphed images were a bid to demonstrate that the law violated the First Amendment on “vagueness and over-breadth grounds,” because a defendant could not know whether what he was viewing was an actual or virtual image of a child having sex.
Boland did not immediately respond for comment.