CONCORD, N.H. — Sexual images a camp photographer created by combining the faces of teenage girls with women's bodies are not child pornography, the state Supreme Court has ruled.
The Jan. 18 ruling overturned the child-pornography conviction of Marshal Zidel, who was sentenced in June 2006 to up to seven years in prison. Zidel, 61, of Somerville, Mass., was a photographer at Camp Young Judea in Amherst, where authorities say he superimposed pictures of 15-year-old girls onto images of naked adults.
The court ruled the pictures did not violate child pornography laws, partly because they did not involve sexual acts by actual children, and partly because they were not deliberately distributed. Justices cited the 2002 ruling Ashcroft v. Free Speech Coalition in which the U.S. Supreme Court said federal child pornography laws went too far in trying to ban computer simulations and other fool-the-eye depictions of teenagers or children having sex. Such "virtual pornography" is protected as free speech, the court said.
"When no part of the image is 'the product of sexual abuse' ... and a person merely possesses the image, no demonstrable harm results to the child whose face is depicted in the image," Associate Justice James Duggan wrote for the court in State of New Hampshire v. Zidel.
But in a dissent, Associate Justice Gary Hicks noted that the 2002 ruling let stand another section of the federal law that bans pornographic images created by computer alteration of innocent pictures of children, such as the grafting of a child's school picture onto a naked body.
Hicks also rejected the argument that the children were not harmed.
"I believe that a child need not actually engage in the sexual activity depicted in morphed child pornography to be a victim of sexual exploitation," he said.
New Hampshire courts have considered such questions before. In 2002, former prep school teacher David Cobb tried to get a new trial on hundreds of child-pornography charges by arguing that his pictures — most made by pasting children's faces from clothing catalogues onto images of naked adult bodies — were artistic images protected by the Supreme Court ruling. He lost several appeals to the trial court, state Supreme Court and federal court, but was released last year after spending 11 years in prison.
The former teacher from Philips Academy in Andover, Mass., was convicted of attempted sexual assault and child pornography after being arrested with a 12-year-old boy and a backpack full of pictures in Farmington.