Here’s why a South Jersey man won’t be tried for sex fantasies written over girl’s photos
CAMDEN - A South Jersey man who repeatedly scrawled sexual fantasies over photos of a young girl can’t be prosecuted under a state law against “child erotica,” an appeals court has ruled.
The man was accused of using photos of a friend’s child to express sexually explicit thoughts, including some that he shared in Facebook conversations, the appellate ruling said.
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Police in South Jersey began an investigation into the man because he had a journal with the girl’s photo on the cover, along with “disturbing sexually explicit statements,” the appellate ruling said.
He told investigators the journal “was for writing down the sexual fantasies he had about young girls.”
He had been charged with 16 counts of creating, distributing, and possessing child erotica, as well as possessing it with the intent to distribute.
Child erotica not same as child porn
But the appeals court said the child erotica measure was “impermissibly vague" and "overbroad," making it unconstitutional.
"A law that prohibits protected speech, no matter how abhorrent and distasteful society considers that speech, is overbroad and cannot stand,” it said.
The man had appealed a Camden trial judge’s order in March 2022 that denied his motion to dismiss his indictment.
The charges against him were brought under a 2018 "child erotica" amendment to the state's endangerment statute.
The amendment expanded the definition of child pornography to include items that show a child “in a sexually suggestive manner,” the appeals court noted.
The man argued that phrase applied only to images of an actual child engaged in a sex act or in a sexually suggestive pose, it said.
He contended the charges against him violated his right to free speech under the First and Fourteenth Amendments.
The prosecution, on the other hand, contended the erotica measure also applied to “a mental image created with words.”
The ruling said the 2018 amendment, when viewed in the context of previous court decisions, improperly expanded the definition of child pornography “to include images of children who are not engaged in sex acts or whose genitals are not lewdly displayed.”
As a result, it said, the measure could be violated by photographs of children at the beach or during cheerleading and gymnastics competitions.
It noted photographing a child in public “is not unlawful, even if the child is scantily clothed.”
“Being sexually aroused by an image of a scantly clothed child is abhorrent, but it is not illegal,” it said.
The three-judge panel noted pictures of the girl – some taken from her mother’s Facebook page and others photographed by the man – were “innocuous” images of a clothed child.
It acknowledged the potential “for reputational and emotional harm” to the girl, who was born in 2008.
The 39-page decision also said police found no evidence of any sexual abuse of the child.
In addition, the ruling found the 2018 amendment used the wrong legal standard to regulate “the private possession of child erotica.”
The March 24 ruling said the state could prohibit child pornography “based on its compelling interest in protecting children from sexual abuse,"
But child erotica “is not child pornography and does not require any child to be subject to sexual abuse or similar sexual exploitation in its production.”
It also said a person has a right “to view obscene material in the privacy of one's home.”
“A state's attempt to thwart that right amounts to regulation of thought, which is plainly unconstitutional,” it said.
Jim Walsh is a senior reporter with the Courier-Post, Burlington County Times and The Daily Journal.
This article originally appeared on Cherry Hill Courier-Post: New Jersey child-erotica measure unconstitutional, says appeals court
