Knowing that it was going to be a contender for Best Picture at the Oscars, Dr. SJ and I watched The Joker. Sure, we appreciated the acting, but neither of us liked the movie. We didn’t enjoy it. We wouldn’t watch it again. We wouldn’t recommend it to anyone else. Had we not watched it, our lives would not have been any less “rich.”
Stories about dysfunctional people, miserable lives, unhappiness, seem to be of great interest. Why? Maybe people see themselves in these dysfunctional people, but I don’t. Asking around about something to watch, many people pointed at a series called “Fleabag.” about a miserable young woman who manages to find, if not create, problems wherever she goes. Is this you? It’s not me. It’s not Dr. SJ. It’s not our children. It’s not someone I would want to know, and it’s certainly not someone I want to watch on the television.
Maybe we’re an utterly boring couple and family, who just don’t do the same things, live the same life, as everyone else. We all presume ourselves to be normal, to fit without the sphere of average folks, except of course those people who grew up in Lake Wobegone and suffer from delusions of grandeur. But we’re beginning to think that we’re two standard deviations above the mean, because so many others seem to find deviations standard.
These Ozzie and Harriet thoughts ran through my head after skimming a Fifth Circuit decision that came onto my radar. It involved criminal law and First Amendment law, so it certainly seemed the sort of opinion that would interest me, and I decided to take a look.
Clifford Mecham took his computer to a technician for repairs. The technician discovered thousands of images showing nude bodies of adults with faces of children superimposed. The technician reported the pornography to the Corpus Christi Police Department.
After receiving this report, police executed a search warrant of Mecham’s home and seized several electronic devices. Mecham waived his Miranda rights and admitted he had added the faces of his four granddaughters to photos and videos of adults engaged in sexual conduct.
The issue in the case faced the “intersection” of child porn, an unprotected category of speech under New York v, Ferber, virtual kiddie porn, protected speech under Ashcroft v. Free Speech Coalition, and “morphed” child porn, where the faces of real children are morphed onto adult bodies engaged in sex, such that no child is, in fact, directly harmed. But the facts of the case seem ripe for a new Netflix series.
A forensic analysis of the items seized from Mecham’s home revealed over 30,000 pornographic files. All these photos and videos were morphed child pornography using the faces of Mecham’s grandchildren. The children were four, five, ten, and sixteen in the photos Mecham used. Mecham emailed some videos to his oldest granddaughter. One of those videos shows that granddaughter’s face on an adult female having sex. Mecham superimposed his face on the male in the video. The video uses computer animation to show the male ejaculating, with the semen shooting to the granddaughter’s mouth.
Who would do such a thing? Well Mecham, obviously, but outside of a person with some awful psychological problem, who?
The court proceeded to do an analysis of the varying rationales behind Ferber, holding the creation of kiddie porn was unprotected, and the subsequent Supreme Court holding in Osborne v. Ohio, that possession of child porn was close enough. When virtual child porn became a thing, because Rule 34 is more than an old meme, the settled law adjusted for it.
Unlike real child pornography, virtual pornography is not “‘intrinsically related’ to the sexual abuse of children.” (quoting Ferber, 458 U.S. at 759). And unlike real child pornography, which results in “injury to the child’s reputation and emotional well-being,” no child is involved in the creation of virtual pornography.
And now the court was deciding the hybrid, the faces of real, identifiable children, morphed onto the bodies of adults engaged in sex. This case involving a grandfather and his grandchildren because he was angry at his daughter for not letting him see his grandchildren, which strikes me as an eminently wise decision.
Mecham later explained why he made the images. After Mecham spent many years interacting with his grandchildren, his daughter prevented him from having any contact with her children. By creating the images, he hoped to get back at his family for cutting him off.
Decisions like this remind me why being a judge isn’t all it’s cracked up to be. Child porn cases have become one of the more common cases on the federal criminal docket, and as the defendants are usually possessed of some financial wherewithal, they hire private criminal defense lawyers to defend them. In the early days, I took some of their calls and, ultimately, decided that as long as there were plenty of other lawyers willing to do the job, I would not.
It wasn’t that they didn’t deserve a defense, or that they might not be guilty. It was that I couldn’t stomach the evidence. I couldn’t tolerate the discussion in my office with the pediatrician who told me, “you know how it is.” No. No I do not know how it is. What I did know was that I wanted far more to leap across my desk and pound his face than defend him.
Maybe people were always like this, and maybe it was always happening, but I didn’t know about it. These things didn’t happen in my world, at least as far as I was aware. Even if the thought was lurking somewhere in the darkness of people’s minds, they controlled their impulse to act upon it. Maybe they saw themselves as living the life of Fleabag in their imagination, but they would still wake up on time, go to work, have normal relationships with normal people and do no one any harm.
Is that world gone? Did it never really exist? Or did it exist because that was the way we were told to behave and we conformed to a world where we didn’t put our grandchild’s face on an adults body and shoot semen into her mouth. The issue for Mecham is one of criminality, not acceptability, and, I pray, not one of normalcy.