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Published by Iyavar Chetty

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Categories:Types, Research, Law
Published by: Iyavar Chetty on Aug 31, 2011
Copyright:Attribution Non-commercial


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an illegal image should not become a legal innocent imagesimply because it was created by different meansThe People v Joseph Lowell Gerber: Super.Ct.No.CC811149
 The recent ruling of the Court of Appeal of the State of California,Sixth Appellate District, in the case of 
The People v Joseph Lowell Gerber 
,that a “morphedimage of an obviously, and explicit, sexual naturedepicting a person as being under the age of 18 years does not amount tochild pornography, according to the proper interpretation of section311.11 of 
California’s Penal Code
, is another case that confirms thefrustrations that law enforcement have to endure through the lack of harmonised laws against the sexual abuse and exploitation of children.
was convicted in 2008 of being in possession of childpornography on the evidence of 
explicit sexual images of adult womenwith their faces removed and “morphed” by the face of his 13-year-old daughter 
. In the other words, the sexual images depicted a person
madeto appear or look like a person under the age of 18 years –
images towhich, according to
Gerber, he masturbated and had “sick thoughts” about his daughter.
According to South African laws, those sexual imageswould have amounted to child pornography as images,
however created 
, of a person,
real or simulated 
who is depicted, made toappear, look like or represent under the age of 18 years.
Unfortunately, in so far as the degradation and exploitation of children areconcerned, the case had to be decided under the laws of the State of California. The relevant section 311.11 of the
California Penal Code
reads asfollows:
Every person who knowingly possesses or controls any matter,representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape,video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulatingsexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison, or acounty jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment.” 
 There were no doubts that
was in possession of computer-generated sexual images of a person depicted as being under the age of 18 years:
the faces of the women in the images were of his 13-year-old 

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