Fantasies Not Criminal

The New Jersey Appellate Division dismissed criminal charges against a defendant, holding that a "child erotica" amendment to the endangerment statute was unconstitutionally vague

The facts

The Brooklawn police began investigating defendant because he had a journal with a school picture of a young girl on the cover. Written over the photo were disturbing sexually explicit statements. Defendant provided a statement to the police, wherein he admitted the notebook belonged to him. He said it was a journal, a way to express himself.

Though defendant initially denied knowing the identity of the child on the cover, he eventually told police she was his friend's daughter. Police identified her as B.R., born in 2008. Defendant spent time with B.R. when she was younger, but police found no evidence defendant ever sexually abused her. Defendant said his journal was for writing down the sexual fantasies he had about young girls.

After obtaining a warrant for the data from his Facebook accounts, the police discovered conversations defendant had with four different people on Facebook in which he sent several pictures and one video of B.R., each accompanied by sexually graphic narratives describing B.R. performing oral sex on him. Every photo of B.R. defendant sent was innocuous. She was always clothed. For instance, several times he sent a picture of her wearing a black and white striped shirt and a pink tutu. Other photos depicted B.R. in jeans and a t-shirt.

However, several of these photos had explicit text superimposed over them. He once sent the photo of B.R. in the pink tutu with a 264-word sexual fantasy superimposed over it. Text on the other photos describe "wanting to molest" her. He also sent a video compilation of several photos of B.R. in a bikini, pictured with other girls also wearing bikinis, with the words "masturbating my life away" superimposed over the photos.

Additionally, he twice sent a photo collage which included a photo of his aroused penis under his sweatpants, surrounded by several pictures of B.R. This collage had text superimposed over a picture of B.R., again describing her performing oral sex on him. A second collage, the top photo being his aroused penis under his sweatpants, had pictures of B.R. with text over them reading "girl lover" and "how many inches you think I could put in her little [lips emoji]." Defendant also sent another picture of underwear for young girls. He sent the picture of his sweatpants with superimposed text describing the excitement he gets when B.R. sits on his lap superimposed on it, but next sent  message saying "most [of] that actually [n]ever happened with her."

Defendant additionally sent explicit messages with text alone—not superimposed over photos—in conversation with others on Facebook. These, like text superimposed over the pictures, referred to oral sex with B.R., defendant's receiving pleasure from having her sit on his lap, and a statement about masturbating "on top of her with her little panties while she laid in her bed sleeping." Much of the explicit content, however, was superimposed over photos of B.R., as described above.

Though defendant initially denied sending pictures of B.R., he then clarified he had never sent "nudes." He downloaded the pictures from B.R.'s mother's Facebook page or took them himself and wrote the text superimposed on the pictures. Defendant denied ever masturbating near B.R., adding he put that in the captions to "increase shock value."

Overbreadth

Although defendant's reprehensible conduct in no way constitutes "acting in good faith," the thrust of the holding in Lee demonstrates that on its face, the child erotica amendment fails to provide adequate notice of proscribed conduct and is, therefore, unconstitutionally vague.

(Mike Frisch)