Overzealous Child Porn Laws Could Ruin Main Line Teen’s Life

I imagine Neil Geckle fancied himself a connoisseur of sorts. He wasn’t into cars, or cigars or fine food. Instead—like most guys his age—Geckle’s passion was girls. And Geckle liked variety. To find it, he turned to a place where millions of people go every day to do much the same thing: He turned to Facebook. But unlike those other people, Geckle wasn’t looking for friends.

According to police, instead, the 19-year-old recent high-school grad set up a fake account, found profiles of girls he liked, and friended them. Then he printed out their profile pictures and pleasured himself to them—bringing social networking to a cringe-worthy new level.

Apparently Geckle was not satisfied with the solitary nature of his past-time, though; so each time he finished, he shot a picture of his erect penis hovering over the now defiled photo and uploaded it to Facebook, tagging the girls he had just “violated” and, allegedly, posting the pictures to their pages.

When several of his victims went to the cops, investigators had little trouble tracking the fake account to Geckle, who was living with his grandmother in Radnor Township.When confronted, he pleaded ignorance, telling police he “didn’t think it was a big deal.”

Prosecutors didn’t agree. Late last month they charged the teen with a slate of offenses, including child pornography and designing obscene material. He is currently sitting in Delaware County Prison on $100,000 bail awaiting trial.

Local media lit up with the story. “I think it’s disgusting. It’s terrible,” NBC Philadelphia quoted one of the girl’s parents as saying.  I couldn’t agree more. Geckle’s one-man show was despicable, narcissistic and a blatant violation of the privacy rights of the girls he targeted. But does he really qualify as a child pornographer? Apparently, under the law he does. But that doesn’t mean that convicting him as one will see justice served.

Since the passage of the PROTECT Act of 2003—which replaced a 1996 law that was overturned in 2002 for being too broad—the definition of exactly what constitutes child pornography has become troublingly broad. (Remember the case of the six Pennsylvania teens who were threatened with prosecution for “sexting” each other partially nude images of themselves?) As that case illustrated, prosecutors readily apply stringent child porn laws in cases that fall well outside the purview of real exploitation. A child pornography charge has become the nuclear option for DAs, and many of them are ready, willing and able to drop the bomb. It’s no surprise, then, that the number of convictions has skyrocketed since the 1990s, rising from a few dozen each year to nearly 2,000 in 2010. The Internet may be partly to blame, but cavalier prosecutors pushing the law to its limits has certainly played a role.

It’s not hard to see how it could happen. It turns out a child pornography-related offense is perhaps the only crime for which you can be charged and convicted without actually engaging in it—and by that I mean without promoting, distributing or possessing images of a real child engaging in an actual sexual act. In 2008, the U.S. Supreme Court ruled that even suggesting you have illegal child pornography (even if you don’t) can carry a mandatory minimum prison sentence. (Though just this week, a New York court ruled that viewing child pornography online isn’t illegal there. Lawmakers in that state have already vowed to pass a law to change that.)

These days, a child pornography charge doesn’t require that a child be harmed; for that matter, it doesn’t even require a child. Take the case of Steven Kutzner, a 33-year-old former Idaho middle-school teacher who, in 2010, was arrested, pleaded guilty and was sentenced to 15 months in federal prison for “possessing obscene visual representations of the sexual abuse of children.” The children in question? Bart, Lisa and Maggie Simpson (yes, those Simpsons). I kid you not. A U.S. court of law used taxpayer money to prosecute a man who got his rocks off looking at big-eyed yellow cartoons having sex. (Feel a little safer?)

Kutzner may have been guilty of copyright infringement. He was definitely guilty of bad taste. But child porn? I think not.

Nor does a child pornography charge require actual pornography. In 2008, a Sacramento Bee business reporter pleaded No Contest to felony obscenity charges for videotaping a practicing squad of fully clothed high-school cheerleaders and, apparently, focusing a little too much attention on their asses.

Given all that, it will come as no surprise to learn that so-called “morphing”—which involves creating one image out of two or more, and is what Geckle is alleged to have done—is fair game.  Last year, in the case United States v. Hotaling, the U.S. Court of Appeals for the Second Circuit ruled that: “[C]hild pornography created by digitally altering sexually explicit photographs of adults to display the face of an actual child is not protected speech under the First Amendment.”

In other words, take a yearbook headshot of a 16-year-old girl, paste it over the body of a Playboy Playmate, and voilà, you’re looking at mandatory jail time. Give it to a friend and the stakes are even higher. Geckle doesn’t stand a chance.

All this might not be so bad if it wasn’t for the extremely stiff penalties that are levied on offenders. A charge of possessing child pornography carries a mandatory minimum sentence of five years in prison and can be as high as 30 years depending upon various factors. Congress has boosted sentencing guidelines for child porn nine times since 1987, and with passage of the PROTECT Act of 2003, average sentences for child pornography-related crimes were roughly doubled. Sentences for receiving and possessing child porn are now so high that they often exceed prison terms for those convicted of actually raping a child.

It’s gotten so bad that even judges are speaking up. A 2010 survey conducted by the Sentencing Commission found that almost three-quarters of federal judges said that the mandatory minimum penalty for receipt of child pornography is too high, and 37 percent said the same thing about distribution.

Former Pennsylvania Senator Arlen Specter, who, in an article jointly written with Philadelphia attorney Linda Dale Hoffa, called mandatory sentencing for child pornography “unfairly disproportionate” offered this critical assessment:

“The fact that child pornography offenders can be given longer sentences than child abusers or violent offenders reflects a lack of care by Congress. In the rush to prove itself hostile to individuals who possess or distribute child pornography, Congress has obscured the real distinctions between different offenders. In the words of the Second Circuit, the current Guidelines were “cobbled together,” rather than drafted with purpose.”

The very fact that Specter and Hoffa spoke out is remarkable given the stigma attached to the crime. Let’s face it, child pornographers—and people like Neil Geckle—aren’t exactly sympathetic figures. Child pornography is a reprehensible crime that destroys the lives of its victims and perpetuates a culture of exploitation. But misapplying the statutes to throw the book at people who do creepy things when there are more applicable, and equitable, legal remedies undermines the spirit of the law.

Thanks to the Internet, millennials—and their younger siblings in Generation M—have at their disposal much more sophisticated, and potentially harmful, ways to misbehave. The schoolyard taunts of my day have given way to cyberbullying, while the equivalent of writing “For a good time, call …” on a boy’s bathroom wall is now likely a chargeable offense.

With the added power comes added responsibility. I get that. But isn’t it possible that technology has matured faster than then kids using it? If so, don’t people like Neil Geckle deserve a second chance? With a child porn charge he won’t get one. Instead he’ll spend the rest of his life on a sex offender registry facing restrictions on where he can live, what kind of job he can have, and who he can spend his time with. I’m not sure that’s what I’d call justice.