COLUMBUS, OH – Franklin County Common Pleas Court yesterday dismissed charges against a man who had been sentenced to 11 years in prison for recording fantasies of child molestation in a secret journal.
The American Civil Liberties Union of Ohio, which represented Brian Dalton in his appeal and subsequent motion to dismiss, hailed the ruling. The conviction gained international attention as the first time in memory that an American had been sentenced to prison over the content of his private diary.
In dismissing charges against Mr. Dalton on creation of obscene material that has a minor as its participant or portrayed observer, Judge Cain of Franklin County Common Pleas Court in his ruling said, “But ideas that run through one’s brain but no further cannot be the basis of a new criminal prosecution. The state is concerned that he may re-offend. But the judicial branch of government must resist the temptation to engage in preemptive strikes.” THE FULL DECISION CAN BE READ HERE.
Gary Daniels, Litigation Coordinator for the ACLU of Ohio praised the dismissal. “These charges should never have been brought. These writings, while disturbing and offensive were purely fictional and never distributed, published or shared with anyone. The First Amendment guarantees that our most private thoughts are protected from government probing or prosecution.
Dalton was convicted in June 2001. He pled guilty after his trial lawyer advised him against presenting a First Amendment defense. The ACLU then stepped forward to defend him, first arguing that his defense counsel provided ineffective representation by failing to raise the First Amendment defense and asking for a plea withdrawal. This motion was lost at trial court but was reversed by the 10th District Court of Appeals which remanded saying that the sentencing court should have allowed the plea withdrawal based on incompetent advice by the defendant’s trial counsel. Next, the ACLU moved to have the charges dismissed.
The diary entries for which Dalton was convicted involved depictions of sex with fictitious minor children. While child pornography is generally without First Amendment protection, the United States Supreme Court held last year that imaginary depictions of child erotica cannot be criminalized because their creation “records no crime and creates no victim.” That case, Ashcroft v. Free Speech Coalition, declared the federal Child Pornography Prevention Act unconstitutional, in large part because it criminalized the creation of “virtual pornography” involving youthful images.