NJ Man Freed After 'Child Erotica' Law Deemed Unconstitutional

Editor's note: This article contains descriptions of sexual acts involving children that some readers may find disturbing.

CAMDEN COUNTY, NJ — A Camden County man faced a slew of charges for downloading photos of a child, superimposing text with his sexual fantasies about her, and distributing the edited material to others. But a state appeals court tossed his indictment March 24 on the grounds that New Jersey's "child erotica" law isn't constitutional.

Andrew Higginbotham, of Brooklawn, downloaded photos of his friend's daughter that the child's mother uploaded to Facebook, according to court documents. Although the photos themselves were innocuous, Higginbotham edited text onto the images declaring his desire to commit predatory acts against the girl, including "wanting to molest" her.

The state presented information about Higginbotham to a grand jury, which returned an indictment charging him with 16 counts of child endangerment. Higginbotham's edited images didn't meet the longstanding legal standard for child-pornography offenses. But a New Jersey law passed in 2017 expanded the definition of child pornography to include the portrayal of children in a sexual manner, which laid the groundwork for Higginbotham's charged.

However, a three-judge panel in a state appeals court determined that New Jersey's "child erotica" amendment is too broad to withstand constitutional scrutiny. As a result, Higginbotham's "reprehensible conduct" didn't violate the law, according to the 39-page court opinion.

"Being sexually aroused by an image of a scantly clothed child is abhorrent, but it is not illegal," wrote Judge J.A.D. Whipple.

Brooklawn police began investigating Higginbotham because he had a journal with a "school picture of a young girl" on the cover, with sexually explicit statements written over the image, court documents state. Although Higginbotham initially denied knowing the child, he later told police that she was his friend's daughter.

Higginbotham told authorities that he used the journal for writing down his sexual fantasies involving young girls. He also sent photos and videos of the girl to others on Facebook. Some of the online material included the following, according to court documents:

• several photos with superimposed texts stating his desire to molest her.
• a video compilation of the girl in a bikini, with other girls also wearing them, containing the text, "masturbating my life away."
• a statement about masturbating "on top of her with her little panties while she laid in her bed sleeping."
• a photo collage with an image of Higginbotham's aroused penis under his sweatpants, surrounded by several pictures of the girl. He added text in which he described her performing oral sex on him.

Although Higginbotham spent time with the child when she was younger, law enforcement found no evidence that he sexually abused her. Additionally, the photos he pulled off her mother's Facebook page weren't sexually explicit — for instance, some of the photos showed the girl in jeans and a t-shirt, while she wore a shirt and tutu in others.

Higginbotham was indicted for child endangerment because his material violated New Jersey's amended child-pornography law, which prohibits portraying a child "in a sexually suggestive manner by otherwise depicting (her) for the purpose of sexual stimulation or gratification."

But the appeals court found that the state's amendment violated the U.S. Constitution's First and Fourteenth Amendments — the latter meant to prevent states from abridging federal rights. The legal opinion distinguishes child pornography and obscenity. Child pornography isn't legally protected since material showing the victims in sexual acts entails sexual abuse. Obscenity, however, has a more complex legal history, according to the appeals court.

"Because no child is made to engage in sexual conduct or to lewdly expose their genitals to create child erotica, the State does not have the same type of compelling interest in protecting children from it," the court opinion says.

The appeals-court judges claimed New Jersey's "child erotica" amendment is too vague to enforce. Otherwise, photos of children in swimsuits and certain athletic uniforms, or those taken for telehealth purposes, could violate the statute, the court determined.

The case would be different if Higginbotham morphed the photos to show the child engaged in a sexual act. But the man merely added text to the photos, and creating a mental picture alone doesn't violate obscenity standards, the court ruled.

"We do not doubt the potential for reputational and emotional harm to (the child) is certainly present here," the court opinion says, "but it is not a record of past abuse, even fake abuse."