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NY court: Viewing child pornography online is not a crime

By JohnThomas Didymus     May 10, 2012 in Crime
The New York Court of Appeals has ruled that viewing child porn online is not a crime. The decision came in the case of James D. Kent, 65, former professor at Marist College, convicted of two counts of procuring and 134 counts of possessing child porn.
According to The Atlantic Journal Constitution (AJC), the New York Court of Appeals dismissed two counts against Kent who was sentenced to one to three years in state prison in 2009.
Reuters reports that in 2007, a virus scan of Kent's computer discovered the child porn.
According to The Christian Post, six judges decided on Tuesday that Kent should not have been convicted for only viewing child porn.
AJC reports that the Court of Appeals in its ruling agreed with his conviction for downloading, saving and deleting 132 images, but the majority of the judges said images in his computer cache, temporary files automatically stored from sites he viewed, cannot be held against him under state law.
Therefore, the court dismissed two of Kent's possession charges because the evidence showed that he only looked at the material. In its ruling, the court, distinguished between possession or procurement, and merely "viewing."
The judges observed that while it is a crime under federal law to knowingly access with intent to view any book, magazine, periodical, film videotape, computer disk or other material containing a pornographic image of a child, under state law such act can only be used to show a "guilty intent" and that the access was not a mistake.
The Christian Post reports that Appellate Senior Judge Carmen Beauchamp Cipatrick, who wrote a majority opinion for four of the six judges, said: "Nonetheless, that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession. Rather, some affirmative action is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen."
Judge Ciparick, according to The Christian Post, said further: "Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law. To hold otherwise, would extend the reach of (state law) to conduct – viewing – that our Legislature has not deemed criminal. We must consider, among other issues, the evidential significance of 'cache files,' or temporary Internet files automatically created and stored on a defendant's hard drive, and the defendant's awareness of the presence of such files. We conclude that where the evidence fails to show that defendant had such awareness, the People have not met their burden of demonstrating defendant's knowing procurement or possession of those files."
AJC reports that Chief Judge Jonathan Lippman and Judges Susan Read, Robert Smith and Theodore Jones Jr., agreed with Ciparick, but Judge Victoria Graffeo, disagreed. She argued that the Legislature recognized that a child is victimized each time his or her pornographic image is viewed, that every time an image is accessed it further drives demand, and that it should be considered illegal under the statute.
The Christian Post reports Judge Graffeo wrote: "The result of the majority's analysis is that the purposeful viewing of child pornography on the Internet is now legal in New York. A person can view hundreds of these images, or watch hours of real-time videos of children subjected to sexual encounters, and as long as those images are not downloaded, printed or further distributed, such conduct is not proscribed. I am compelled to disagree because I believe that our Penal Law outlaws this purposeful act."
Graffeo concluded: "It goes without saying that in light of the majority's decision, the Legislature needs to revisit this definition."
According to AJC, Judge Robert Smith countered Graffeo's position, pointing out that it suggests that someone "who does no more than click on a link to look at a pornographic picture for free — someone who has never interacted with a child victim or copied, downloaded or saved a picture or put one penny in a pornographer's pocket, could face up to seven years in prison for a first offense." Smith objected,saying: "This is surely a stringent punishment for someone whom many would think more pathetic than evil. I agree that the exploitation of children by child pornographers is an appalling evil; on this, I have no doubt that the court is unanimous."
Reuters reports the court ruled that in order to prove possession or procurement of child porn, it must be shown that the defendant had "dominion" or "control" over the material. According to the court, "dominion" or "control" requires that the defendant take "some affirmative act" to obtain the child porn and this could mean either printing or saving or downloading the material.
The court overturned two of the charges against Kent because the pornographic material in question was found in his computer's Web cache. The court maintained that this was different from downloading the material because having material on his computer's Web cache does not show that he had "control" or "dominion" over the material. According to Reuters, while the court agreed that child porn was reprehensible, it said that holding Kent guilty for material in his Web cache "overextended" the New York law.
Kent, however, claimed that the pornographic material was part of a research project and that he "abhors" child pornography. AJC reports that emails found in Kent's computer indicated he had collected the images as part of a potential research project on the regulation of child pornography. One of the email messages said that as a father, Kent was "pretty appalled" by them and that if it was not going to be a legitimate research project he would wipe them from his computer.
According to the Defense attorney Nathan Dershowitz, Kent had been asked to do a research project 12 year ago on child pornography and legislation. The attorney said he was disappointed that the court did not address the question whether deleted files on his computer hard drive that he no longer had access to could be used as evidence to show criminal possession.
According to The Christian Post, Patrick Trueman, president of the anti-pornography organization Morality in Media, issued a statement denouncing the decision and urged New York Legislature to "act immediately." He said: "Child pornography should be treated as a very serious violation of the human dignity of the victims and those who take enjoyment from the despicable act of viewing such material should be harshly punished. What the New York court has done is to give permission to pedophiles and child molesters to continue the sexual molestation and recording of child sex abuse."
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