Viewing Child Pornography Ruled Not a Crime in New York

According to a recent ruling by the New York Court of Appeals, the act of viewing child pornography is distinctly different — and separate — from the act of possessing or procuring child pornography; the act of just viewing it, is not necessarily illegal. The ruling comes from a case against college professor James D. Kent, whose work computer was found to have hundreds of images stored in its web cache. The court ruled that having items stored in the cache does not demonstrate any form of intent, and dismissed the related charges of possession. Kent remains guilty of several related crimes dealing with pornography saved to the hard drive.

“Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law” wrote Senior Judge Carmen Beauchamp Ciparick, explaining the court’s four-to-two majority. “Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen. To hold otherwise, would extend the reach of (state law) to conduct — viewing — that our Legislature has not deemed criminal.”

With this decision, the court is making an important, but contentious distinction, and the implications of the ruling — specifically the way it can be spun — are sure to be felt far and wide. The logic behind the court’s decision is clearly based on the idea that viewing, or rather being shown an image, does not necessarily require intent, and likewise, the automatic caching of images does not require intent. Images saved to the hard drive, however, are a different matter entirely, and remain sufficient for conviction. This is certainly a delicate issue that requires further thought and legislation, but in the meantime just “viewing” child pornography is not necessarily a convictable crime in New York, so long as no evidence of possession or procurement is available.

(via MSNBC, Michael Van Poppel)

Relevant to your interests

• Man reports accidentally downloading child porn, is barred from seeing his child
• Judge rules refusing to decrypt a hard drive is covered by the Fifth Amendment
• Seattle library upholds man’s right to watch (legal) porn on its computers

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Eric Limer