Nine-tenths of the law

“The pur­pose­ful view­ing of child pornog­ra­phy on the Inter­net is now legal in New York.”

Judge Car­men Ciparick

“From the view­point of these child vic­tims, there is no such thing as a harm­less view­ing of their images.”

Judge Vic­to­ria Graffeo

James Kent knew that there was some­thing wrong with his com­puter. He had only recently acquired the com­puter — not through a pur­chase of his own, but through his employer. Kent taught pub­lic admin­is­tra­tion at a col­lege in upstate New York and the com­puter had been installed in his office as a replace­ment for an older one. When the IT depart­ment had put the new one in they sim­ply moved Pro­fes­sor Kent’s files onto the new computer’s hard drive.

Not want­ing to mess with a com­puter that wasn’t really his, Pro­fes­sor Kent called the college’s IT depart­ment and asked them to come check the com­puter out. The prob­lem couldn’t be fixed on site, so the IT employee took the hard drive back to the com­puter cen­ter. There, a virus scan iden­ti­fied a file con­tain­ing dis­turb­ing images. The col­lege turned the hard drive over to the local police depart­ment and a full inves­ti­ga­tion ensued.

The hard drive con­tained fold­ers in which inves­ti­ga­tors found 30,000 images of scant­ily clad young girls. The images were dis­turb­ing but deemed by pros­e­cu­tors not to be ille­gal. How­ever, the computer’s Inter­net his­tory and cache also con­tained traces of Inter­net searches and his­tory of vis­its to child pornog­ra­phy sites. The com­puter also con­tained copies of mes­sages sent to another, uniden­ti­fied user, about the pos­si­bil­ity of con­duct­ing a research project on the reg­u­la­tion of child pornog­ra­phy. Finally, the unal­lo­cated space on the com­puter hard drive con­tained traces of deleted files that showed minors engaged in sex­ual activity.

Pro­fes­sor Kent was indicted on 143 counts related to the traces of web­sites in the cache and the traces of deleted files of child pornog­ra­phy. He was con­victed of 136 of the 143 counts. The appel­late court upheld his con­vic­tion not­ing that the most impor­tant dis­tinc­tion was between inad­ver­tent and inten­tional pos­ses­sion of images on the web and con­clud­ing that the num­ber of images, the repeated vis­its to the web­sites and the saved mes­sages about the research project all indi­cated con­clu­sively that the mate­r­ial was inten­tion­ally possessed.

New York penal law sec­tion 263.15 makes it ille­gal to “pro­cure” child pornog­ra­phy. Other sec­tions of the code define “pro­cure” as “gain­ing pos­ses­sion” and yet another sec­tion defines pos­ses­sion of sex­ual mate­r­ial as “know­ingly hav­ing pos­ses­sion or con­trol” of the mate­r­ial. Thus it was, on Tues­day of this week, that the New York State Court of Appeals was asked to rule whether the view­ing of child pornog­ra­phy on the Inter­net con­sti­tuted “pos­ses­sion” for the pur­poses of New York’s crim­i­nal law. (In an odd twist of his­tory, the high­est court in New York is the Court of Appeals and the trial court is the Supreme Court, the exact oppo­site of nearly every other legal juris­dic­tion in the U.S. and an odd use of the word ‘supreme.’)

The major­ity deter­mined that there was a dis­tinc­tion between pos­sess­ing and con­trol­ling images — hav­ing them phys­i­cally or dig­i­tally in a man­ner in which they could be mod­i­fied or fur­ther dis­trib­uted — and sim­ply view­ing them. Because the New York state leg­is­la­ture chose to define the law to apply only to pos­ses­sion and not to sim­ple view­ing, the court ruled that the lat­ter was not a vio­la­tion of New York law as it is cur­rently writ­ten. Though all of the judges agreed that child pornog­ra­phy was abhor­rent and that its pro­hi­bi­tion was sound pub­lic pol­icy, this was a case of judi­cial restraint. Faced with the oppor­tu­nity to rewrite leg­is­la­tion from the bench to con­form with the judges’ view of what the leg­is­la­tion should say, the judges declined to do so and instead invited the state leg­is­la­ture to act and crim­i­nal­ize view­ing with­out pos­ses­sion if the leg­is­la­ture deter­mined to do so.

The hold­ing affected only two of the crim­i­nal counts and Kent still faces a prison term for other mate­r­ial on the com­puter. The case hold­ing applies only in New York, and Ohio courts have already ruled that the applic­a­ble pro­vi­sions of Ohio law pro­hibit view­ing such mate­r­ial on the Inter­net. Within a day of the rul­ing, leg­is­la­tors from both par­ties had promised to intro­duce leg­is­la­tion to address the issue. In the mean­time, ‘pos­ses­sion’ turns out to be even more than nine-tenths of the law in New York.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on May 10 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.