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May 10, 2012

“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.