The New York Court of Appeals has released an important decision that viewing online child pornography is not illegal under New York law. The ruling has triggered an outcry and demands for legislative reforms. However, the opinion is worth reading and raises a broader issue on the required level of intent and knowledge for these crimes.

The decision will result in the reversal of two dozen cases involving online pornography. The case before the Court involved former Marist College professor of public administration James D. Kent, 65. Kent who was convicted on 136 counts of procuring and possessing child pornography in 2009. He was sentenced to one to three years.

The case raises an issue that we have discussed previously on how prosecutors pile on counts of child pornography based on each image. However, these cases often involve the download of hundreds or thousands of images in a single click. I have seen cases where a couple of downloads involved a few pictures found to be child pornography and led to charges. In Kent’s case, he was found to have downloaded and then deleted files containing images of children.

Appellate Senior Judge Carmen Beauchamp Ciparick wrote a majority opinion for four of the six judges.

Advocates are calling the ruling an “outrage” and the “decriminalizing” of child pornography. However, Ciparick’s decision simply emphasized conventional notions of scienter: “Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law.”

The case did not involve just a couple of images, making the choice of this appeal more interesting. However, Kent insisted that he was “doing research” on child pornography:

The allocated space on defendant’s hard drive also contained a “My Documents” folder with subfolders labeled “cdocs” and another labeled “work,” and an additional folder labeled “JK.” The “cdocs” subfolder contained approximately 13,000 saved images of female children, whom Investigator Friedman estimated to be 8 or 9 years old, dressed in lingerie or bathing suits and many with their legs spread open. The “work” subfolder contained an additional 17,000 saved images of female children, some organized into further subfolders named for a particular child. The JK folder held a file labeled “porndef.pb,” which contained a document that included the text of four messages dated between June 1999 and July 2000 and directed to the unidentified recipient “P.B.”1 The messages apparently relate to a potential research project on the regulation of child pornography and include comments such as “sooner or later someone at this college is going to wonder why I keep looking at porno sites.” A final message dated July 11, 2001 states:

“Well, this last batch pretty much tears it. While, as somebody’s father, I’m pretty appalled by this stuff, I also don’t want to get arrested for having it. So let’s do this—if this is a legitimate research project, let’s write it up and tell the deans (and preferably also the cops) what we’re doing and why. Otherwise, let’s drop it in the most pronto possible fashion.
“I don’t even think I can mail the disk to you, or anyone else, without committing a separate crime. So I’ll probably just go ahead and wipe them. You have the URL’s if you want to pursue it.
“See you sooner or later, no doubt. Kent.”

The Court however was concerned (as are many civil libertarians) with how courts have been treating access and downloading of images as proof of intent. With surfing on the web, the concern is that images can be accessed without knowing before hand that they are child pornography. This may not be the strongest such case for the defense but the concern is a valid one:

Like the federal courts to address the issue, we agree that where no evidence shows defendant was aware of the presence of the cached files, such files cannot underlie a prosecution for promotion or possession. This is necessarily so because a defendant cannot knowingly acquire or possess that which he or she does not know exists (see United States v Kuchinski, 469 F3d 853, 863 [2006] [to prosecute a defendant who lacks knowledge about the cache for possession of files stored therein “turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control”]).

However, cached images can serve as evidence of defendant’s prior viewing of images that were, at one time, resident on his computer screen. Such evidence, like a pattern of browsing for child pornography, is relevant to the mens rea of both crimes by showing that a defendant did not inadvertently access an illicit image or site or was not mistaken as to its content.

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. We do not agree that “purposefully making [child pornography] appear on the computer screen — for however long the defendant elects to view the image — itself constitutes knowing control” . . . Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that

The question comes down to whether there was proven intent and proven possession in the case. In the concurrence by Judge Smith, the dangers of a broad interpretation of the criminal law (as advocated by another judge) was discussed:

Judge Graffeo Click for Enhanced Coverage Linking Searches argues, in substance, that we can best effectuate the Legislature’s intention by reading the statutes expansively, to include as many “consumers” as the statutory language can reasonably be interpreted to permit. I do not agree.

Under Judge Graffeo Click for Enhanced Coverage Linking Searches’s reading, someone who does no more than click on a link for the purpose of looking at a pornographic picture for free — someone [*22] who has never interacted with a child victim, has never copied, downloaded or saved a pornographic picture of a child, and has never put a penny in the pocket of a child pornographer — is subject to up to seven years in prison for a first offense (see Penal Law § 70.00 [2] [d]). This is surely a stringent punishment for someone whom many would think more pathetic than evil. Nor can we safely assume that bringing as many consumers as possible within the reach of the law is the most effective way to lessen or eliminate the trade: A policy of draconian enforcement directed at the most minor and peripheral of users is perhaps no more likely to eliminate child pornography than a similar policy would be to eliminate illegal drugs.

One can certainly argue both sides of this question, but the vitriol and hatred directed at these judges is unwarranted and unfair. These judges are not pro-child pornography any more than the vast majority of citizens. They are attempting to maintain basic requirements of intent and proof in an area where politicians have been competing to show that they are the toughest on child porn. These are legitimate concerns raised by these judges, who voted to reverse despite the considerable public pressures and passions.

Source: Washington Times