New York's top court ruled Tuesday that simply viewing child pornography online does not constitute either criminal possession or procurement under state penal law.
The Court of Appeals dismissed two counts against James D. Kent, who was a professor of public administration at Marist College, where a virus scan of his computer in 2007 found pornographic images. He was convicted of two counts of procuring and 134 counts of possessing a sexual performance by a child. Now 65, he was sentenced to one to three years in state prison and began his sentence in 2009.
The Court of Appeals agreed that Kent was properly convicted because he had downloaded, saved and deleted 132 images. But the majority said some images in his computer cache, temporary files automatically stored from sites he viewed, cannot be held against him under state law.
The five judges said it's still a federal crime
to knowingly access with intent to view any book, magazine, periodical, film videotape, computer disk or other material containing an image of child pornography. Under state law, such browsing can be used to show a guilty intent, that access to an illicit image or site was not a mistake, they 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," Judge Carmen Beauchamp Ciparick wrote. "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 Victoria Graffeo wrote 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.
"It goes without saying that in light of the majority's decision, the Legislature needs to revisit this definition,"
Judge Robert Smith wrote separately that under Graffeo's reading, 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.
"This is surely a stringent punishment for someone whom many would think more pathetic than evil," Smith wrote. "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."