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Court Holds Viewing Child Pornography
Does Not Necessarily Indicate Possession
The Court of Appeals, New York ruled on Tuesday that viewing child pornography on the Internet without any follow-up action like saving or printing files does not create an automatic conclusion of possession of pornographic materials. The ruling was made in the course of considering the case against James Kent, a former professor at Marist College who was convicted in 2009 for 143 counts of possession of child pornography. Two vital counts of that ‘possession’ were dismissed by the court of appeals raising questions as to the fate of the rest.
The question that was considered was whether copies of a web page automatically stored in the computer’s temporary cache while browsing the internet can be construed as ‘possession.’ The court held that to ‘possess’ the cached images, “the defendant’s conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving.”
Judge Carmen Ciparick wrote for the court that the prosecutors need to prove, “at a minimum, that the defendant was aware of the presence of those items in the cache.”
When in 2007, Kent asked information technology staff to have a look at his computer, an employee found numerous photos and videos of young children in compromising positions. Almost 30,000 files were found in the computer’s cache. Kent had argued that he had used the images as part of his research in child pornography and that it could not be possession as he was mostly unaware that such files were saved in his computer’s cache.
Kent was convicted by a non-jury trial of 143 counts of possession. On Appeal, in 2010, the Second Department Appellate Division upheld the conviction and ruled that a cached web page “is evidence that the web page was accessed and displayed on the defendant’s computer screen.”
On Tuesday, the Court of Appeals dismissed two counts which related to files that had not been saved on purpose.
The appellate court mentioned, “a defendant cannot knowingly acquire or possess that which he or she does not know exists.”
However, Judge Victoria Graffeo wrote that the opinion was so broad as to legalize viewing child pornography in New York. Though she concurred in the appellate court’s decision, she said that the opinion goes against the intent of the legislature to punish consumers and eradicate the market for child pornography.
Graffeo wrote “The majority’s decision … will, unfortunately, lead to increased consumption of child pornography by luring new viewers who were previously dissuaded by the potential for criminal prosecution.” Judge Eugene Pigott, too, joined Graffeo and wrote that it is a crime to consciously access child pornography.
The case has been sent back for resentencing.
The case is the People v. James Kent, New York State Court of Appeals No. 70.