New York's Highest Court Says Merely Looking at Kiddie Porn Is Not a State Crime


Yesterday New York's highest court ruled that merely looking at online child pornography is not a crime under state law:

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 were on his screen. To hold otherwise would extend the reach of article 263 to conduct—viewing—that our Legislature has not deemed criminal. 

New York's ban on child pornography predates the Internet and has not been revised to address online images. The corresponding federal law, by contrast, was amended in 2008 to cover anyone who "knowingly accesses with intent to view" sexually explicit images of minors. Such a defendant also can be charged with "receiving" child pornography "by computer," which carries a five-year mandatory minimum sentence for each image. By comparison, the defendant in the New York case, who was convicted on two counts of "procurement" and 134 counts of possession, received a sentence of one to three years.

The New York Court of Appeals also ruled that the existence of automatically cached images on a defendant's computer does not amount to a crime if he is unaware of them. Two federal appeals courts have reached similar conclusions regarding federal law. In 2002 the U.S. Court of Appeals for the 10th Circuit said a Utah man could be convicted of possessing child pornography based on cached images, but it emphasized that he knew his Web browser was automatically saving them (and had in fact tried to delete them). "To possess the images in the cache," the U.S. Court of Appeals for the 9th Circuit ruled in 2005, "the defendant must, at a minimum, know that the unlawful images are stored on a disk or other tangible material in his possession."

Morality in Media President Patrick Trueman (former director of the Justice Department's Child Exploitation and Obscenity Section) had a predictably over-the-top reaction to the New York Court of Appeals' interpretation of state law:

Child pornography is the photographic record of the sexual abuse of a child so it is a singular outrage that the highest court in New York State has decriminalized the act of viewing of child pornography by computer.  

Children live with shame and hurt from knowing that a record of their abuse circulates on the Internet. Each time these photos are viewed, the child is revictimized. Some children never recover from the experience. 

Child pornography should be treated as a very serious violation of the human dignity of the victims and those who take enjoyment from the despicable act of viewing such material should be harshly punished. What the New York court has done is to give permission to pedophiles and child molesters to continue the sexual molestation and recording of child sex abuse. 

Contrary to Trueman's implication, of course, the decision does not affect the legal status of child molesters. And whatever you think of his claim that looking at a picture violates someone's rights (an argument that Jesse Walker considered in a 2009 Reason essay), the fact remains that New York's legislature did not choose to make it a crime. Trueman's outrage at "those who take enjoyment from the despicable act of viewing such material" has nothing to do with what the statute actually says, and he offers no evidence that the appeals court's reading is erroneous. Instead he recommends that New Yorkers who look at child pornography be prosecuted under federal law, which he evidently considers more enlightened. It's not.

The New York Court of Appeals' decision is here (PDF).