Obscenity

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

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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).

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  1. Making child pornography should be the only crime. Selling or viewing it is the same as a crime report. I am sure that publishing videos of police sadistically abusing innocents turns them on and causes them to commit more crimes.

    1. Buying child porn is a way of enabling the pornographer. I view it is accessory after the fact.

      1. You want the police to have a lot more ways to ruin peoples lives than I do.

    2. you gotta admit, though, interesting that in this area, personal responsibility is actually taken into consideration. But if you want to eat a Twinkie and smoke a joint, well, NY can’t have you making your own decisions about that.

      1. Or eating the Twinkie WHILE smoking a joint, which is damn near NY death-penalty standards of criminality.

  2. I assume when they convict someone of watching kiddie porn they have to introduce the porn in question into evidence. If it’s illegal to look at it, conviction would seem to present a catch-22.

    1. Don’t you know that the watchmen are above the law they are sworn to uphold? When it is in the pursuit of ‘justice’, they make break any law.

      It’s all for our own good. Or so I’m told.

    2. This

      If looking at the porn is revictimizing the kid why would we want to revictimize them all over again to show it to a jury?

      That is a fucking legal fiction.

  3. It should only be illegal to possess it with the intent to spread or sell it.

    1. I don’t see anything criminal about selling or spreading child pornography. It alerts people to the crime that has occured. It alerts people to undesirable characters.

  4. Episiarch can finally stop going through the anonymizer.

    1. I moved out of New York years ago! This doesn’t help me!

      1. For when you visit!

  5. Making simply looking at something a crime is not going far enough. For the truly enlightened progressive utopia that must come, we need thought crime and a very large army of thought police to monitor it. How else can we achieve true progress? FORWARD!

  6. How dare a court construe a statute. That’s not at all why we have courts.

  7. Like Drugs, Possession should never be a crime.

    Making Drug/Porn possession criminal is an effort to destroy its market by attempting to kill the demand. It doesn’t seem to work for either.

    1. And in the case of porn it creates what amounts to a thought crime. Just what exactly is the crime here other than lusting after children?

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

    Phew! Dodged a bullet there!

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