A New York Court of Appeals issued a ruling this week that amounts to making the viewing of child pornography legal in the state of New York.

Reuters is reporting that the court issued its decision on May 8 in the case of James D. Kent, 65, a college professor at Marist College in Poughkeepsie, New York. In 2007, a virus scan of Kent’s computer uncovered child pornography. He was convicted of 134 counts of possession of child pornography and two counts of procuring it, and was sentenced to one to three years in prison.

In a decision based on legal technicalities, the New York Court of Appeals dismissed two of Kent’s possession charges because he only looked at the material, an action that doesn’t meet the state’s definition of possession and procurement under the law.

In order to be guilty of possession and procurement, authorities must show that a defendant had dominion and control over the material. Because the images were found in the browser cache of Kent’s computer, the judges decided that Kent took no affirmative action to obtain the porn, such as printing or saving or downloading the material.

“Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law,” wrote Senior Judge Carmen Beauchamp Ciparick in the majority opinion.
 
“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,” Ciparick wrote. “To hold otherwise, would extend the reach of (state law) to conduct — viewing — that our Legislature has not deemed criminal.”

While all of the six judges who ruled in the case agreed that child pornography is an abomination, they disagreed whether it was necessary to “criminalize all use of child pornography to the maximum extent possible,” as Ciparick wrote in the majority opinion. The majority said that was up to the Legislature, not the courts, to decide.

Judge Victoria A. Graffeo summed up the decision as saying, in essence, that “the purposeful viewing of child pornography on the internet is now legal in New York.”

Patrick Trueman, President and CEO of Morality In Media and the former Director of the Child Exploitation and Obscenity Section at the U.S. Department of Justice, called the decision an outrage.

“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,” he said.  

“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.”

In addition to demanding the re-arrest and trial of Kent under existing federal law, he is also calling upon the Attorney General and the Administrator of the Office of Juvenile Justice and Delinquency Prevention to authorize the New York City and State, Internet Crimes Against Children Task Forces to take over all child pornography possession cases currently being prosecuted by New York State Prosecutors and investigated by the Task Forces until the opinion is overturned.

In the meantime, “the New York State Legislature has its work cut out for it,” Trueman says, “and it should act immediately.”

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