NEW YORK – In the wake of a New York court ruling that says it’s not illegal to “merely” view online child pornography, child advocates are urging Internet-savvy federal prosecutors to take over these kinds of cases as two state lawmakers rush to fix the law.
It is “a singular outrage that the highest court in New York has decriminalized the act of viewing child pornography by computer,” Patrick Trueman, president and chief executive of Morality in Media, said after the May 8 ruling by the New York Court of Appeals.
The high court unanimously agreed to reverse two of the dozens of child-pornography counts against a former college professor, saying there was no evidence the professor did more than look at some images on his computer.
The ruling resulted in a spate of head-spinning headlines like Gawker.com’s “Viewing Child Porn Online Officially A-OK in New York State” and “Looking at Child Porn Is Totally Legal in New York State” by the Atlantic Wire.
Mr. Trueman, a former federal prosecutor, said that until the law is fixed, all child-pornography cases in New York “that cannot now be prosecuted in New York state courts as a result of the court’s decision” should be handled in federal court by U.S. attorneys and prosecutors with the Internet Crimes Against Children Task Force.
“This will mean that there will be a lot more child porn cases in the federal system, but it is a much better situation than letting these child pornographers go,” Mr. Trueman said.
Two New York lawmakers have already jumped into action.
In a press release headlined “New York must close loophole that protects perverts,” New York state Sen. Martin J. Golden said he had introduced a bill saying that a person who “knowingly accesses [child pornography] with intent to view” has committed a felony crime.
“Child pornography is highly offensive” and it “should not matter if you view it, read it or download it. Simply the fact that you are viewing it is a crime, and New York should treat it as such,” said Mr. Golden.
New York state Assemblyman Joseph Lentol sponsored a similar bill in his chamber.
The high court ruling stemmed from an appeal by James D. Kent, 65, a former Marist College professor of public administration who was convicted on 136 counts of procuring and possessing child pornography in 2009.
He is currently serving a prison sentence of one to three years.
Following a routine computer upgrade in 2007, Kent’s work computer was found to contain deleted evidence of more than 30,000 images of young girls, including ones depicting children “engaged in sexual intercourse with adults,” “engaged in oral sex and sexual intercourse with dogs, adults and other children,” and “lewd exhibition of the exposed genitals of female children,” the high court wrote.
The photos and videos were downloaded and saved onto Kent’s computer between 2005 and 2007, and sorted into files and documents with names like “Arina,” “Jim” and JK,” the ruling said.
Kent initially “denied any knowledge” of the images, but later said he had been working on “a potential research project on the regulation of child pornography.”
In Kent’s appeal, lawyer Nathan Z. Dershowitz argued that just “accessing and displaying” Web images of child pornography was not illegal possession under state law.
The high court agreed, saying that to be guilty of possession, a defendant’s conduct “must exceed mere viewing to encompass more affirmative acts of control, such as printing, downloading or saving,” Senior Associate Judge Carmen Beauchamp Ciparick wrote for the majority. “To hold otherwise would extend the reach” of the law “to conduct – viewing – that our Legislature has not deemed criminal.”
“I do not support this view,” Associate Judge Victoria A. Graffeo wrote in a separate but concurring opinion, joined by Associate Judge Eugene F. Pigott.
“Because I conclude that the Legislature recognized that a child is victimized each time an image of the child is knowingly viewed, I believe that this conduct” is illegal, she wrote.
Despite not agreeing with her colleagues, Judges Graffeo and Pigott voted to strike Kent’s conviction.