“Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law,” Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges.
James D. Kent, a college professor, was indicted on two counts of promoting a sexual performance by a child and 141 counts of possessing a sexual performance by a child, convicted and sentenced to prison in 2009.
May 9, 2012 – 1:59 PM ET | Last Updated: May 9, 2012 5:00 PM ET
Viewing child porn online is no longer a crime in the state of
New York, following a ruling from the New York Court of Appeals on
Tuesday.
James D. Kent, a college professor, was indicted on two counts of promoting a sexual performance by a child and 141 counts of possessing a sexual performance by a child, convicted and sentenced to prison in 2009. The appeals court dismissed one of the counts of promotion and one count of possession, but supported the other convictions.
The court’s decision hinged on the fact that the images were not downloaded, only viewed. The court ruled that it cannot prove possession of an image that was automatically stored in the computer’s cache without the owner of the computer’s consent.
Tens of thousands of images of prepubescent girls around the age of eight or nine were found in folders on Kent’s hard drive. Kent denies his guilt, and has argued that someone else at Marist must have placed the images on his computer.They were found on his hard drive by an IT employee when Kent complained that his office computer was too slow. Kent teaches business administration at Marist College in Poughkeepsie, New York.
But some of the images were not downloaded by Kent; they were viewed online and stored as a file in his browser’s cache.
“Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law,” Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges.
“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.
The judges made it clear that they condemn child pornography, but Ciparick wrote that it was not up to the courts to “criminalize all use of child pornography to the maximum extent possible.” That, he wrote, is up to the legislature.
As the law stands, viewing an image online is not the same as possession, and thus not illegal.
James D. Kent, a college professor, was indicted on two counts of promoting a sexual performance by a child and 141 counts of possessing a sexual performance by a child, convicted and sentenced to prison in 2009. The appeals court dismissed one of the counts of promotion and one count of possession, but supported the other convictions.
The court’s decision hinged on the fact that the images were not downloaded, only viewed. The court ruled that it cannot prove possession of an image that was automatically stored in the computer’s cache without the owner of the computer’s consent.
Tens of thousands of images of prepubescent girls around the age of eight or nine were found in folders on Kent’s hard drive. Kent denies his guilt, and has argued that someone else at Marist must have placed the images on his computer.They were found on his hard drive by an IT employee when Kent complained that his office computer was too slow. Kent teaches business administration at Marist College in Poughkeepsie, New York.
But some of the images were not downloaded by Kent; they were viewed online and stored as a file in his browser’s cache.
“Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law,” Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges.
“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.
The judges made it clear that they condemn child pornography, but Ciparick wrote that it was not up to the courts to “criminalize all use of child pornography to the maximum extent possible.” That, he wrote, is up to the legislature.
As the law stands, viewing an image online is not the same as possession, and thus not illegal.
http://news.nationalpost.com/2012/05/09/viewing-child-porn-on-the-web-now-legal-in-new-york/
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I am not at all surprised by an elected official
ReplyDeletemaking such a careless law..I am going through a contentious custody dispute and my judge gave the father/sexual & physical abuser full custody of our 3 & 5 yr old daughters. A step beyond viewing child porn..victimizing small, helpless children, actual incestual pedophilia. The biggest phenomenon plaguing our family courts today is pedophiles getting custody. Yes, that is true in America in 2012! This is happening because child abuse has become the biggest source of revenue for the courts. Yes, judges are condoning children to be physically & sexually abused all in the name of money & greed! It is the most despicable vile thing imaginable. Protective parents are losing their children to the abusers all over the country. I have never been so close to evil in my entire life. It is unconscionable and incomprehensible that Judges with children and grandchildren are making these decisions that put children in harm's way. Until we abolish judicial immunity and there is accountability, this will continue to pervade our family courts.
I remain astonished by the courts decision in your case. I am glad you are putting up a good fight. Is there anyway to get the case in front of another judge? I didn't think to ask you that before. Accountability is very important.
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