NY Court Rules That Viewing Child Porn Is Legal
The New York Court of Appeals has ruled that viewing child pornography is legal, thereby dismissing one of two counts against a professor.
Six judges decided on Tuesday that James D. Kent, professor of public administration at Marist College in Poughkeepsie, should not have been convicted of viewing child porn, seeing it as different from possession.
Appellate Senior Judge Carmen Beauchamp Ciparick wrote a majority opinion for four of the six judges, Associate Judge Robert S. Smith wrote a concurring opinion, and Appellate Judge Victoria A. Graffeo wrote an opinion concurring with result only.
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Patrick Trueman, president of the anti-pornography organization Morality in Media, issued a statement denouncing the decision and calling upon the New York legislature to "act immediately."
"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," said Trueman.
"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."
Appellate Senior Judge Ciparick argued that viewing pornography and possessing it are fundamentally different.
"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 Ciparick. "To hold otherwise, would extend the reach of (state law) to conduct – viewing – that our Legislature has not deemed criminal."
In August 2009, Kent was found guilty of possession of child pornography on his office computer. He had unsuccessfully argued that someone at the college had put the content on his computer without his knowing and was sentenced to one to three years in prison.
"We must consider, among other issues, the evidentiary significance of 'cache files,' or temporary internet files automatically created and stored on a defendant's hard drive, and the defendant's awareness of the presence of such files," wrote Ciparick.
"We conclude that where the evidence fails to show that defendant had such awareness, the People have not met their burden of demonstrating defendant's knowing procurement or possession of those files."
Trueman of MIM believes that the damage caused by the children who were in the pornographic images should have been sufficient to have the count remain.
"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," he argued.
"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."
Appellate Judge Graffeo, while concurring with the result of the case, nevertheless took issue with the majority opinion of the New York Appeals Court regarding the legal viewing of child porn.
"The result of the majority's analysis is that the purposeful viewing of child pornography on the internet is now legal in New York," wrote Graffeo. "A person can view hundreds of these images, or watch hours of real-time videos of children subjected to sexual encounters, and as long as those images are not downloaded, printed or further distributed, such conduct is not proscribed. I am compelled to disagree because I believe that our Penal Law outlaws this purposeful activity."
