New York Court: Viewing Child Pornography Not the Same as Possession

October 18, 2012

New York Court: Viewing Child Pornography Not the Same as Possession

Possessing child pornography is a serious crime in New York. However, in the age of the Internet, it is sometimes unclear what "possession" really means. Is it enough to simply visit a webpage that contains illicit material? Or does a person need to take affirmative steps to download or otherwise save the prohibited images?

The New York Court of Appeals recently addressed this issue, holding that simply visiting a webpage that contains child pornography is not enough to support a conviction.

The case involved a New York college professor who came under suspicion after he brought his malfunctioning computer to the school's tech support office. There, a worker discovered a number of photos and videos that allegedly depicted child pornography. The college then relinquished the computer to the police, who found more than 30,000 potentially illicit files in the computer's cache. A cache is the place where a computer stores websites so that they can load more quickly the next time they are visited.

The professor claimed that he had viewed the websites as part of his research and that he was not aware that his computer automatically saved files to the cache. Despite this defense, the professor was convicted on 143 counts of possession of child pornography and given a sentence of one to three years in prison.

Cache Storage Not Possession

The professor and his defense attorneys appealed the sex crime conviction, arguing that he never really "possessed" the pornographic files because he had not intentionally saved them to his computer. He claimed that he should not be penalized for the fact that his computer automatically saved the websites, especially because he was not aware that the computer had that function.

Ultimately, the Court of Appeals agreed. It held that a defendant can only be convicted of possessing digital files that he or she intentionally saved. At the very least, the prosecution must show that the defendant had an awareness of the items in the computer's cache. In supporting its ruling, the court stated that "a defendant cannot knowingly acquire or possess that which he or she does not know exists."

The court's ruling dismissed two of the 143 counts on which the professor was convicted.

Impact on Future Prosecutions

Opponents to the ruling worried that the decision might make it harder to prosecute child pornography crimes in New York. Indeed, for the short term, it might. The court's ruling means that the mere act of viewing a website containing pornographic images or videos of children is not illegal in and of itself.

However, this may not be true for long. Experts predict that the New York legislature will address this issue and pass a bill to close the "loophole" in the law. In addition, the possibility of prosecution under federal law remains open. Under federal law, the mere viewing of child pornography is sufficient for conviction, and the penalties are substantially more severe than under state law. Although there has been much criticism from not only defense attorneys but from federal judges as well of the harshness of the federal sentencing structure, it seems there is little chance that Congress will provide any relief.

The case serves as an important reminder for individuals charged with child pornography crimes in New York -- since many different issues and possible defenses can arise during the course of a prosecution, it is extremely important to seek the assistance of an experienced and well-seasoned New York criminal defense attorney.

Article provided by Law Office of Eric M. Sears, P.C.
Visit us at www.ericmsearslaw.com