Looking at child porn on the internet is legal in New York, the Court of Appeals has ruled.
James D Kent, an assistant professor of public administration at Marist College in Poughkeepsie, was caught when he requested a virus scan because his machine was running slowly.
Hundreds of pictures were revealed, many of children just seven or eight years old. Kent has maintained since that the images must have been placed there by somebody else.
He was convicted nearly three years ago on two counts of promoting a sexual performance of a child and dozens of counts of possession of child pornography. However, the six appeal judges have now dismissed one count of each offense.
The decision hinges on what actually counts as possession of such images. And, ruled the judges, simply looking at images isn’t enough.
“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 panel’s ruling.
“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.”
While the images were in Kent’s PC’s cache, this wasn’t enough to count as possession – especially as the prosecution failed to prove that Kent even knew his browser had a cache in the first place.
The case highlights just how difficult it is for the law to keep up with technology. The judges made it clear that they were by no means in favor of child pornography, but that their hands were tied.
