By MATTHEW PATE
By MATTHEW PATE
Stephens Media
The shocker headline splashed across all media venues went something like: “New York court declares viewing child pornography not illegal.”
The substance of the decision is a bit more nuanced, but not by much. Even if one were to agree with the court’s reasoning, the latent consequences of its decision suspend all those who abhor child pornography between the proverbial perils of the Scylla and Charybdis.
The case concerns the conviction of 65-year-old James Kent, a former professor at Marist College whose computer was found to contain pornographic images in 2007. Kent asserts the images found on his computer were part of research he was doing on child pornography.
Kent was convicted of two counts of procuring and 134 counts of possessing a sexual performance by a child. He went to prison in 2009.
The Court of Appeals agreed that Kent was properly convicted because he had downloaded, saved and deleted 132 images. Even so, the majority said some images in his computer cache — temporary files automatically stored from sites he viewed — cannot be held against him under state law.
The argument centers on a couple of points: intentionality and procurement (possession). Did Kent intend for these images to appear on his computer screen? All sides seem to agree that he did. The debate over possession is much more fine grained.
According to the court’s ruling, “the consistent thread in these cases is the need to distinguish inadvertent or unintentional acquisition or possession of the offensive material from knowing or intentional procurement and possession.”
“Inadvertent possession” in this instance means that unbeknownst to Kent, the browser software stored a copy of each image he viewed on the hard drive in a cache folder. He possessed them, but he didn’t know it.
As the court instructs, the New York law requires that the act (in this case storage/possession) be done knowingly.
The court states, “We hold, however, that regardless of a defendant’s awareness of his computer’s cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant’s conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving.”
This reasoning flies in the face of something every single hormone-percolating teenage boy in the free world knows: Delete the darn cache files after you’re done looking at the forbidden thing.
The court further held, “… we agree that where no evidence shows defendant was aware of the presence of the cached files, such files cannot underlie a prosecution for promotion or possession. This is necessarily so because a defendant cannot knowingly acquire or possess that which he or she does not know exists …”
What if your pothead friend accidentally leaves his stash in your backseat. You get pulled over for a bad taillight. The officer sees the dope on the backseat. Even though you never ever partake, do you really think the cop or the jury will care (or believe) you didn’t know it “existed”?
Perhaps we could split the hair finer and discuss “constructive possession.” In an oversimplified telling, constructive possession means that a person does not have actual possession, but nonetheless has the power to control an asset. Having a safety deposit box key implies “constructive possession” of the contents of the box. In this sense, it’s pretty clear Kent had at least some form of possession of the images.
Under the court’s logic (which admittedly follows New York’s decades-old laws), you have to save the smut for later in order for it to be a crime. It is insufficient to merely experience the purulent titillation of their viewing. Accordingly, the court dismissed two of the counts against him.
“Fortunately,” Kent had intentionally stored other images (including video). He remains guilty of possessing those.
If there is any saving grace in this, it is that the federal statutes are much broader. They should be.