Viewing child pornography on the web, absent of other actions, is not a crime in New York according to the state's highest court. The ruling is connected to a case involving a former Marist professor, already serving time for possession of child porn. YNN's Alexandra Weishaupt explains.
POUGHKEEPSIE, N.Y. -- "Merely viewing images of child pornography on the web without doing anything else, which is downloading, printing or saving the image, is not possessing or procuring child pornography in New York State," said Legal Analyst Paul DerOhannesian.
And is, therefore, not considered a crime.
On Tuesday, the New York State Court of Appeals reversed two of the 143 counts of possession of child porn for which former Marist College professor James Kent was convicted of in 2009.
"The court of appeals suggests you need something more than looking. You have to download it. You have to do something to take an affirmative step," said attorney Nathan Dershowitz.
And Kent claims that while he had saved many of the files in question, there were others that he only viewed.
"The only evidence that he ever possessed some of these pictures is that he deleted them and they were in a part of the computer that he couldn’t get to," said Dershowitz.
That part of Kent’s computer known as the cache function, where images are automatically stored, something he said he was completely unaware of. And the court ruled that the mere existence of an image automatically stored in a cache isn't enough to demonstrate ownership because one cannot knowingly possess something he or she does not know exists.
Dershowitz says the problem is that legislation is not keeping up with technology, arguing that the federal statute outlawing child porn doesn't mention the legal standing of images stored in a cache.
"Legislature has to make a determination and they have to have hearings and decide what we as a society as reflected through our elected officials is what we want to make legal and what we don’t want to make legal," said Dershowitz.
But DerOhannesian says the ruling does not necessarily have a huge impact on future cases because most people who are interested in child porn are more than likely going to download it, print it or save it. And he says although Kent's charges were modified, he is still convicted on 141 counts resting on other evidence, including a folder that stored around 13,000 images of girls estimated to be eight- or nine-years-old.
“This individual didn’t walk free because like many individuals, he did access, save and put those images on his computer," said DerOhannesian.