York Court of Appeals rules viewing online child porn not a crime

The New York Court of Appeals ruled recently that viewing child pornography online is not a crime. The decision came after Marist College professor James D. Kent was sentenced to prison after more than 100 images of child pornography were found on his computer's cache (each time someone views a photo online, a copy of the image is automatically saved in the memory cache, which is how photos are retrieved and how they can be tracked).

The court's ruling attempts to distinguish between individuals who view an image of child pornography online against those who actively download and store such images. And in this case, it was ruled that a computer's image cache is not the same as actively choosing to download and save an image.

This decision creates a giant loophole for Internet pornographers: in New York, the courts have essentially said it's legal to view child pornography as long as you don't download it.

What the court has failed to realize is that while the possession of child pornography has existed through the ages, it remained mostly underground until the advent of the Internet in the 1980s which dramatically changed the scale and nature of the proliferation of child pornography. The Internet provides a vehicle for networking, trading and communicating with like-minded individuals with virtual anonymity and little concern about apprehension. Those for whom child pornography is a way of life can now trade images and even abuse children "live" while others watch via the Internet. The amount of material available has increased manifold, the distribution is efficient, and the accessibility practically instant. Law enforcement officials tell us thousands and possibly millions of individuals around the world can access child pornography in seconds. Today, child pornography has become a multi-billion dollar commercial enterprise and is among the fastest growing businesses on the Internet.

While the exact number of websites dedicated to child pornography is difficult to determine because sites exist for a brief amount of time and are replaced with new ones in different locations to take their place every day, there has been an increase in the number of reports to law enforcement of Internet child pornography with victims becoming younger and the images becoming more graphic and violent. The Department of Justice estimates that at any one time there are more than one million pornographic images of children on the Internet and over 200 new images are posted daily with the majority of incidents involving children six to 11-years-old. It is also estimated that some child pornography websites receive over one million visits in a single month.

Let's not forget that studies show that viewing such images is often the first step in the timeline that eventually leads to the sexual victimization of a child.

It's also important to realize that the possession of child pornography is not a victimless crime. Every time one of these images is traded, printed, or downloaded the child depicted in the image is re-victimized. Studies from the National Center of Missing and Exploited Children show that in addition to any physical injuries they can suffer in the course of their molestation, child victims can also experience depression, withdrawal, anger and other psychological disorders. Such effects may continue into adulthood.

Child victims also frequently experience feelings of guilt and responsibility for the abuse and betrayal, a sense of powerlessness, and feelings of worthlessness and low self-esteem.

So while the court turned its back on these children, let's hope that the New York legislature won't do the same. It will now be up to them to determine what the appropriate response should be to those "simply" viewing images of child pornography without actually storing them. Currently, New York has no laws deeming such action criminal.