“Merely viewing web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law,” Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges in the New York Court of Appeals. “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.”
According to Judge Victoria A. Graffeo, “the purposeful viewing of child pornography on the internet is now legal in New York.”
This ruling came after an appeal from College Professor James Kent of Marist College in Poughkeepsie, N.Y. In the case of Professor Kent, hundreds of images of child pornography were found both in the cache of the web browser and in saved work folders on his campus work computer. The New York Court of Appeals found Kent guilty for the files saved to his hard drive, but not guilty for the cache stored in the web browser.
Professor Kent maintains his innocence, arguing that someone else at the University must have put the images onto his computer.
The difficulty with the ruling came about from the existence of the cache files. Every time a web page is accessed, the browser caches (i.e., stores) the information on the webpage. The browser then doesn’t have to newly retrieve files (including any images on the page) from the remote web site each time the back or forward buttons are clicked.
“To demonstrate possession of the images in the cache, the defendant’s conduct must exceed mere viewing,” Ciparick added that “the mere existence of an image automatically stored in a cache” isn’t enough evidence.
Clearly any image stored in the cache of a web browser was accessed and viewed by someone. Judge Ciparick believes viewing pornographic images of children on the web is fine as long as the defendant does not keep the images by either printing them or saving them to the hard drive.
This is a dangerous ruling. According to studies through the Mayo clinic: reports indicate that 30% to 80% of individuals who viewed child pornography and 76% of individuals who were arrested for Internet child pornography had molested a child. The study doesn’t clarify whether the perpetrator progressed from viewing child pornography to molesting a child or the other way around. That does not justify legalizing the viewing of child pornography on the internet. These New York judges obviously care more for the sexual gratification of some then they do for the safety of children.
UPDATE: