The New York Court of Appeals on Tuesday rendered a judgment that has left many in the society aghast. As per the decision of the Court, in a case against James D Kent, a college professor at Marist College, New York, viewing child pornography is not a crime in New York. In the case before the Court, Kent was charged on several grounds of promoting sexual performance by a minor and possessing a sexual performance by a minor. The Court dismissed two counts of possession against Kent who was convicted in 2009.
According to the Court, during the investigations it was found that the certain images found on Kent’s hard drive was not downloaded onto his system but was already present in the system cache. According to the Court, viewing of pornographic cached images not accompanied by any affirmative action such as printing and downloading, do not constitute “ possession and procurement” under the Penal law. The Court held that in respect of cached images, the Prosecution must in the least prove that the system owner was aware of the existence of such images. It is necessary to show that the perpetrated had control over the images. The Court held that it could not prove possession when the image was automatically downloaded onto user’s system without his consent.
Though the Court condemned child pornography, it insisted that it is the not the duty of the Court but that of the Legislation to criminalize and envisage maximum punishment in cases such as this. It seems in this case the Court has conveniently resorted, as a justification for its action, to the age old definition of its duties that merely requires within its ambit, the Court to interpret the law. As long as the law criminalizes only possession and procurement within its ambit, the Court explanation seems to suggest that its hands are tied.
Protection of children is a customary norm in all societies and the international community has for years condemned child pornography. The increase in instances of internet child pornography has made it an issue that requires immediate international attention. Internationally, the United Nations Convention on the Rights of the Child provides the basis for development of national laws regarding protection of children. Article 34 of the Convention envisages the protection of children against pornography and requires parties to make appropriate laws to achieve the same. However United States has only signed the same but has not ratified it. In the United States, the federal laws governing child pornography are the Children’s Internet Protection Act, 2000, Protection Act, 2003. Furthermore the Code of the United States in Title 18, Section 225, 2251A and 2260 criminalizes offences involving children including sexual exploitation of children, production and importing into United States material that sexually depicts minors etc. despite such federal laws, each State is empowered to enact its own laws.
The judgment by the New York Appeals Court has been severely criticized in all circles. The citizenry in New York is outraged by the decision of the Court and felt that the Court did not give proper importance to legislative intent and has called on the legislature to take immediate action.