The Debate Continues: Is the Mere Viewing of Child Pornography Illegal?

New York became the latest state to grapple with the question of whether simply “viewing” child pornography is illegal. In the wake of a controversial state court decision which held that the act of “viewing” child pornography is not a crime, the New York legislature has proposed a new bill that would make viewing child porn illegal.

The state is the latest of many, including Georgia and Florida, whose legislators or courts have addressed the legality of viewing child pornography when it is unintentionally downloaded or unknowingly possessed by the accused.

In The People v. Kent, the New York Court of Appeals (the state’s highest court) held that merely viewing child pornography was not a crime. Kent, a professor of public administration at a small college in Dutchess County, New York, was arrested after IT workers found thousands of pornographic images on his computer depicting prepubescent girls in sexually explicit situations. Kent claimed that he was researching a paper on child pornography but became worried about the legal consequences of viewing the files so he attempted to delete them. However, the files remained stored in the “cache” or “temporary internet files” of his office computer’s hard drive.

The Court held that merely viewing web images of child pornography did not constitute “possession” or “procurement” of child pornography under New York law. To convict Kent, the state must also prove that he “knowingly possessed” the images by printing, downloading or saving them.

In response to the decision, the New York legislature acted within hours to close what they viewed as a “loophole” in the law. Under one of two proposed bills, it would be illegal in New York to simply view child pornography – through streaming video or cloud-based storage – even if images are never saved, downloaded or printed.

The debate mirrors a recent controversy in Georgia where Courts considered what constitutes “possession” of child pornography in the internet age. In 2007, the Georgia Court of Appeals similarly held in State v. Barton, that evidence that proves only that child pornography was viewed by the accused does not constitute a crime under Georgia law.

Noting the impossibility of filtering out images of underage children when sharing or viewing legal pornography on adult pornography sites, and the automatic files storage that occurs when an unwanted image of child porn is accidentally viewed but deleted, the Court held that more must be proven in order to constitute possession.

As criminal defense attorneys who specialize in defending individuals accused of child pornography offenses, we are keeping a close eye on the Georgia legislature’s response to these recent developments. For more information on what constitutes possession of child pornography in Georgia, please visit our posts on Georgia Sex Offense Law.

To learn about we defend individuals accused of possessing child pornography in Georgia, visit our Child Pornography or Our Cases pages.