US court withdraws 'legal child porn' opinion

Antics over semantics

A US court has withdrawn its controversial recent opinion that viewing child pornography is legal as long as it is not intentionally saved. The judge had said there was ambiguity in the law over what constitutes "knowing possession" of material.

The Superior Court of Pennsylvania has withdrawn the opinion issued in November of last year by Judge Richard Klein. The court has now granted a prosecution request for a hearing of the full court in the case.

Defendant Anthony Diodoro admitted viewing 370 images of child pornography on his computer. The images were on websites which he intentionally visited for that purpose, said Klein's original opinion. Klein ruled that the law related to possession and not viewing, and that there was no evidence that Diodoro sought to retain the images. Pennsylvania state law makes a crime of "knowing possession" of such images.

"We note that it is well within the power of the Legislature to criminalize the act of viewing child pornography on a web site without saving the image," Klein said in his opinion. "The language used, however, is simply 'possession.' Because this is a penal statute with an ambiguous term when it comes to computer technology, it must be construed strictly and in favour of the defendant."

Klein had said that although the pictures were saved in the cache of Diodoro's computer, he could not have been expected to know that and could not be said to have knowingly downloaded them.

Klein said that the accused had a right to advanced notice that certain acts are illegal. "A defendant must have fair notice that his conduct is criminal," he said. "Because of the ambiguity, sufficient notice was not provided here. For this reason, we are constrained to leave it to the Legislature to clarify the language if it intends to make the mere 'viewing' of child pornography a crime."

A District Attorney argued, though, that the Crimes and Offences Code outlaws the control of any kind of media to view pictures of people under 18 engaged in sexual acts. He argued that using a computer is illegal under that Code.

The Court has now withdrawn Klein's statement and granted the prosecution the right to an en banc hearing, which is a hearing of the full court. "The Opinion by Judge Klein has been withdrawn," said the court's website. "The Petition for Reargument was granted on January 19, 2006."

Such a ruling could not given in the UK. The Protection of Children Act criminalises the viewing of child pornography irrespective of whether or not images are saved on a computer.

See: The original judgment (8-page / 84KB PDF)

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