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Acquittal of US man who viewed abuse images overturned

Cached images were in his possession

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A man who admitted using his computer to view pornographic images of child abuse cannot go free just because he did not deliberately save the images, a US court has said. The ruling overturns a previous acquittal of the man.

A full nine-judge hearing of the Pennsylvania Superior Court has said that it was no defence for the man to claim that he did not save the images on purpose. The decision overturns a previous ruling of a panel of the Superior Court.

Anthony Diodoro had his computer seized by police in 2003. A police search found 370 pornographic images, 30 of which were known to be of child abuse. He admitted viewing the images and was found guilty by a jury of sexual abuse of children for possessing child abuse images and of criminal use of a communication facility in 2005.

Diodoro was sentenced to between nine and 23 months in prison, but that sentence was overturned by a three judge panel of the Superior Court in 2006. Led by Richard Klein, that panel found that Diodoro did not "possess" the images because their only appearance on his computer was in the cache of his web browser.

Pennsylvania state law says that someone must have "knowing possession" of images of child abuse for it to be a crime. The court found that there was no evidence that Diodoro had chosen to store the images on his computer.

"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," wrote Klein."A defendant must have fair notice that his conduct is criminal. Because of the ambiguity, sufficient notice was not provided here. For this reason, we are constrained to reverse [a previous decision] and leave it to the Legislature to clarify the language if it intends to make the mere 'viewing' of child pornography a crime."

The full nine person hearing of the Superior Court found that Diodoro controlled the material through his web browsing, and that this satisfies the requirements of the law.

Judge Correale Stevens said that Pennsylvania's Crimes and Offenses Code outlawing the possession of child pornographic abuse images punishes anyone who possesses or controls images.

"[Diodoro's] actions of operating the computer mouse, locating the websites, opening the sites, displaying the images on his computer screen, and then closing the sites were affirmative steps and corroborated his interest and intent to exercise influence over, and, thereby, control over the child pornography," Stevens said.

Six of the other judges backed Stevens' view, which prevailed. Two disagreed, including Klein, who wrote a dissenting opinion, stressing that it was not the role of the court to write the law, only to interpret that which already existed.

"If the Legislature fails to keep up with modern technology, it is not our responsibility to correct its oversight," he said.

In the UK the Protection of Children Act can be used to convict someone found to be viewing images of child abuse, regardless of whether or not they downloaded the files.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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