Elizabeth Yore was special counsel to Harpo Inc., Oprah Winfrey’s production company. She also served as child protection counsel on a range of matters, including at the Oprah Winfrey Leadership Academy in South Africa. Yore was general counsel of the Illinois Department of Children and Family Services. She served as the general counsel and director of the International Division of the National Center for Missing and Exploited Children in Virginia. She consults on child protection issues with corporations, non profits and international child abuse cases and issues.
“For children are innocent and love justice, while most of us are wicked and naturally prefer mercy.” G.K. Chesterton.
To borrow from Chesterton, innocent children are denied justice in the recent New York Court of Appeals decision of People v. Kent. No. 70, N.Y. Ct. App., May 8, 2012. Child pornography is the photographic record of the sexual abuse of a child. It is an outrage that the highest court in New York has decriminalized the act of viewing of child pornography on a computer.
The New York Court of Appeals found that simply viewing child pornography online is not a crime. The court decriminalized the purposeful viewing of child pornography on the Internet absent an affirmative act. One wonders if the justices viewed the gut wrenching graphic evidence of child rape and molestation. If not, would they have rendered a different decision?
Beyond the trauma of actual sexual abuse, children suffer unimaginable shame and pain knowing that a permanent photograph or video of their sexual abuse circulates among millions on the Internet. The child is revictimized each time their photos are viewed on the Internet. The victimization is memorialized permanently in cyberspace. It can never be retrieved.
The issue for the court was whether evidence proffered at defendant’s trial was legally sufficient to support his convictions. The court must consider, among other issues, the evidentiary significance of “cache files,” or temporary internet files automatically created and stored on a defendant’s hard drive, and defendant’s awareness of the presence of such files. The court concluded that where the evidence failed to show that defendant had such awareness of the presence of such files, the people have not met their burden of demonstrating defendant’s knowing procurement or possession of those files. The court further concluded that merely viewing Web images of child pornography did not, absent other proof, constitute either possession or procurement within the meaning of the New York Penal Law. The court upheld the convictions for those child pornography images that were downloaded into files, but not the child sex abuse images residing in his temporary internet files.
The rationale of the court defies logic. The defendant’s computer was flush with over 30,000 downloaded child sex abuse images. Like a typical child pornographer, these photos were stored, categorized and named in folders and subfolders on the defendant’s computer. The defendant was obviously a highly active and skilled purveyor of child pornography. For the court to suggest that since some child pornography photos were not actively downloaded and, hence did not fit the meaning of possession and awareness in the New York Penal Code, is the height of naiveté about the behavior of pedophiles and their collecting behavior.
This case involves your typical child pornography possession criminal case: an educated man (a college professor), with a huge collection of child sex abuse images that were stored in folders, categorized and named. During the trial, the defendant typically pled the worn-out defenses, such as some stranger must have used his computer and/or he was collecting the child porn for a research project.
The New York legislature is already drafting a legislative fix to address the devastating consequences of the court’s ruling. Nevertheless, this decision raises the troubling specter of the judiciary dealing with the growing complexity of computer technology coupled with the sophistication and duplicity of Internet child predators.
Why is trading and possessing child pornography such a vile crime?
These pictures are crime scene photos of child sex abuse. They are violent photos involving younger and younger children, including infants. The crime is forever enshrined on the Internet as it is sought, traded and viewed millions of times by child predators. The child can never reclaim either his innocence or the image. It is irrelevant to the child victim whether the photo is downloaded or saved. The innocent child victims are further traumatized and violated because their abuse is viewed by a stranger who delights in viewing the pain of the molestation. Tragically, the appellate court legalized the viewing of child rape and gave child predators license to view child molestations.
What are the consequences of decriminalizing the viewing of child pornography photos?
Here’s a window into the dark and disgusting world of child predators: Thanks to the Kent decision, it is now open season for traders of child pornography. The Kent ruling has been sent, forwarded and read by millions of pedophiles and hailed as the long awaited breakthrough. The pedophile message boards are inundated with gleeful discussions about the wisdom and brilliance of the New York appellate court. Victory is declared by the child predators and a new deluge of photos of children being raped is flooding the Internet.
Let’s hope the New York legislature moves quickly to address the court’s dangerous precedent. In case everyone has forgotten, the children need justice and quickly.