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May 16, 2012

NY legislature, responding to contrary court ruling, quick to make CP viewing criminal

As reported in this new Reuters story, headlined "N.Y. Senate passes bill to make viewing child porn on Internet a crime," legislatures have a way of moving fast when it comes to going after people who view the wrong kind of porn. Here are the details:

The New York State Senate on Tuesday passed legislation to make it a crime to view child pornography on the Internet, as lawmakers rushed to close a loophole opened by a state appeals court just a week earlier.

State law currently prohibits the possession and promotion of child pornography. But a May 8 ruling by the New York Court of Appeals held that viewing child pornography on the Internet without taking further action such as printing or saving files does not necessarily constitute possession.

The ruling caused an instant furor among state lawmakers, who are acting with unusual speed to pass corrective legislation.

The bill passed by the Senate on Tuesday would make it a felony to "knowingly access with intent to view any obscene performance which includes sexual conduct by a child less than sixteen years of age."...

About 15 states have criminalized the viewing of child pornography, many of them in response to court decisions, according to the National Center for Missing and Exploited Children.

May 16, 2012 at 09:28 AM | Permalink

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Comments

While I agree with the outcome, I can't help but be a little amused at how very quickly legislatures can move when the issue is sex.

Though there's an interesting issue of federalism here, isn't there? I mean, in NY state it would be a crime to view an image of someone under the age of 16, but not 16 or over (as I'm guessing that is the age of consent in NY). Yet, under federal law, it would be a crime to view and image of anyone between the ages of 16 and 18, would it not?

Practically I guess that would make little difference as the feds are going gangbusters on CP prosecutions and also that a lot of the time the images seen in CP prosecutions are significantly younger than that, but it seems like an interesting sort of issue to me nonetheless.

Posted by: Guy | May 16, 2012 10:03:24 AM

"I mean, in NY state it would be a crime to view an image of someone under the age of 16, but not 16 or over (as I'm guessing that is the age of consent in NY). "

Sure, it would be illogical to criminalize possession of images of 16 and under but not sexual conduct, but would it still pass legal review?

Posted by: anon | May 16, 2012 10:18:53 AM

I'm described as a damn tough prosecutor. No question that chhild porn. is awful stuff; and those who make it should be maxed out. Fine. Those who possess it by downloading it should also be punished for creating a market. So far so good. But is anyone else troubled by criminalizing the "viewing" of it? Child porn, unfortunately is just a few clikcs away on any computer. Is it too much like "1984" to say "you saw it; you go to prison."? I mean criminalizing what I see? Are we going a little over the top here?

Posted by: Texas prosecutor | May 16, 2012 3:03:15 PM

The bill is for "knowingly access with intent to view" so the fear of accidental viewing seems to be addressed.

The issue isn't "sex" specifically; it is children.

I'm not sure what the "federalism" issue is here. States and the feds can have different standards here, such as it can be for drug possession too.

Posted by: Joe | May 16, 2012 5:11:57 PM

Joe:

Actually, it's not just children. It's sex AND children, so hold on to your hats.

And the federalism issue is similar to what's going on in California with medical marijuana vs the feds and the controlled substances act. I know that states and feds are allowed to have different standards, and that behavior might be lawful at the state level but unlawful at the federal level. Nonetheless, it was just a discrepancy that struck me as interesting and thought I'd comment on it.

Cheers

Posted by: Guy | May 16, 2012 5:40:21 PM

Guy ... the state did not act quickly because of 'sex' (e.g., obscenity involving adults) but "knowingly access with intent to view any obscene performance which includes sexual conduct by A CHILD less than sixteen years of age."

You may comment on anything of interest but I don't see the connection myself. CA legalizes certain conduct under state law & the feds inhibit this by still making it illegal. Since arguably it is purely local, it is a federalist concern. I'm not sure the comparison here.

Posted by: Joe | May 16, 2012 6:55:27 PM

"might be lawful at the state level but unlawful at the federal level"

This occurs a lot of times -- federal law makes various things illegal that a specific state might not. As I said, whatever interests you is fine, but the fact state and federal law over this or some other criminal matter does not purely overlap (the feds making more or less illegal) is pretty common.

The marijuana issue is of special concern because many think the feds shouldn't have the power over mere possession of medicinal marijuana or oppose it on policy grounds. I don't see a similar controversy here.

Posted by: Joe | May 16, 2012 7:01:52 PM

personaly i think it was a no-brainer. but the devil is in the details. The big problem is the word "wilful" just who decides what is or is NOT wilful! Sorry i don't trust DA's to make that call.

as for the stupidity about state and fed's

where the state says it's legal but the feds say it isn't!

well IF the Fed is primary! then each and every state that has something on the books the feds say is illega should be removed IMMEDIATLY and AUTOMATICALLY!

Failure should bring CRIMNAL CHARGES against the state actors!

Posted by: rodsmith | May 16, 2012 11:08:27 PM

"The New York State Senate on Tuesday passed legislation to make it a crime to view child pornography on the Internet, as lawmakers rushed to close a loophole opened by a state appeals court just a week earlier."

Didn't the New York court just rule that the statute, as written, did not prohibit accessing child pornography? Is it even appropriate to call it a "loophole"? It sounds like it was just something that wasn't illegal. Now it is illegal. But it's not a loophole, and it wasn't invented by the court.

Posted by: C.E. | May 16, 2012 11:34:44 PM

Joe:

I'm pretty sure that SCOTUS squarely confronted that issue in Raich, IIRC, and came to the conclusion that there are few limitations on the commerce clause at least insofar as the federal criminal law is concerned.

As far as medical marijuana goes, the reason I was using it as an analogue was because it's another example of behavior that is legal under state law and illegal under federal law -- as would viewing a pornographic image be of a 17 year old girl in NY. I'm not saying that the underlying policy motivations are the same. The reason why commerce is implicated in marijuana is because how else are you going to try to regulate intrastate activity? Whereas, when it comes to pornography, it's almost always on the computer which means instant federal jurisdiction.

Posted by: Guy | May 17, 2012 2:59:41 AM

so what Guy the SCOTUS once said slavery was legal too. This is also the same bunch of retards that said it's perfectly legal for the state to STEAL my property and give it ot another PRIVATE CITIZEN!

this could just be another little SCREW UP!

Posted by: rodsmith | May 19, 2012 9:21:04 PM

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