As technologies develop, the law often struggles to keep pace. This is particularly true in the area of laws governing child pornography. Recently, the Pennsylvania laws regarding child pornography have undergone critical changes, in an attempt to respond to changes in technology.
Previously under Pennsylvania's Sexual Abuse of Children legislation, 18 PA CSA § 6312, it was illegal to "knowingly possess or control" materials depicting a child under the age of 18 engaging in prohibited sexual acts. However, the ephemeral nature of images viewed on the Internet leaves some questions regarding the nature of possession and control. Accordingly, the General Assembly amended 18 PA CSA § 6312, explicitly making intentional viewing of child pornography a punishable offense.
Commonwealth v. Diodoro
The amendments to this law largely came in response to the Diodoro case, which the Pennsylvania Supreme Court decided this past May. In 2003, police searched Anthony Diodoro's computer and found evidence that Diodoro had viewed pornographic images of children in the cache files on the computer's hard drive. However, Diodoro did not download or save the images to his computer. He was charged and convicted of sexual abuse of children and criminal use of a communication facility.
Diodoro appealed his conviction on the grounds that merely viewing pornographic images did not rise to the level of possession and control of child pornography, as required by the law. His conviction was initially overturned by a panel of the Superior Court. However, upon rehearing, the court reversed its decision and upheld Diodoro's conviction, finding that by searching the Internet for these images and using his mouse to open the images, he exercised "control" over the pornography, as required under the statute.
Diodoro then appealed to the Pennsylvania Supreme Court. In his defense, Diodoro argued that it was unfair to punish him for viewing the materials when the law did not explicitly prohibit this activity and that he and others had no notice that this behavior was prohibited by the law.
The Pennsylvania Supreme court was not swayed by his arguments and ultimately affirmed his conviction. According to the Court, by accessing and viewing the pornographic images on the Internet, Diodoro exercised sufficient control over the pornography to support a conviction for sexual abuse of children. The court further stated that any other result would create a loophole in the state's laws that would permit offenders who merely viewed child pornography to escape prosecution for their crimes. The court found that the very act of viewing these images victimizes the children depicted in the images and the state has a compelling interest to protect children from these acts.
The General Assembly Broadens the Scope of Child Pornography Statute
To clarify the Diodoro opinion, the Pennsylvania General Assembly passed legislation this July to amend the state's Sexual Abuse of Children law. Under the changes to the law, anyone who possesses, controls or intentionally views child pornography may be charged with sexual abuse of a child.
The statute defines "intentionally viewed" as "the deliberate, purposeful, voluntary viewing" of child pornography. The law also provides an exception from prosecution for anyone who accidently or inadvertently viewed the pornographic material. For example, someone who visited a site believing it contained adult pornography or someone who was sent a link to a site believing it contained non-pornographic images would not be in violation of the law.
The House of Representatives attempted to pass a similar law last year, but the measure failed to obtain the necessary votes. At the time, some legislators were concerned about the definition of the term "intentionally viewed" and the protections available to those who did not choose to view the material.
Governor Edward G. Rendell signed House Bill 89 into law on July 14, 2009.
Defending Against Child Pornography Charges
Across the country, child pornography laws are becoming increasingly draconian and the punishments are becoming increasingly severe. It is unclear how the new law will protect those who have been wrongly accused of intentionally viewing child pornography. For example, what happens when a computer owner allows a friend to use the computer, and the friend intentionally accesses prohibited materials? It also is unclear how courts will determine whether a person has intentionally viewed the content or mistakenly viewed the content. How many images are necessary to prove intentional viewing rather than accidental viewing?
For anyone who is under investigation or who has been charged with violating child pornography laws, it is important to contact an experienced criminal defense lawyer as soon as possible. A person convicted of charges relating to child pornography may be required to spend substantial time in prison, pay fines and register as a sex offender.
These charges will not go away on their own. It is important to work with an attorney knowledgeable in both Pennsylvania and Federal child pornography laws, who can address the technical aspects of the charge and build an effective defense for your case.