Viewing Child Porn - Court Rules Legal

[MiM]

I think we can assume that context would be taken into account. I remember the case of Pete Townsend (of the Who) who used the excuse that he was researching the issue as he was writing his autobiography and some dodgy pictures where found on a computer by a service engineer. As a child he was abused as I recall and he said was 'exploring' the issue. It doesn't sound very plausible, but he wasn't prosecuted.

Having law enforcement take context into account in this scenario is a recipe for arbitrary law enforcement. I would imagine that a random bloke, not known to the police, and without hundreds of thousands of pounds/dollars to spend on a superior legal defense, would not receive as great a benefit of "context" as Mr. Townsend received.

Then on the other hand, the police, the judge and the jury probably has to see the pictures (or at least some of them), to be able to judge if its kiddie porn at all. Should they all be prosecuted next, if context cannot be taken into acount?

[Rum]

I think we can assume that context would be taken into account. I remember the case of Pete Townsend (of the Who) who used the excuse that he was researching the issue as he was writing his autobiography and some dodgy pictures where found on a computer by a service engineer. As a child he was abused as I recall and he said was 'exploring' the issue. It doesn't sound very plausible, but he wasn't prosecuted.

Having law enforcement take context into account in this scenario is a recipe for arbitrary law enforcement. I would imagine that a random bloke, not known to the police, and without hundreds of thousands of pounds/dollars to spend on a superior legal defense, would not receive as great a benefit of "context" as Mr. Townsend received.

Not so. Here the CPS (criminal; prosecution service), not the police weigh up the evidence here and look at mitigation, public interest and so on. I used to be part of that process when I worked with young offenders in the 80s and it is pretty impartial.

[Coito ergo sum]

I think we can assume that context would be taken into account. I remember the case of Pete Townsend (of the Who) who used the excuse that he was researching the issue as he was writing his autobiography and some dodgy pictures where found on a computer by a service engineer. As a child he was abused as I recall and he said was 'exploring' the issue. It doesn't sound very plausible, but he wasn't prosecuted.

Having law enforcement take context into account in this scenario is a recipe for arbitrary law enforcement. I would imagine that a random bloke, not known to the police, and without hundreds of thousands of pounds/dollars to spend on a superior legal defense, would not receive as great a benefit of "context" as Mr. Townsend received.

Then on the other hand, the police, the judge and the jury probably has to see the pictures (or at least some of them), to be able to judge if its kiddie porn at all. Should they all be prosecuted next, if context cannot be taken into acount?

Whatever is to be taken into account needs to be written into the law. If the law could have exceptions.

I suppose one could have an exception that if the viewing was "accidentai" then that could be taken into account. That wouldn't help Mr. Townsend. And, if the law wrote in that you could view it to do research, then it would be pretty easy to have a book in process about child pornography to serve as cover.

[Svartalf]

I think we can assume that context would be taken into account. I remember the case of Pete Townsend (of the Who) who used the excuse that he was researching the issue as he was writing his autobiography and some dodgy pictures where found on a computer by a service engineer. As a child he was abused as I recall and he said was 'exploring' the issue. It doesn't sound very plausible, but he wasn't prosecuted.

Having law enforcement take context into account in this scenario is a recipe for arbitrary law enforcement. I would imagine that a random bloke, not known to the police, and without hundreds of thousands of pounds/dollars to spend on a superior legal defense, would not receive as great a benefit of "context" as Mr. Townsend received.

Not so. Here the CPS (criminal; prosecution service), not the police weigh up the evidence here and look at mitigation, public interest and so on. I used to be part of that process when I worked with young offenders in the 80s and it is pretty impartial.

Prosecutors in the US seem to be anything BUT impartial...

[Svartalf]

I think we can assume that context would be taken into account. I remember the case of Pete Townsend (of the Who) who used the excuse that he was researching the issue as he was writing his autobiography and some dodgy pictures where found on a computer by a service engineer. As a child he was abused as I recall and he said was 'exploring' the issue. It doesn't sound very plausible, but he wasn't prosecuted.

Having law enforcement take context into account in this scenario is a recipe for arbitrary law enforcement. I would imagine that a random bloke, not known to the police, and without hundreds of thousands of pounds/dollars to spend on a superior legal defense, would not receive as great a benefit of "context" as Mr. Townsend received.

Then on the other hand, the police, the judge and the jury probably has to see the pictures (or at least some of them), to be able to judge if its kiddie porn at all. Should they all be prosecuted next, if context cannot be taken into acount?

Whatever is to be taken into account needs to be written into the law. If the law could have exceptions.

I suppose one could have an exception that if the viewing was "accidentai" then that could be taken into account. That wouldn't help Mr. Townsend. And, if the law wrote in that you could view it to do research, then it would be pretty easy to have a book in process about child pornography to serve as cover.

If everything has to be written into the law, why don't you shift from common law to code law?
Heck, even here we have to study case law that made history and changed the way certain laws were interpreted, or created new legal concepts.

[Hermit]

Well, with this kind of law, it either has to be legal to view it or it isn't. Merely viewing means that you did not help produce it, you did not buy or sell it, you did not participate in it, etc., you just looked at it.

I would think not all of the 30,000 files depicting child pornography were downloaded for free. If I am correct, the accused was materially supporting the sexual abuse of children.

[Seth]

I agree with CES and FBM. Technically, if you click on a link and child porn pops up you've "downloaded" that image because it was sent from the server to your computer. Or, if a piece of junk email contains a child porn attachment, merely by downloading your email you are "downloading and saving" the contraband.

This obviously means that innocent persons can technically be charged with possession of child porn even though they didn't even know it was on their computer because they deleted the email but not the saved attachment inadvertently.

The same is true of legal porn surfing on the web. It is incredibly easy to get clickjacked or redirected to illegal child porn while attempting to engage in legal porn surfing.

Any law regarding possession of child porn MUST have a "mens rea" element that requires evidence of knowing acts and deliberation in the acquisition and storage of such contraband. It's not enough that the images are in a cache or in a download directory because some programs automatically save things in such places. And it's particularly egregious that in the case mentioned the contraband was found after what appears to be an illegal search of the deleted files on the computer. While their organization into distinct directories is highly suspicious, the problem is that if one inadvertently downloads, or is sent contraband, and one deletes it right away in a legitimate attempt to obey the law, a search of deleted files might turn the images up and prosecutors could make the case that you were still "in possession" of the contraband despite your attempt to rid yourself of it.

As an aside, this is an excellent reason to always DOD wipe your hard drive's unused space and carefully search your drives for all images of any kind and review them to see if there's anything there that shouldn't be, particularly before taking your computer to a technician for servicing. If you can't do so because of a disk crash, you'd be better off taking the disk out and destroying it if you cannot diagnose and repair it yourself, if you're prone to porn surfing.

Moreover, there should be an evidenciary standard requiring that the prosecutor show that the defendant was the one who actually downloaded the contraband, and rebut the presumption of innocence that claiming someone else used the computer to access the contraband would provide.

Unless the prosecution can show that NO OTHER PERSON had access to the computer, either physically or through the computer being "zombified" by a virus or worm, reasonable doubt would remain as to whether the defendant did the proscribed deed or whether someone else did so either for their own gratification or in a deliberate attempt to implicate the defendant in a crime.

Because it is possible for someone to quite literally take over an unsecured computer attached to the Internet and use it for their own purposes, which might include the downloading and storage of child porn images completely unknown to an unsophisticated computer user who is lax with his security, I would argue that reasonable doubt always remains unless refuted by evidence that the individual charged actually pushed the keys that downloaded and stored the contraband.

A presumption of innocence means that the court must always view such possibilities in the light most favorable to the defendant, and that's what the court in this case did, because inadvertent "viewing" of contraband may be unavoidable while engaged in otherwise legal activities.

An analogy is the case of Traci Lords, who made a number of porn videos while she was a minor, unbeknownst to the producers, distributors or purchasers of the tapes. When it came out, the distributor's stocks were destroyed because they were contraband and some people went to jail even though Lords herself used false ID when applying for the job. Now, privately owned copies of those tapes are contraband as well, and even if someone never heard that the tape they lawfully purchased thinking it was legal porn is actually illegal child porn is technically guilty of possession of child porn. This puts innocent people in danger of criminal prosecution without any intent on their part to violate the law.

Unwanted or "chanced upon" child porn online is a huge problem and the injustice of prosecution someone for "merely viewing" something they expected to be legal materials is obvious and manifest. Some overzealous prosecutors who object to porn of all types, like the ones mentioned in the article, wish to capitalize on this risk to try to destroy the porn industry entirely by scaring customers away from legal porn because they might be prosecuted for inadvertently viewing child porn. That's just wrong.

[Coito ergo sum]

I think we can assume that context would be taken into account. I remember the case of Pete Townsend (of the Who) who used the excuse that he was researching the issue as he was writing his autobiography and some dodgy pictures where found on a computer by a service engineer. As a child he was abused as I recall and he said was 'exploring' the issue. It doesn't sound very plausible, but he wasn't prosecuted.

Having law enforcement take context into account in this scenario is a recipe for arbitrary law enforcement. I would imagine that a random bloke, not known to the police, and without hundreds of thousands of pounds/dollars to spend on a superior legal defense, would not receive as great a benefit of "context" as Mr. Townsend received.

Not so. Here the CPS (criminal; prosecution service), not the police weigh up the evidence here and look at mitigation, public interest and so on. I used to be part of that process when I worked with young offenders in the 80s and it is pretty impartial.

Prosecutors in the US seem to be anything BUT impartial...

They're job is to see that justice is done. They aren't "impartial" since they are paid by and represent the State. That is why defense attorneys are needed, because the evidence must be tested.

[Coito ergo sum]

I think we can assume that context would be taken into account. I remember the case of Pete Townsend (of the Who) who used the excuse that he was researching the issue as he was writing his autobiography and some dodgy pictures where found on a computer by a service engineer. As a child he was abused as I recall and he said was 'exploring' the issue. It doesn't sound very plausible, but he wasn't prosecuted.

Having law enforcement take context into account in this scenario is a recipe for arbitrary law enforcement. I would imagine that a random bloke, not known to the police, and without hundreds of thousands of pounds/dollars to spend on a superior legal defense, would not receive as great a benefit of "context" as Mr. Townsend received.

Then on the other hand, the police, the judge and the jury probably has to see the pictures (or at least some of them), to be able to judge if its kiddie porn at all. Should they all be prosecuted next, if context cannot be taken into acount?

Whatever is to be taken into account needs to be written into the law. If the law could have exceptions.

I suppose one could have an exception that if the viewing was "accidentai" then that could be taken into account. That wouldn't help Mr. Townsend. And, if the law wrote in that you could view it to do research, then it would be pretty easy to have a book in process about child pornography to serve as cover.

If everything has to be written into the law, why don't you shift from common law to code law?
Heck, even here we have to study case law that made history and changed the way certain laws were interpreted, or created new legal concepts.

Criminal laws in the US have to be specific enough so that you can understand what conduct is prohibited and what is not. You can't have the law be something that is up to arbitrary whim.

We have scads of statutes and codes covering criminal laws, and they can from time to time be struck down as unconstitutional if they are overly broad or vague.

Yes, we are a common law country, but where there is a statute the statute controls and the courts interpret the language of the statute.

[Audley Strange]

I may be wrong about this, but isn't the crime to have the images deliberately downloaded and stored on computers rather than to have merely and perhaps accidently "viewed" it?

[Robert_S]

I would like it if they had to show at least some degree of intent. I believe that a lot of sites make money per click so even if someone doesn't make a penny they're still facilitating, in some roundabout way, they porn they're viewing.

I've not had much at all in the way of browser hijacking since I've started using Adblock Plus. NoScript is also an available option for even tighter security and control.

[Svartalf]

I think we can assume that context would be taken into account. I remember the case of Pete Townsend (of the Who) who used the excuse that he was researching the issue as he was writing his autobiography and some dodgy pictures where found on a computer by a service engineer. As a child he was abused as I recall and he said was 'exploring' the issue. It doesn't sound very plausible, but he wasn't prosecuted.

Having law enforcement take context into account in this scenario is a recipe for arbitrary law enforcement. I would imagine that a random bloke, not known to the police, and without hundreds of thousands of pounds/dollars to spend on a superior legal defense, would not receive as great a benefit of "context" as Mr. Townsend received.

Not so. Here the CPS (criminal; prosecution service), not the police weigh up the evidence here and look at mitigation, public interest and so on. I used to be part of that process when I worked with young offenders in the 80s and it is pretty impartial.

Prosecutors in the US seem to be anything BUT impartial...

They're job is to see that justice is done. They aren't "impartial" since they are paid by and represent the State. That is why defense attorneys are needed, because the evidence must be tested.

That's the problem, it seems they regard their job as being getting a conviction against whomever they can get one fastest and with the least looking into the case, regardless of whether said person actually did it.
By comparison, French instruction judges are tasked with getting to the truth and investigating for both accusation and disculpation. They are also perfectly distinct from prosecutors.

[Svartalf]

If everything has to be written into the law, why don't you shift from common law to code law?
Heck, even here we have to study case law that made history and changed the way certain laws were interpreted, or created new legal concepts.

Criminal laws in the US have to be specific enough so that you can understand what conduct is prohibited and what is not. You can't have the law be something that is up to arbitrary whim.

We have scads of statutes and codes covering criminal laws, and they can from time to time be struck down as unconstitutional if they are overly broad or vague.

Yes, we are a common law country, but where there is a statute the statute controls and the courts interpret the language of the statute.

and maybe you heard that our sexual harassment law just got trashed for being too vague... funnily enough, both presidential candidates swore up and down that presenting an improved bill to parliament that would reinstate the crime, but be specific enough to suit the Constitution Council was their highest priority... I'll believe it if I hear of the project going up for vote before the year ends.

The reason you have a so called "common law" system, is because judges are specifically tasked with making proper interpretation of the law clear through their decisions, and why case law is the major source of reference your side while it is supposed to be only incidental this side. (though seriously, the way we handle Administrative law, that is conflicts between persons and the organs of government, has a definitely commmon law feel, with MUCH of the study in that field resting on landmark decisions of the Conseil d'Etat)

[Coito ergo sum]

If everything has to be written into the law, why don't you shift from common law to code law?
Heck, even here we have to study case law that made history and changed the way certain laws were interpreted, or created new legal concepts.

Criminal laws in the US have to be specific enough so that you can understand what conduct is prohibited and what is not. You can't have the law be something that is up to arbitrary whim.

We have scads of statutes and codes covering criminal laws, and they can from time to time be struck down as unconstitutional if they are overly broad or vague.

Yes, we are a common law country, but where there is a statute the statute controls and the courts interpret the language of the statute.

and maybe you heard that our sexual harassment law just got trashed for being too vague... funnily enough, both presidential candidates swore up and down that presenting an improved bill to parliament that would reinstate the crime, but be specific enough to suit the Constitution Council was their highest priority... I'll believe it if I hear of the project going up for vote before the year ends.

Sexual harassment is a civil action here in the US, which applies only certain contexts, like employment.

General "harassment" can be a crime, but it has to be very serious and repeated conduct, and not mere dirty language and sexual innuendo or come ons, and that sort of thing, and it doesn't have to be sexual in nature. This law is more in the vein of "stalking" than what we think of workplace sexual harassment.

[Svartalf]

and Here, it was a crime... until 10 days ago.
If only because a civil action was pretty limited in scope, not to mention the problem of the competent judge (since we do have special courts for workplace conflicts... but nobody would trust those to handle that kind of case).

and "general harassment" is something I've known in the work place... I might have made some dough from it if I'd known how to proceed gathering something that a court would have accepted as proof.