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.
