The Superior Court of Pennsylvania has withdrawn the opinion
issued in November of last year by Judge Richard Klein. The court
has now granted a prosecution request for a hearing of the full
court in the case.
Defendant Anthony Diodoro admitted viewing 370 images of child
pornography on his computer. The images were on websites which he
intentionally visited for that purpose, said Klein's original
opinion. Klein ruled that the law related to possession and not
viewing, and that there was no evidence that Diodoro sought to
retain the images. Pennsylvania state law makes a crime of "knowing
possession" of such images.
"We note that it is well within the power of the Legislature to
criminalize the act of viewing child pornography on a web site
without saving the image," Klein said in his opinion. "The language
used, however, is simply 'possession.' 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."
Klein had said that although the pictures were saved in the
cache of Diodoro's computer, he could not have been expected to
know that and could not be said to have knowingly downloaded
them.
Klein said that the accused had a right to advanced notice that
certain acts are illegal. "A defendant must have fair notice that
his conduct is criminal," he said. "Because of the ambiguity,
sufficient notice was not provided here. For this reason, we are
constrained to leave it to the Legislature to clarify the language
if it intends to make the mere 'viewing' of child pornography a
crime."
A District Attorney argued, though, that the Crimes and Offences
Code outlaws the control of any kind of media to view pictures of
people under 18 engaged in sexual acts. He argued that using a
computer is illegal under that Code.
The Court has now withdrawn Klein's statement and granted the
prosecution the right to an en banc hearing, which is a hearing of
the full court. "The Opinion by Judge Klein has been withdrawn,"
said the court's website. "The Petition for Reargument was granted
on January 19, 2006."
Such a ruling could not given in the UK. The Protection of
Children Act criminalises the viewing of child pornography
irrespective of whether or not images are saved on a
computer.
