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Sexual Abuse of Children and the Intent Necessary to Convict

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The Supreme Court of PA held that accessing and viewing child pornography over the internet constituted "control" of such pornography under applicable Pennsylvania statute.

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By Attorney Elisabeth K.H. Pasqualini, Child Pornography Defense Lawyer, Harrisburg, PA

In Commonwealth v. Diodoro, 601 Pa. 6, 7, 970 A.2d 1100, 1100, 2009 Pa. LEXIS 946, 1 (Pa. 2009), the PA Supreme Court held that:

The verb control is commonly defined as: to exercise power or influence over. An individual manifests such knowing control of child pornography when he purposefully searches it out on the internet and intentionally views it on his computer. In such a situation, the viewer has affirmatively clicked on images of child pornography from different websites and the images are therefore purposefully on the computer screen before the viewer. Such conduct is clearly exercising power and/or influence over the separate images of child pornography because the viewer may, inter alia, manipulate, download, copy, print, save or e-mail the images. It is of no import whether an individual actually partakes in such conduct or lacks the intent to partake in such activity because intentionally seeking out child pornography and purposefully making it appear on the computer screen, for however long the defendant elects to view the image, itself constitutes knowing control. Control via a computer is little different from the control one exercises by viewing a book or a magazine, whether one purchases the tangible image or not.

But What If I Deleted the Images the Moment I Saw Them?

A computer's "cache" is a temporary internet memory with very short access time used for storage of frequently or recently used data.  The main function of a cache is to help retrieve previously visited web pages quickly.  The Court's interpretation here of possession as "knowing control" puts the act of searching and downloading information onto once's computer squarely within the corners of the act.  The deletion of such imagery may only take the prosecution's case from one of accidental download to receipt, review and deletion (understanding the illegal nature of the image(s)).

It is therefore, important to make a thorough assessment of a client's use of cache.  Specific inquiries must be made regarding the user's technical knowledge, whether the default setting have been changed, whether the cache has been specifically accessed, and whether information on the cache has been saved onto a direct file.  The general perception as to use, knowledge, and exertion of control over images on the cache is critical to the success of a defense case.

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