Supreme Court of Pennsylvania Rules Accessing and Viewing Child Pornography over the Internet Constitutes Control under Sexual Abuse of Children Statute

Pennsylvania’s statute on Sexual Abuse of Children contains a provision which states: “it is illegal for an individual to knowingly possess or control any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of eighteen years engaging in a prohibited sexual act or in the simulation of such act.” In 2003, Anthony Diodoro was charged and subsequently convicted with violations of the Sexual Abuse of Children statute and Criminal Use of a Communication Facility. Police had obtained a search warrant for Diodoro’s computer, upon which they found evidence of accessing child pornography in the hard drive’s cache memory; the images were not saved to the hard drive but rather the evidence showed the images were merely accessed via the internet and viewed by the user.

Diodoro was convicted and sentenced to nine to twenty-three months incarceration, followed by five years of supervised probation. A panel of Superior Court judges reversed Diodoro’s conviction, finding that the evidence against him was insufficient to support a finding of possession of child pornography in conformance with the statute. The Commonwealth appealed and was granted an en banc rehearing by the Superior Court. In this rehearing, the Court held that Diodoro’s mere accessing and viewing of child pornography constituted the control element of the criminal statute, basing their opinion on the ordinary meaning of control as to exercise restraint or directing influence over something; specifically, his use of the computer mouse to open the images, locating the websites, and having the ability to print, save, or email the images once opened and viewed. The panel decision was therefore set aside and conviction reinstituted against Diodoro.

Diodoro appealed the en banc decision to the Supreme Court of Pennsylvania and was granted review of the following question: “Whether accessing and viewing child pornography over the internet constitutes ‘control’ of such pornography under [the statute].” Diodoro argued that in order to have control over the images, the Commonwealth must prove he had knowledge of their presence on his computer; further, he argued it is the legislature’s responsibility to enact a statute which provides fair notice that viewing child pornography constitutes an offense under the Sexual Abuse of Children statute. The Supreme Court heard the arguments and affirmed the ruling of the Superior Court. The Court agreed with the definition of control being used as to exercise restraint or direct influence. Further, the Court noted that had Diodoro saved or printed the images, he would have violated the possession element of the statute and been convicted as such. The Court reasoned that interpreting “possession or control” as not interchangeable would create a major loophole in the statute in which offenders could merely delete or not save child pornography upon intentional viewing. The purpose of the statute is to protect a compelling state interest (protecting children from sexual exploitation), and therefore must be interpreted broadly enough to punish those who intentionally access (but do not save) child pornography.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making or distributing child pornography, or the sexual abuse of a child, the Law Offices of Marc Neff can help. For a confidential consultation, please contact our offices at 215-563-9800 or via email at marc@nefflawoffices.com.