Constitutional Law

Ore. high court overturns 2 child-porn convictions

By By The Associated Press

PORTLAND, Ore. ? If you look, but don't download, you haven't violated an Oregon law that has been used frequently against child-pornography suspects, the Oregon Supreme Court ruled yesterday.

Prosecutors called the 5-2 decisions in companion cases State v. Barger and State v. Ritchie a disappointment and said the Legislature was likely to update the 1995 law ? something Chief Justice Paul De Muniz encouraged.

How many other convictions or investigations might be thwarted wasn't clear, although prosecutors said the ruling was narrow because most users aren't content just to look at child porn on the Web rather than saving it to a disk.

Oregon's law against encouraging child sexual abuse says it's a violation if a person "knowingly possesses or controls" images of sexually explicit conduct involving a child for purposes of sexual gratification.

In cases from Lane and Clackamas counties, the court's majority said simply surfing the Web doesn't fit the definitions of possession and control in the 1995 law. Further action, such as paying for the images or downloading them, is required for a conviction.

"The intangible nature of a web image is analogous to seeing something that a visitor has temporarily placed in one's own home," wrote Justice W. Michael Gillette, who is retiring after 25 years on the court. "One may be aware of it, may even have asked the visitor to bring it for viewing, but one does not thereby possess the item."

The dissenters said it's that view of technology, not the law, that's out of date.

"The majority's decision fails to recognize that today's iPhone is yesterday's photograph," wrote Justice Rives Kistler. An image displayed on an iPhone could be passed from person to person just as a photo could be, he said, and, "The fact that the person has not saved the image to his iPhone does not mean that the person does not possess or control it."

Justice Virginia Linder joined the dissent.

The prosecutor in the Lane County case, Assistant District Attorney Mike Pugh, said most suspects do more than just look at images of child pornography. "Usually we have more active participation by the suspect," he said.

As a result of the ruling, he said, "We'll have to scrutinize even more cases, so it might result in charging even fewer cases than we do, which is disappointing."

But, he said, the decision wouldn't make much difference for the convict in his county's case, Barry Lowell Barger, who's serving a 25-year sentence on other sex-abuse charges.

Barger's public defense lawyer, Kristin Carveth, said the court's ruling means "the Legislature needs to revise statutes in the face of changing technology. That's not the role of the courts."

That was on the mind of the chief justice, who wrote a concurring opinion that pointed out laws in Alaska and Virginia as possible models for tightening Oregon's.

De Muniz said he wasn't presuming to instruct lawmakers, just to demonstrate that "Oregon can bring its laws into step with contemporaneous technological realities just as other states have done. Oregon's citizens ? and its justice system ? will all benefit as a result."

"They don't often say, 'Here's what you can to do fix it,'" noted Greg Horner, an assistant district attorney in Clackamas County, where the conviction of Gregg Ritchie was overturned. Ritchie was arrested in 2004 while working as an elementary school teacher.

"We're going to talk both with the incoming governor and legislative leadership to see if there's a good possible fix for the issue that was brought up in this case," said Tony Green, a spokesman for Attorney General John Kroger.

Full post as published by First Amendment Center on January 06, 2011 (boomark / email).