Merely downloading child porn shouldn't be punished as though the downloader was the producer, the New Jersey State Supreme Court ruled July 24.
"There is no allegation that the defendant knowingly received (an) image for the purpose of selling it," wrote Justice Peter Verniero for a 4-3 majority. "Nor does the State allege that defendant sold, displayed, or distributed the prohibited image to other persons. Thus, he is no more than a suspected fourth-degree possessor."
The case involved Kevin Sisler, who had downloaded child porn on a Morris County Public Library computer. The state wanted him prosecuted as a child porn producer which could have meant a five-to-ten year prison term and automatic registration as a sex offender under Megan's Law. But Verniero wrote that the actual child porn creator is "more culpable" than the mere child porn "possessor" because the creator stirs "the industry that this statute seeks to combat."
That didn't hold with Justice Jaynee LaVecchia, who wrote a dissent in which she argued that a state law which punishes a child porn downloader as if he was the producer "reaches broadly to punish the perpetuation of child pornography. It is not our function to sit in review of the Legislature's judgment in respect of punishment gradations."
The law was added as an amendment to Megan's Law in 1998. The amendment's author, state Assemblywoman Rose Marie Heck, told reporters she was now writing a new bill which would specify that downloading child porn is also good for five-to-ten year sentences or "as long as we can send him there." A similar bill is said to be in the works by the original Megan's Law author, state Sen. Peter Inverso (R-Mercer)
The state Supreme Court ruling leaves Sisler yet to face a charge of possessing child porn, which carries only an 18-month jail sentence but probation for first offenders and no mandatory sex offender registration.
"There is no indication from the face of this statutory scheme," LaVecchia wrote in her dissent, "that the Legislature intended to punish only those individuals who reproduced copies of child pornography for the purpose of disseminating them to others."
