Internet smut verdict is voided

Md. high court ruling sparks effort to change child-porn law

Images were downloaded, not created

Unanimous decision turns on the definition of `depict'

August 12, 2005|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

The felony conviction of a St. Mary's County man for downloading child pornography from Internet sites was voided yesterday by Maryland's highest court in a unanimous decision that is prompting the state attorney general to seek a change in the law.

The Court of Appeals ruling stemmed from an appeal by Jonathan George Moore, who was convicted in June 2004 of using a computer to "depict" children in sex acts and of possession of child pornography - charges stemming from a police raid at his Lexington Park home months earlier.

Prosecutors, and later the attorney general's office, argued that he violated the state law that makes it a felony to "use a computer to depict or describe a minor engaging in an obscene act."

Moore did not contest his misdemeanor conviction for possession - only the felony of depicting a minor in a sex act, in an appeal centering on the ordinary meaning of the words.

He maintained, and the court's seven judges agreed, that to "describe" or "depict" means to create the words or images. He did not create the photos - he downloaded existing images, and there was no indication that he distributed them.

The law that criminalizes the use of a computer to "depict or describe a minor" in sex acts refers to creating the images - and so it does not apply, the court said.

"A person who downloads a picture of a rose does not depict the rose - the photographer depicts the rose when taking the picture," Judge Irma S. Raker wrote for the court, and explained that "the image already has been depicted when the person downloads it."

"We should discourage the downloading," Maryland Attorney General J. Joseph Curran Jr. said after reviewing the opinion.

"We will take a chance at trying to amend the law," he said, noting that widespread computer use has made it easier to obtain and spread child pornography.

Curran said he would like to see computer downloading and retaining child pornography classified as a felony.

Possession alone is a misdemeanor, a less serious crime. But creating or distributing images of minors in sex acts is a felony. Curran said he has looked at an Oklahoma law that includes downloading child pornography as a felony and will continue to examine laws in other states.

Russell P. Butler, executive director of the Maryland Crime Victims' Resource Center Inc., said sometimes the law, down to the precise wording, needs to catch up with computer technology and that steps should be taken to protect young victims.

"What was done to that child to create that material - you need to punish those that use the market to reach those who create it," he said.

But Byron L. Warnken, who teaches criminal law at the University of Baltimore, cautioned that a new law would have to define terms carefully to ensure there is a difference, for example, between viewing images on a Web site and copying the images.

He said a law would need to draw distinctions in several areas of computer use so that people who have no intention of collecting child pornography in their computers are not wrongly charged and convicted.

"How would you know if I was a mere accidental looker or was I saving this to show to my buds? Does this computer differentiate? Obviously you need expertise in technology," Warnken said.

What effect the high court's decision will have on Moore's sentence is unclear. His two convictions had been rolled into a single three-year sentence, with all but nine months suspended. The ruling returns his case to St. Mary's County Circuit Court for a new sentencing hearing.

Neither Moore nor his appellate public defender could be reached for comment yesterday.

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