A man faces four years behind bars on a felony child-porn conviction in a case that poses an interesting question the courts have not yet addressed directly: Can people be accountable for possession of images they don’t know they have?
The attorney for Robert Coleman, who was convicted April 21 following a three-day trial, argued that knowledge of possession is required for conviction. The jury disagreed in a case triggered when a neighbor tipped off detectives after becoming aware that Coleman had viewed child-porn images online.
Coleman’s attorney, Jack Frost, told reporters after the verdict that merely looking at the child-porn images did not constitute a crime, since Coleman never intended to possess them. “He had come across something on the Internet,” Frost told WJRT-TV. “He had viewed them, but the crime is not viewing them; it’s possessing them.” Coleman may appeal the verdict.
First Amendment attorney J.D. Obenberger told AVNOnline.com that it isn’t impossible for a computer to receive child porn without the user knowing it, particularly by way of Trojan horse programs. But he said it wasn’t entirely clear that Coleman had not obtained the images deliberately.
“If you knowingly go to a child-porn site to view the images, you are in possession of them, even if you don’t know that there’s an image being cached on your computer. That issue hasn’t been addressed in any court yet,” Obenberger said. “But if there is an image on the screen, I can see a prosecutor taking a reasonable view that [the accused was in possession].
“There may be more to the argument, but if one were to go somewhere and say ‘I’ll pay you 25 cents a minute to view it, [but] I will never possess it,’ and the person puts the coin in, is the person at that point in possession of any image?” Obenberger continued. “And I don’t know the answer for sure, but a reasonable argument can be made that the person is in possession of the image.”
Prosecutor Jeff Day made that argument. “I think this type of material that he was looking at, that he had possessed on his computer, it’s not going to be tolerated,” Day told the WJRT-TV. The jury – which looked at some of the images in question during the trial – concluded that however the images got downloaded to Coleman’s computer, the fact that they were there at all was enough to imply possession.
“This conviction demonstrates that people are not tolerating child pornography in any form or distribution method,” Association of Sites Advocating Child Protection Executive Director Joan Irvine told AVNOnline.com. “Although it is my understanding that it is only illegal to download images, why was this person even looking at these? This is a good warning to others.
“In the U.S. it is illegal to download, transmit, publish, or be in possession of child pornography for any reason,” she continued. “You may have a defense if you accidentally find yourself at a website containing child pornography and you immediately exit and report it. However, if you intentionally seek out such websites so that you can report them, you may attract the attention of your [Internet service provider] and/or law enforcement agency. [We] strongly caution against this practice, although we encourage anyone who accidentally comes across such sites to report them immediately.”
Coleman’s computer was seized in 2003. “If you are interested in this stuff and you access it on your computer, you are going to go to jail,” Day said following the Coleman verdict. “You are going to go to prison.”
Coleman is scheduled for sentencing on June 6.
