The Conflict Between California and Federal Online Child Pornography Laws
The Conflict Between California and Federal Online Child Pornography Laws .
Two California Appellate court cases within the last 5 years have stated that California Penal Code Section 311.11 applies to files located computer’s “cache” are “knowingly possessed” within the meaning of the California child pornography statute. On March 26, 2014, the Second Appellate District decided People v. Petrovic. The Petrovic court agreed with the court decision in Tecklenburg v. Appellate Division, which held that California’s child pornography statute is broader than the federal child pornography statute that the U.S. Ninth Circuit discussed in United States v. Kuchinski.
Because California’s child pornography statute makes it illegal to “knowingly” possess child pornography, the defendants in both Petrovic and Tecklenburg argued that a person does not necessarily know what image files may be stored in the internet “cache,” since the user’s computers temporarily places files in the cache when a website is simply viewed and not downloaded.
The California criminal cases have found that California does not need to follow the federal pornography statute from Kuchinski” because the federal statute makes it illegal to possess “materials” while California Penal code 311.11 makes it illegal to possess “images” of child pornography. In short, the California law can be violated without violating the federal law.
Both California cases also relied on the respective defendant’s browsing history and other criminal history. Petrovic’s defense attorney, for example, called attention to language in Tecklenburg that noted that 311.11 should not be interpreted as prohibiting the mere viewing of child porn as opposed to the possession of it. However, the court disregarded that statement, finding it inconsistent with the court holding in Tecklenburg.
The March 26, 2014 decision is not yet final, and can still be appealed to the California Supreme Court. Since the difference between “image” and “material” seems like a distinction without a difference, but under the same evidence in both of these cases, it might have been possible for the defendant to be found not guilty in federal court, the interpretation of internet child porn cases is only more confusing without a decision from a higher court.
The Conflict Between California and Federal Online Child Pornography Law, porn, underage, legal, law, court, judge, crime, san jose, lawyer, attorney.