State v. Barger

¶1concurring.

¶2I agree with the majority’s conclusion in this case and in State v. Ritchie, 349 Or 572, 248 P3d 405 (2011), that *568defendants did not violate ORS 163.686(l)(a)(A)(i) when they viewed pornographic images on the Internet. Although the legislature might have intended that ORS 163.686 criminalize “the mere ‘obtaining’ or ‘viewing’ of child pornography without consideration,” the words the legislature used in the statute do not reveal that intent. 349 Or at 553. In agreeing with the majority’s conclusion, I wish to point out that the prosecution made a choice in both these cases not to argue that the legislature had intended that the “possession or control” element of ORS 163.686 could be satisfied by the storage in the computer’s temporary Internet cache, and later in unallocated space in the computer’s hard drive, of the digital images that each defendant had viewed.1 That said, I believe it is also important to identify the chasm that presently separates the statutory texts at issue here from the technological realities of the digital age in which we live.

¶3As the majority correctly identifies, the crime of encouraging child sexual abuse in the second degree, ORS 163.686, requires, among other things, the knowing possession or control of “any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child[.]” Although the Internet was a well-established fact of life at the time that ORS 163.686 was enacted in 1995, nothing in that statutory text suggests that the legislature expressly intended to capture the kind of digital computer images that purveyors of child pornography now use as their principal means of communication and distribution. See Ty E. Howard, Don’t Cache out Your Case: Prosecuting Child Pornography Possession Laws Based On Images Located In Temporary Internet Files, 19 Berkeley Tech LJ 1227, 1228 (2004) (noting that, for defendants presently collecting and trafficking in child pornography, the media of choice are now digital images and the medium of choice is the Internet). Instead, and unfortunately, the legislature appears to have assumed that the proscribed pornographic images would appear on or in tangible objects — photographs, motion pictures, videotapes, or other visual recordings.

¶4*569In 1997, when the legislature enacted ORS 163.688 and ORS 163.689,2 the legislature demonstrated that it was capable of proscribing the possession of digital images, like those at issue here, for purposes of the Oregon Criminal Code. Those statutes made it a crime to knowingly possess and use — or attempt to use — “any visual depiction of sexually explicit conduct involving a child,” for the purpose of inducing another child to engage in sexual acts. When it enacted those statutes, the legislature specifically defined the terms “visual depiction” to include computer-related images:

“As used in ORS 163.670 to 163.693:

“ Wisual depiction’ includes, but is not limited to, photographs, films, videotapes, pictures or computer or computer-generated images or pictures, whether made or produced by electronic, mechanical or other means.”

¶5ORS 163.665(4) (emphasis added).

¶6Unfortunately, the legislature did not add those, or similar terms, to Oregon’s other child pornography statutes. Today, the phrase “visual depiction” and its attendant definition currently find use only in ORS 163.688 and ORS *570163.689, and that, in turn, has created the interpretive conundrum that this court faced in this case and in Ritchie. Clearly, the legislature knows how to expressly criminalize certain kinds of computer media when it wants to: it did so with respect to ORS 163.688 and ORS 163.689. It is equally clear, however, that at the same time that it created and defined the phrase “visual depiction,” the legislature could have incorporated that term or something similar throughout the statutes at issue here, but did not. The upshot of that omission is that, for the purposes of ORS 163.686, possessing or controlling a “photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child” is best interpreted under our framework for statutory analysis as a reference to the possession or control of some corporeal item — a tangible, physical object — rather than its purely digital counterpart. The statute we interpret today appears not to have been written for the digital world in which we live, making the legislature’s intent very difficult to discern and apply in the cases at issue here.

¶7Other states have anticipated or experienced similar statutory disconnects with regard to Internet child pornography prosecutions; their response has often been to expand the relevant statutes to expressly capture proscribed computer-based activities. In 2010, for example, Alaska amended its provisions criminalizing the possession of child pornography by adding the statutory text highlighted below:

“(a) A person commits the crime of possession of child pornography if the person knowingly possesses or knowingly accesses on a computer with intent to view any material that visually depicts conduct described in AS 11.41.455(a) knowing that the production of the material involved the use of a child under 18 years of age who engaged in the conduct or a depiction of a part of an actual child under 18 years of age who, by manipulation, creation, or modification, appears to be engaged in the conduct.”

¶8AS 11.61.127(a) (emphasis added). In 2007, Virginia similarly amended its definition for “sexually explicit visual material” as it related to the state’s child pornography laws in order to expressly include images contained on the temporary Internet cache of a computer:

*571“For the purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, the term “sexually explicit visual material” means a picture, photograph, drawing, sculpture, motion picture film, digital image, including such material stored in a computer’s temporary Internet cache when three or more images or streaming videos are present, or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent.”

¶9VCA 18.2-374.1(A) (emphasis added).

¶10In writing today, I do not presume to instruct Oregon lawmakers on how to go about their business. My objective is simply to demonstrate that, with regard to the crime of encouraging child sexual abuse, Oregon can brings 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.