Interactions and images relayed over the Internet-based telecommunications system Skype are considered to be “computer depictions” under Pennsylvania’s child pornography laws, the state Superior Court has ruled.
A three-judge panel affirmed the sentence of 30 months to 10 years’ incarceration handed down to Ty M. Levy by a Lycoming County judge for sexual abuse of children, unlawful communication with minors, and disseminating obscene materials, among other charges.
In affirming the sentence, the Superior Court rejected Levy’s argument that interactions between Levy and a 15-year-old girl over Skype—during which he encouraged the girl to expose herself and to masturbate (and that he did the same), according to the court decision—did not constitute the statutory definition of computer depictions because they were intangible.
Judge David N. Wecht wrote in the court’s opinion that there is “no question” that images displayed on a computer screen “depict” their subject under common usage of the term.
Additionally, Wecht said, “Levy argues that because images transmitted within Skype are not tangible objects that can be obtained, retrieved, or reproduced” such as books, pamphlets, films, etc., “the General Assembly failed to encompass Skype and similar media within the parameters of the statute. This argument is unavailing, for the simple reason that the common and approved usage of the term ‘depiction’ does not require the traits that Levy insists are inherent in the term.”
The court also rejected Levy’s argument that his email to the girl that included a link to a pornographic website did not constitute disseminating obscene materials to a minor, Wecht said.
The case centers on Skype sessions conducted between Levy and the girl in which both parties were exposed and masturbating in front of webcams, Wecht said. The sessions were not recorded and Levy did not have images of the girl on his computer when it was examined by police.
Levy argued that the evidence to convict him of sexual abuse of children or unlawful contact with a minor was insufficient because there needed to be proof beyond a reasonable doubt that there existed a computer depiction of a child for illicit purposes, according to Wecht.
At the conclusion of a nonjury trial, Levy was found guilty of two counts of sexual abuse of children, four counts of unlawful communication with a minor, one count of disseminating obscene and other sexual materials, and one count of corruption of a minor, Wecht said.
On Oct. 10, 2012, Levy was sentenced to an aggregate six-year term of intermediate punishment, according to Wecht, which included 16 months of incarceration in the Lycoming County jail.
Seven days later, the prosecution filed a motion for reconsideration of the sentence, contending the sentence was too lenient. According to Wecht, the trial court held a second sentencing hearing Nov. 27, 2012, in which it sentenced Levy to an aggregate term of 30 months to 10 years’ imprisonment. Levy filed an appeal the following December.
According to Wecht, Levy argued on appeal that the streaming video of a Skype session cannot be considered a computer depiction under state law.
“Akin to the telephonic communication foreshadowed by Dick Tracy and the Jetsons, Skype permits individuals using webcams to see each other while conversing over the Internet,” Wecht explained. “When a person uses Skype, his or her computer monitor displays the video images of the other participant. … There would be no difference if the person viewed that image in a photograph or on a computer screen. It follows then that Levy’s computer ‘depicted’ a 15-year-old girl masturbating.”
Wecht added the court’s conclusion is in line with the General Assembly’s intent in enacting the sexual abuse of children statute, which the state Supreme Court explained was “plainly to protect children, end the abuse and exploitation of children, and eradicate the production and supply of child pornography.”
Wecht said that Levy also contended that sending an email with a link to a pornographic website to the girl does not constitute dissemination of explicit materials to minors because the link itself was more akin to the title of a book, magazine or movie.
According to Wecht, Levy asked in his brief, “If an individual provides the title of a sexually explicit book and a minor subsequently takes the steps to locate the book at the library and views its contents, is this dissemination of sexually explicit material so as to warrant charges under these sections?”
Wecht said the point was an interesting and thought-provoking one, but it would have the court ignore the basic function of a link to a website.
“We see no difference between sending a link to a website containing pornography and actually sending pornographic photographs as attachments to an email,” Wecht concluded. “One cannot reasonably argue that sending photographs as an attachment to an email is not the dissemination of explicit sexual material merely because one must click on the attachment to view the photographs.”
Similarly, Wecht said the court saw no difference between clicking on the link and inserting a flash drive into a USB port, putting a VHS tape into a VCR, or taking a pornographic magazine out of a blacked-out plastic wrapper.
Aaron Stuart Biichle of the Lycoming County District Attorney’s Office did not return a call seeking comment.
Levy’s attorney, Kyle W. Rude of Schemery Zicolello in Williamsport, Pa., said the Superior Court’s ruling was disturbing.
Regarding the court’s interpretation of child pornography law, Rude said, “With criminal statutes you’re not supposed to read it that broadly, I’m disturbed about that part.”
He added, “Our General Assembly did not take into consideration moving video at all” in the statute. “I think we’ll need to see some changes in the legislation to make it more up to date.”
Rude also said, “The judge should not have changed the sentence. He changed the minimum and maximum sentence based on no new information.”
(Copies of the 20-page opinion in Commonwealth v. Levy, PICS No. 13-3407, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •