The decision is based on an appeal filed by a man convicted of child porn possession after police raided his home in 2003 and discovered downloaded pictures of underage girls engaged in sex acts.
Jonathan George Moore asked the Court of Special Appeals to review his conviction, asking for clarification between the act of downloading child porn and distributing it. While he admitted to downloading the images, he claims he was not involved in the distribution or creation of the images.
At issue is the term “depict,” which according to Maryland law suggests the act of distribution. Moore’s attorney argued that he had been convicted based on a ruling that he used a computer to “depict or describe” a minor engaging in sexually explicit activity.
However, the appeals court determined that there is in fact a discrepancy between a person who “downloads” an image for possession and a person who “depicts” or creates an image, which is punishable as a crime.
"A person who downloads a picture of a rose does not depict the rose; the photographer depicts the rose when taking the picture," the ruling said.
The appeals court issued a unanimous decision on the issue, although many child advocates are outraged, calling it an endorsement of pedophiles and a future legal loophole for child pornographers.
“This decision sends the wrong message; it is very concerning to those who try to battle child pornography and protect innocent children,” Joan Irvine of Association of Sites Advocating Child Protection said. “If it is legal to download child pornography, this will encourage the criminals who make money distributing such pictures to these pedophiles. The end result is still the same – a child was sexually abused.”
The appeal did not overturn Moore’s misdemeanor charge for possessing child pornography.
