Pennsylvania v. Levy, 2013 WL 6843076 (Pa.Super.), December 2013

Appellant was charged with two counts of Sexual Abuse of Children, and one count of Obscene and Other Sexual Materials (the other counts were withdrawn at trial), in connection with certain communications he had with a fifteen- year-old girl over the computer.  The evidence was presented by stipulation: that [Levy] and the girl communicated via SKYPE whereby each could see the other during the conversation by way of a webcam, and that he encouraged the girl to expose herself and masturbate in front of the webcam (and that he did the same); also that each sent the other a “link” to a pornographic website. It was also stipulated that the SKYPE sessions were not recorded and that [Levy] did not have any images of the girl on his computer when it was examined by police. 

Appellant raises four issues on appeal (but we will only address two here): 1) whether streaming video, such as Skype, cannot be considered a computer depiction under 18 Pa.C.S.A. section 6312, sexual abuse of children, nor under section 6318(a)(5), unlawful contact with a minor? 2.) Whether sending a computer link via email cannot be considered dissemination of sexually explicit materials to satisfy a conviction under 18 Pa.C.S.A. section 5903, obscene or other sexual material, nor under 18 Pa.C.S.A. section 6318, unlawful contact with a minor? 

Issue 1- Statute in Question: 

(d) Child pornography.

(1) Any person who intentionally views or knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.

18 Pa.C.S. § 6312(d). “Prohibited sexual act” is defined as “[s]exual intercourse …, masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.” 18 Pa.C.S. § 6312(g). Unlawful contact with a minor, in pertinent part, is defined as follows:

(a) Offense defined. —A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:

(5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse of children ). 18 Pa.C.S. § 6318(a)(5). 

Law: Statutory interpretation also presents a question of law, as to which our standard of review is de novo. Commonwealth v. Van Aulen, 952 A.2d 1183, 1184 (Pa.Super.2008).  The goal in interpreting any statute is to ascertain and effectuate the intention of the General Assembly; when the words of a statute are free and clear from ambiguity, “the letter of the statute is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §§ 1921(a), (b).  

Skype: “Skype is an internet communication service that provides live, two-way audio and video communication.” Julian v. State, 319 Ga.App. 808, 738 S.E.2d 647, 649 n. 4 (Ga.App.2013) (citation omitted). 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. During the live-streaming communication, the images recorded by a webcam appear on the other user’s monitor screen. Any person within eyesight and earshot of the computer monitor can observe the participant’s image and hear his or her words. In other words, Skype offers a program that permits a person to see and hear another person, who is in a different location, using a webcam and the internet.

When a person uses Skype, his or her computer monitor displays the video images of the other participant. We have little trouble concluding that such a display amounts to “showing” or “representing” an image as the common and approved usages of the term contemplates. We find the example attendant to Webster’s definition of “depict” to be particularly instructive. In that example, the photograph “depicts” two brothers standing in front of a store. The common usage of the term includes a physical object, the photograph, displaying a real image. We find little difference between analogizing this common usage of the term to an image, live or still, appearing on a computer screen. A person who looks at the picture in the example will see two brothers standing in front of a store. That image is “depicted” to the viewer. 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 fifteen-year-old girl masturbating. Thus, there is no question that images displayed on a computer screen “depict” their subject according to the common and approved usage of the term. 

Holding: We conclude that the images projected on a computer monitor by the use of Skype constitute “computer depictions” for the purposes of Levy’s sexual abuse of children and unlawful contact with a minor (pursuant to subsection (a)(5)) convictions. 

Issue 2:

Levy maintains that sending an email with a link to pornographic materials does not constitute the knowing dissemination of explicit sexual materials for the purposes of the crimes of obscene and other sexual materials and unlawful contact with a minor.  

Statute in Question:

(c) Dissemination to minors.—No person shall knowingly disseminate by sale, loan or otherwise explicit sexual materials to a minor.

18 Pa.C.S. § 5903. Unlawful contact with a minor states, in pertinent part, as follows:

(a) Offense defined. —A person commits an offense if he is intentionally in contact with a minor for the purposes of engaging in an activity prohibited under the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:

(4) obscene and other sexual materials and performances as defined in section 5903 (relating to obscene and other sexual materials and performances).18 Pa.C.S. § 6318(a)(4).

Levy does not challenge the scienter element of the crimes. Rather, he focuses his argument on whether the act of sending a link in an email constitutes the dissemination of “explicit sexual materials.” 

Explicit sexual materials are defined in subsection 5903(c) as:

(1) any picture, photograph, drawing, sculpture, motion picture film, video tape or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors.

(2) any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (1), or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to minors.

Appellant argues that the link (URL) is more akin to the title of a book.  Someone has to go through the additional steps of locating the book and opening up its contents.  

Analysis: “That the recipient must take the cursory step of clicking on the link does not remove that link from the general definition of “explicit sexual material.” We see no difference between sending a link to a website containing pornography and actually sending pornographic photographs as attachments to an email. 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. In a similar vein, we see no difference between clicking on the link for instantaneous access to the pornographic material and inserting a flash drive into a USB port, putting a VHS tape into a VCR, or taking a pornographic magazine out of its blacked-out plastic wrapper. These cursory steps that must be taken to actually view the pornographic content do not remove the items from the realm of explicit sexual materials. Neither does the simple step of clicking on a link to instantaneously access the materials, as the victim had to do in the present case. Hence, the link is more akin to those types of materials than the title of a book, Levy’s protestations to the contrary notwithstanding.” 

Holding:   For these reasons, we hold that an email containing a link to pornographic materials constitutes the dissemination of “explicit sexual materials” under 18 Pa.C.S. § 5903(c). Thus, the evidence was sufficient to support Levy’s conviction under that section, as well as his conviction for unlawful contact with a minor based upon the same behavior. To hold otherwise would frustrate the General Assembly’s intent. The lawmakers clearly intended to protect children from the harms caused by the dissemination of pornographic materials, particularly by adults. Were we to interpret the term differently, predators easily could avoid criminal liability simply by sending children links to illicit materials, rather than sending the materials themselves. 


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