from www.registerguard.com – The Oregon Supreme Court ruled Thursday in two cases that state law does not forbid people from viewing Internet child pornography, as long as the images are not intentionally saved, duplicated or otherwise “possessed.”

One of the rulings stems from a 2008 case in which a Lane County jury found a Eugene man guilty of eight counts of second-degree encouraging child sexual abuse, after Eugene police discovered pornographic images in a temporary file on the man’s computer.

The state high court overturned the conviction, ruling that the man, Barry Lowell Barger, did not break the law by simply looking at the material. No evidence suggested that Barger knew that the images were being stored on his computer, Justice Michael Gillette wrote in issuing his opinion in the case.

The child pornography law, passed by the state Legislature in 1995, states that a person commits the crime if he or she “knowingly possesses or controls” child pornography. Viewing child pornography on a computer doesn’t mean that a person possessed the images, the court ruled.

“Looking for something on the Internet is like walking into a museum to look at pictures — the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them,” Gillette wrote.

Two of the panel’s seven judges disagreed with the majority opinion.

Using special software, a detective had discovered images of child pornography in Barger’s computer’s “temporary Internet folder,” the place where a computer automatically copies images from accessed websites to improve efficiency if the user returns to that website.

Lane County Deputy District Attorney Mike Pugh, who prosecuted Barger, called Thursday’s ruling “a well-reasoned opinion … based upon (the court’s) understanding of the legislative intent.”

But Pugh anticipates that the case may prompt prosecutors across Oregon to ask legislators to clarify the statute’s language.

Pugh said viewing child pornography “should be criminal conduct.”

Gillette wrote that issues similar to the ones highlighted in Barger’s case have prompted lawmakers in other states to outlaw the viewing of child pornography on the Web. He wrote that Alaska’s Legislature last year made it illegal to knowingly access online child pornography “with (the) intent to view” the material.

But because Oregon’s law does not specifically ban the viewing of child pornography, the high court reversed Barger’s conviction — a decision that pleased his attorneys.

“If (state legislators) want to criminalize merely viewing an image on a computer screen, then they need to put it in the statute,” said Kristin Carveth, a public defender who handled Barger’s appeal.

Barger, 39, was sentenced to 16 months in prison on the pornography charges, with the sentence to run at the same time as a 25-year sentence he received for sexually abusing two young children in a separate Lane County Circuit Court case.

Carveth said it’s unlikely that the state Supreme Court ruling will work to reduce the time Barger spends behind bars.

The court issued a similar ruling Thursday in a second case involving Gregg Bryant Ritchie, a former elementary school music teacher from Clackamas County who was convicted in 2005 of 20 counts of second-­degree encouraging child sexual abuse after investigators found child pornography on his computer.

Pugh said the language contained in the current state law is “an example of a situation where our technology has outpaced the imagination of our Legislature.”

Chief Justice Paul DeMuniz included a similar statement in concurring with the court majority’s opinion.

“I do not presume to instruct Oregon lawmakers on how to go about their business,” DeMuniz wrote. “My objective is simply to demonstrate that, with regard to the crime of encouraging child sexual abuse, Oregon can bring 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.”