CA: 1,000 words are worth a picture

People v Kozlow, 2007 NY Slip Op 03592 [available here]

The defendant in Kozlow was convicted of disseminating indecent materials to minors in the first degree. To be guilty under the statute, a defendant must disseminate indecent materials to a minor and use the communication to convince the minor to engage in sexual contact with the defendant. (Kozlow, 2007 NY Slip Op 03592.) To fall within the statute, the electronic communication must "depict" nudity or sexual conduct. (Id. at __.)

The defendant in Kozlow sent emails to an investigator posing as a minor. The emails described, in writing, various sexual acts. (Id. at __.) No pictures were sent. On appeal, the defendant argued that, since the emails did not include pictures, the messages did not "depict" sexual acts. The Court of Appeals (in a majority opinion by Judge Pigott) disagreed. While noting that the word "depict" has its origins in a Latin word meaning "to paint", and that one definition is "to represent in a picture", "the word 'depict' also has a standard sense of 'to represent or portray in words' and it has been used in that manner since the colonial era." (Id. at __.) "Defendant's argument . . . that the Legislature was seeking to criminalize the luring of a child into a sexual encounter by transmission of visual images, while leaving a loophole allowing a predator to lure a child into sex through transmission of words alone, falls of its own weight." (Id. at __.)

Justice Smith dissented, and would have interpreted "depicts" in its common, narrow sense; "to represent by a picture." (Kozlow, 2007 NY Slip Op 03592 [SMITH, J., dissenting].)