People can’t be charged with child porn if images are digitally created, court rules
3-11-2008 New Hampshire:
CONCORD – A state Supreme Court decision forces Attorney General Kelly Ayotte and Gov. John Lynch to scale back a proposed crackdown on predators who use the Internet to prey on children, Ayotte said Monday.
The state cannot charge someone with child pornography if the images used were digitally created and did not represent an "actual child," according to the ruling.
Ayotte told the Senate Judiciary Committee the bill (SB 495) is still badly needed to increase penalties for those who peddle child pornography and close a loophole to make it a crime to expose oneself to a child with the use of a webcam."None of these are mandatory penalties, judges are still left with discretion," Ayotte stressed.
Gov. John Lynch called for this legislation by creating a task force Ayotte led that worked for nearly 18 months.
"We will not allow sexual predators to hide in the shadows of cyberspace. We must modernize our laws to protect our children from the threats of the 21st Century," Lynch said.
"It is clear these laws are outdated and insufficient in many respects."
This proposal splits the child pornography law into three separate offenses of possession, distribution and manufacture.
Each separate offense would carry enhanced penalties for repeat offenders.
Someone convicted of possessing child pornography can now face up to seven years upon a first offense; this proposal would increase that to as long as 15 years in prison.
Under current law, someone convicted for making child pornography a second time can face up to 15 years in state prison under current law. This plan would have the same person facing up to a life sentence in state prison.
The proposal requires convicted sex offenders to register their e-mail and online identity.
But Michael Iacopino, who heads up the New Hampshire Association of Criminal Defense Lawyers, said the measure violates First Amendment rights of defendants and seeks to deny them due process.
"It is unconstitutional and unnecessarily creates an unfair balance in the criminal justice trial process," Iacopino wrote in a legal brief for the Senate panel.
"The bill needs significant revision in order to survive constitutional scrutiny and to ensure that due process is provided to citizens accused of these offenses."
Iacopino said it can cost defendants up to $100,000 to defend themselves against a child pornography allegation.
Meanwhile, a lawyer from the Motion Picture Association of America said without changes, this could lead to prosecution for depiction of child sex scenes such as in "The Kite Runner" and "Juno."
Jeanne Herrick said movie studios typically use adult body doubles in these sex scenes and urged the Senate to remove the word "simulated" from the proposed, child pornography law.
"We believe that the statute as drafted captures more than necessary," Herrick warned.
Ayotte said she thought the lobby's fears were unwarranted and said she saw no need for the change.
Hudson Police Chief Richard Gendron said he thought prosecutions would drop once a Southern Hillsborough County law enforcement task force formed and started cracking down on cases in late 2006.
"We don't see this every changing," Gendron said. "We see it getting worse because there are more and more people online trying to solicit sex with children."
Merrimack County Attorney Daniel St. Hillaire and Enfield Police Chief Richard Cray also pressed support for the bill.
"With the creation of the Internet, a whole new predator has emerged," said Cray who heads the Association of New Hampshire Police Chiefs.
"Their intentions are clear. They come to harm our children." ..more.. by Kevin Landrigan
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