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Vainieri Huttle, Prieto & Downey Bill to Crackdown on Child Pornographers, Stiffen Penalties Headed to Governor

Legislation is Designed to Address Technological Advances which have Made Mass Distribution Easier

Legislation sponsored by Assemblywoman Valerie Vainieri Huttle, Speaker Vincent Prieto and Assemblywoman Joann Downey to broaden the state’s child pornography laws and substantially boost penalties in order to keep pace with changes in technology received final legislative approval from both houses on Thursday.

The bill (A-4859) establishes additional penalties for child pornography crimes by expanding the definition of child pornography to include the portrayal of a child in a sexual manner; establishing the crime of “leader of child pornography network”; and enhancing penalties and revising the sentencing provisions for these crimes.

“This legislation is designed to address the disturbing changes in the child pornography industry that have unfortunately been aided by technology, but are not adequately addressed by our current laws,” said Vainieri Huttle (D-Bergen). “Since electronic methods have allowed these sick individuals to mass disseminate images and exponentially increase child exploitation, their punishment needs to fit their crime.”

First, the bill criminalizes the possession and distribution of “child erotica,” which refers to images that depict nearly naked, suggestively-posed, and inappropriately sexualized children. The bill also amends the definition of child pornography, or an “item depicting the sexual exploitation or abuse of a child,” to include an item which portrays a child in a sexually suggestive manner.

“Unfortunately, technology has aided child pornographers in their sick quest to exploit children,” said Prieto (D-Bergen/Passaic). “They need to know that this increased capacity to abuse children is going to be met with an appropriately increased and stiff response from our criminal justice system.”

Next, the bill establishes the crime of “leader of a child pornography network” if an individual knowingly conspires with others to establish or maintain a child pornography distribution network through which files containing child pornography are made available to an organized group. This would be a crime of the first degree if the offense involves 100,000 or more child pornography items; a crime of the second degree if the offense involves at least 1,000 but less than 100,000 items; and a crime of the third degree if the offense involves less than 1,000 items.

A crime of the first degree is punishable by a term of imprisonment of 10 to 20 years, a fine of up to $200,000, or both; a crime of the second degree is punishable by a term of imprisonment of five to 10 years, a fine of up to $150,000, or both; a crime of the third degree is punishable by a term of imprisonment of three to five years, a fine of up to $15,000, or both; and a crime of the fourth degree is punishable by a term of imprisonment of up to 18 months, a fine of up to $10,000, or both.

“This bill updates current laws to reflect the times we’re living in, which, unfortunately, can be very disturbing,” said Downey (D-Monmouth). “But that’s all the more reason why we need to crackdown on those who purvey, aid, or abet child pornography.”

Under current law, possession of child pornography is increased from a crime of the fourth degree to a crime of the third degree and carries a presumption of imprisonment if a person possesses 100 or more items of child pornography.

However, due to rapid advancements in technology, enormous numbers of digital files are able to be downloaded at very high speeds and hard drive memory storage has been greatly expanded. As a result, there has been an increase in the number of individuals or “super-possessors” who possess thousands to hundreds of thousands of items of child pornography. These advances also have facilitated exponential growth in both the quantity and frequency of distribution of child pornography.

According to the sponsors, current law does not provide adequate penalties for child pornography super-possessors, who may currently face the same penalties as a defendant possessing 100 items of child pornography. In addition, it does not differentiate between a single still image of child pornography and an extended video sequence, which could consist of thousands of digital images.

Therefore, the bill creates enhanced penalties for super-possessors by making possession of 100,000 or more items of child pornography a crime of the first degree; possession of less than 100,000 items but greater than 1,000 items a crime of the second degree; and possession of 1,000 items a crime of the third degree. The bill also promotes more equitable sentencing for video images by providing that each video or video segment of child pornography is the equivalent of 10 separate items.

Under current law, a person convicted of distribution of child pornography is guilty of a crime of the second degree with a mandatory minimum sentence of one-third to one-half the sentence imposed or five years, whichever is greater. A distributor who is caught transmitting 25 child pornography files currently faces the same penalties as a distributor caught sending 10,000 files. The bill revises the penalties for distribution of child pornography to provide that a person who distributes 1,000 or more items of child pornography is guilty of a crime of the first degree. Distribution of less than 1,000 would remain a crime of the second degree.

An offender will be referred to the Adult Diagnostic and Treatment Center (ADTC) for sex offender treatment if the court finds that the offender’s conduct is characterized by a pattern of repetitive, compulsive behavior and the offender is amenable and willing to participate in sex offender treatment.

A psychological examination is ordered for offenders convicted of a number of sex offenses, which include the distribution of child pornography, but not possession of child pornography. Currently, a prosecutor may make a motion requesting that the court impose a special sentence of parole supervision for life on a person who possesses any amount of child pornography. Judges are currently required to order a psychological examination of certain sex offenders to determine if referral to the ADTC is appropriate.

The provisions of the bill stipulate that if a person is convicted of possessing 1,000 or more items of child pornography:
– the court is required to consider imposing a sentence of parole supervision for life;
– the person is subject to evaluation for ADTC commitment; and
– the person is required to register as a sex offender and be subject to the community notification and Internet publication requirements under Megan’s Law.

Finally, the bill clarifies that for all child pornography manufacturing and distribution offenses, including the crime of leader of a child pornography network established under the bill, a fine is to be imposed and deposited into the Computer Crime Prevention Fund.

The legislation now heads to the Governor’s desk.