Senators Sweeney, Greenstein, Kean & Holzapfel Introduce Legislation To Strengthen Child Pornography Law and Establish Stricter Penalties

TRENTON – Senate President Steve Sweeney, Senate Law & Public Safety Committee Chair Linda R. Greenstein, Senate Minority Leader Tom Kean, and Senator Jim Holzapfel yesterday introduced legislation that would strengthen New Jersey’s child pornography laws and establish additional penalties for violators.

“The child pornography industry has changed over time with advancements in technology, but our laws in New Jersey have not kept up with the pace of these changes,” said Senator Sweeney. “Revising our definition of child porn and putting stricter penalties on the books is the right thing to do to protect minors from being exploited.”

The bill expands the definition of child pornography to include the portrayal of a child in a sexual manner. Under the bill, this is defined as: (1) depicting a child’s less than completely and opaquely covered intimate parts, as defined in current statute, or any form of contact with the intimate parts in a manner that, by means of the posing, composition, format, or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the child; or (2) otherwise depicting a child for the purpose of sexual stimulation or gratification of any person who may view the depiction where the depiction does not have serious literary, artistic, political, or scientific value.

“We must be cognizant of the surrounding Internet culture, and the speed and scale by which information is shared as we work to deter the abuse and exploitation of children in all of its forms,” said Senator Greenstein (D-Middlesex, Mercer). “In particular, the Internet has enabled an increased production, distribution and possession of child pornography. While federal law provides the framework for investigating and prosecuting violators, states like New Jersey must take an active role and make a coordinated effort role in setting stricter boundaries.”

“If someone in New Jersey has engaged in the large-scale collection or distribution of pictures of children in sexually suggestive poses, they pose a serious threat to our children and our community,” said Senator Kean. “The Attorney General has highlighted the need to better address this growing problem, including the establishment of new child pornography crimes, tougher punishments, and better monitoring of offenders. There’s a bipartisan consensus that these protections are overdue.”

“We cannot allow the sexual exploitation of children to be tolerated in this state, nor can we turn a blind eye to loopholes in our laws that allow people to engage in this despicable activity in any way,” said Senator Holzapfel (R-Ocean). “It’s clear that people who collect child erotica are a threat to public safety and the children of New Jersey, and our laws must be tightened to reflect that.”

Federal law defines child pornography as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct involving a minor.

Under the bill, the possession and distribution of child erotica, which refers to images that depict nearly naked, suggestively-posed, and inappropriately sexualized children, is a crime subject to fines, imprisonment or both.

The bill also establishes the crime of “leader of child pornography network” and enhances penalties for possession and distribution based on the quantity of child pornography items. 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 would be imposed and deposited into the Computer Crime Prevention Fund.

Child Porn Network Leaders

Under the bill, a person is guilty of the crime of “leader of a child pornography network” if he or she 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. Leader of a child pornography network is 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. 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.

Super-Possessors of Child Porn

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.  But technological advancements have made it possible to download and store large numbers of digital files very quickly, and current law does not account for individuals who possess thousands to hundreds of thousands of child pornography items. Additionally, current law does not differentiate between a single still image of child pornography and an extended video sequence, which could consist of thousands of digital images.

“Current law falls short of providing suitable penalties for super-possessors of child pornography, and it is our duty as legislators to address these shortcomings to protect children in our communities,” said Senator Sweeney. “If it’s possessing one picture or 100,000, child pornography is not a victimless crime, and in New Jersey, we must get tougher.”

This bill would create 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 would also promote more equitable sentencing for video images by providing that each video or video segment of child pornography is the equivalent of 10 separate items.

Penalties for Child Porn Distribution

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.

“The Internet and social media have provided fertile ground for individuals to create, access, and instantly share child porn images worldwide at the click of a button, but the damage is devastating and long-lasting,” said Senator Greenstein. “Whether it’s distributing one image or a thousand, child pornography is a crime. Enforcing harsher penalties will serve as a deterrent to the exploitation of children on a larger scale.”

Sex Offender Treatment

Under the bill, 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.

Currently, a psychological examination is ordered for offenders convicted of a number of sex offenses which include the distribution of child pornography but not for possession of child pornography. 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, and judges are currently required to order a psychological examination of certain sex offenders to determine if referral to the ADTC is appropriate.

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