Bills to upgrade penalties regarding child porn released

TRENTON – The Assembly Law and Public Safety Committee released bill A3735 and S2493, which revise the statutes concerning child pornography, to update and more closely harmonize state law with federal law governing these offenses.

This bill incorporates new terminology for child pornography; establishes new gradations and enhanced penalties applicable to child pornography possession, manufacturing and distribution offenses; and bases sentencing provisions on the number of items of child pornography involved, similar to federal law.

Unlike federal law, current state law makes no distinction between the collector of child pornography who possesses and views thousands of computer files or items and the individual who may possess or view only a handful of such files or items. The federal law grades child pornography possession based upon the number of files possessed, imposing more severe punishment on those who possess more files. Those who collect such items in large quantities bear a greater share of the responsibility for making the market more profitable and creating a demand that further encourages the creation of new child pornography, subjecting even more children to exploitation, according to the bill.

Current state law also makes no specific provision for repeat child pornography offenders. Moreover, current state law does not adequately address situations enabled by evolving computer technology, such as file-sharing programs and peer-to-peer networks that permit remote sharing of child pornography images among collectors.

Among other things, the bill revises current law as follows:

• Divides the child endangerment offense into two separate components. This revision will establish separate provisions for the offense of engaging in sexual conduct which would impair or debauch the morals of the child and for the offense of causing the child such harm that would make him or her an abused or neglected child. This provision also will simplify classification of the offender under Megan’s Law.

• Upgrades from a 2nd degree crime to a 1st degree crime causing or permitting a child to engage in a prohibited sex act or simulation for child pornography purposes, regardless of the offender’s relationship to the child. Under current law, the offense is considered a 1st degree crime only if the offender is a parent, guardian and person with care or custody of the child.

• Increases the age benchmark of “child” from 16 to 18, to conform New Jersey to the federal standard and the majority of other states.

• Replaces current terminology used to describe child pornography items with the more visceral phrase “item depicting the sexual exploitation or abuse of a child,” which is defined as a photograph, film, video, an electronic, electromagnetic or digital recording, an image stored or maintained in a computer program or file or in a portion of a file, or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act. This is a technical and clarifying revision to the statute.

• Reformulates the provisions governing the sale of child pornography to more closely parallel the penalty structure for distribution of drugs under state statutes, creating a provision penalizing distribution and another provision penalizing possession with intent to distribute.

• Defines the term “distribute” as to sell, or to manufacture, give, provide, lend, trade, mail, deliver, publish, circulate, disseminate, present, exhibit, display, share, advertise, offer, or make available via the Internet or by any other means, whether or not for pecuniary gain. This also is a technical and clarifying revision to the statute. In addition, the definition specifies that it includes an agreement or attempt to distribute.

Steve Finkel of the Attorney General’s Office said such legislation is much needed.

“To better combat it, I think we need better penalties.”

Bills to upgrade penalties regarding child porn released