SANTA FE NEW MEXICAN Governor inks law to toughen child porn penalties

Offenders convicted of possessing, distributing and manufacturing child pornography in New Mexico will face tougher prison sentences after Gov. Susana Martinez signed a bill into law Thursday that increases penalties for such crimes.

Martinez, while praising the new law, said the state also needs a law that allows prosecutors to charge people who own child pornography for each image they possess. The initial version of the bill, introduced by state Reps. Sarah Maestas Barnes, R-Albuquerque, and Randal Crowder, R-Clovis, would have done this.

“While I supported the original legislation that would have closed the per-image loophole created by the Supreme Court’s decision,” Martinez said in a statement Thursday, referring to a 2014 ruling by the state’s high court in a child pornography case, “I believe this bill is an important step forward in protecting our children from exploitation.”

The law increases the sentence for possession of child pornography to 10 years from 18 months; increases the sentence for distributing child pornography to 11 years from three years; and increases the sentence for manufacturing child pornography to 12 years from nine years. It passed the Senate on a 40-0 vote and the House 64-0.

Under the new law, teenagers between 14 and 17 who send explicit images of themselves to one another will not be prosecuted for possession of child pornography. Senators added the exception in an amendment to the House bill, expressing concerns that teens engaging in consensual behavior could face criminal charges.

Martinez said in a statement Thursday that she does “not support the so-called ‘sexting amendment,’ as I believe the reasoning behind it is misinformed and it was not carefully considered.” But she said she did not have the authority to line-item veto that provision.

Debate on the exemption for teenagers sparked some of the highest drama of the 30-day legislative session that ended last week, with staffers for Attorney General Hector Balderas’ office walking out of a Senate committee hearing in protest. Later, on the Senate floor, Sen. Lisa Torraco, R-Albuquerque, moved to oust members of Balderas’ staff from the full Senate debate on the bill, saying, “The attorney general has not been helpful in this process.” Senators agreed, and Balderas’ staff members were barred from the floor.

Balderas said in a statement issued Thursday, “While I am in strong support of increased penalties for sexual exploitation of children, I have grave concerns about the consequences of legalizing dangerous behavior in teens as I expressed to the Governor and Legislature.”

The intent behind the initial bill came out of an April 2014 decision by the New Mexico Supreme Court, in which the justices ruled that the state could not charge two men for each image of child pornography that they possessed. The court ruled that the Legislature “has not clearly defined the unit of prosecution for possession of child pornography.”

The original bill, allowing separate charges for each explicit image, passed the House but underwent changes in the Senate after concerns about sending offenders to prison for life and increased prison costs.

U.S. law allows federal judges to sentence offenders based on the number of images they possessed, such as one sentence for those with up to 150 images and a harsher sentence for those found with between 150 and 300 images.

Sen. Torraco, a former prosecutor, said in an interview Thursday that she wanted to introduce a bill that would have created state sentencing guidelines similar to the federal guidelines. She also said she wanted to create a first-degree felony under the state law and supported the amendment on sexting.

“That was my proposal: Let’s make this in bulks of images because child pedophiles have thousands and thousands of images,” she said. “We didn’t file it as a bill. It was a discussion. And everyone rejected that idea and said, ‘No we just want it from zero to 10.’ ”

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