Child pornography is a crime that has flourished in part due to the expansive reach of the Internet. The law on possession of child pornography is still evolving as both the courts and the Legislature attempt to catch up with the technology advances. The developing issues revolve around accessing the images, intent to access the images and the ease with which they can be downloaded.
Recently, the New Mexico Supreme Court addressed a case involving child pornography out of Clovis. In the Willard Ballard decision, the court ruled that prosecutors could not charge someone for each image that was downloaded from the Internet.
The issue is that one download could contain dozens of images of the same child. Ballard was charged with 51 counts of possession of child pornography, each a fourth-degree felony, convicted of 25 counts and sentenced to 37½ years in prison. The Ballard case created the so-called loophole Albuquerque prosecutors are frustrated with in the Thomas Dolphus case.
Ballard had taken his computer to a colleague to perform software updates and asked him to remove the images from his computer. His attempt to seek help triggered the charges against him. This raises the question, where do you go when these images turn up on your computer? While you may say that would never happen, consider this: Many not skilled in computer technology could become criminals with no intent to participate in the illegal behavior. It’s not farfetched – someone begins a search on Yahoo or Google about children and quickly ends up with unintended results.
That’s because people intentionally participating in the underground child pornography world do not openly advertise it because it is illegal. One of the ways they get the images on the Internet without detection is to label the child pornography something benign and nondescript.
Unfortunately, those not wise to their tricks can unwittingly click on a link about children and find themselves downloading images of child pornography with no intent to do so. Many of these downloads occur in a ZIP file and can contain hundreds of images.
It is generally accepted that the purpose of the law is to protect children from being used as sexual objects. But possession offenders have not been convicted of having any contact with children like those who manufacture child pornography. That is why there is a hierarchy in the child pornography sentencing scheme in which possession is the lowest offense and manufacture is the highest.
If we want to protect children, our focus should be on those manufacturing child pornography. Without manufacturing, there would be no photographs to possess. Under the 2015 bill, someone who downloads images, perhaps even unwittingly, could receive more prison time than a person who has direct contact with a child through manufacture or other crimes.
Modern technology makes manufacturing of child pornography much easier. This ease has created a new category of offender: Children (under the age of 18) are sending images of their own naked bodies to their girl/boyfriend with their smartphones, effectively making many teenagers both manufacturers and distributors of child pornography. If a high school senior takes 25 pictures of her breasts and sends them to her boyfriend, should she go to prison for 37½ years? Should she be a sex offender?
While we all want to protect children, any discussion of changes in the law should be focused on those crimes in which adults seek out and sexually exploit children. Due to the technological advances, we must be very careful that law-abiding citizens who unwittingly incur criminal charges and our teenagers do not become criminals by using their smartphones in their dating relationships. These are the unjust loopholes in the current law.
Unfortunately, HB 440 failed to address either of these issues and so, rightfully, failed to become law.