CHAPTER 323

SB 495-FN – FINAL VERSION

03/20/08 1066s

30Apr2008… 1456h

06/04/08 2099CofC

06/05/08 2184eba

2008 SESSION

08-2637

04/09

SENATE BILL 495-FN

AN ACT prohibiting Internet solicitation and exploitation of children.

SPONSORS: Sen. Foster, Dist 13; Sen. Letourneau, Dist 19; Sen. DeVries, Dist 18; Rep. Welch, Rock 8; Rep. W. Knowles, Straf 6

COMMITTEE: Judiciary

AMENDED ANALYSIS

This bill:

I. Increases the penalties for possession of images of a child engaging in sexually explicit conduct.

II. Establishes penalties for manufacture and distribution of images of a child engaging in sexually explicit conduct.

III. Redefines “visual representation” of sexually explicit images.

IV. Increases the penalties for use of the Internet or other computer service to seduce, solicit, lure, or entice a child or a person believed to be a child to commit a sexual assault.

V. Requires sexual offenders and offenders against children to report any online identifiers used.

VI. Permits the department of safety or a local law enforcement agency to verify the address of a sex offender through in-person contact at the offender’s home or residence.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/20/08 1066s

30Apr2008… 1456h

06/04/08 2099CofC

06/05/08 2184eba

08-2637

04/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eight

AN ACT prohibiting Internet solicitation and exploitation of children.

Be it Enacted by the Senate and House of Representatives in General Court convened:

323:1 Child Pornography; Definitions. RSA 649-A:2 and RSA 649-A:3 are repealed and reenacted to read as follows:

649-A:2 Definitions. In this chapter:

I. “Child” means any person under the age of 18 years.

II. “Disseminate” means to import, publish, produce, print, manufacture, distribute, sell, lease, exhibit, or display.

III. “Sexually explicit conduct” means human masturbation, the touching of the actor’s or other person’s sexual organs in the context of a sexual relationship, sexual intercourse actual or simulated, normal or perverted, whether alone or between members of the same or opposite sex or between humans and animals, or any lewd exhibitions of the buttocks, genitals, flagellation, bondage, or torture. Sexual intercourse is simulated when it depicts explicit sexual intercourse that gives the appearance of the consummation of sexual intercourse, normal or perverted.

IV. “Visual representation” means any visual depiction, including any photograph, film, video, digital image, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where:

(a) The production of such visual depiction involves the use of a child engaging in or being engaged in sexually explicit conduct; or

(b) Such visual depiction is a digital image, computer image, or computer-generated image of a child engaging in or being engaged in sexually explicit conduct; or

(c) Such visual depiction has been created, adapted, or modified to appear that an identifiable child is engaging in or being engaged in sexually explicit conduct.

V.(a) “Identifiable child” means a person:

(1) Who was a child at the time the visual depiction was created, adapted, or modified; or

(2) Whose image as a child was used in creating, adapting, or modifying the visual depiction; and

(3) Who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature.

(b) The term “identifiable child” shall not be construed to require proof of the actual identity of the identifiable child.

VI. “Previous conviction” or “previously convicted” means having been convicted by a jury or a judge, or having plead guilty prior to the commission of the current offense. For purposes of this paragraph, a previous conviction need not have been affirmed on appeal.

VII. “Computer” means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.

649-A:3 Possession of Child Sexual Abuse Images.

I. No person shall knowingly:

(a) Buy, procure, possess, or control any visual representation of a child engaging in sexually explicit conduct; or

(b) Bring or cause to be brought into this state any visual representation of a child engaging in sexually explicit conduct.

II. An offense under this section shall be a class A felony if such person has had no previous convictions in this state or another jurisdiction for the conduct prohibited by paragraph I. Upon conviction of an offense under this section based on an indictment alleging that the person has been previously convicted of an offense under this section or a reasonably equivalent offense in another jurisdiction, the defendant may be sentenced to a maximum sentence not to exceed 20 years and a minimum sentence not to exceed 1/2 of the maximum sentence.

III. It shall be an affirmative defense to a charge of violating paragraph I of this section that the defendant:

(a) Possessed less than 3 images of any visual depiction proscribed by that paragraph; and

(b) Promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof:

(1) Took reasonable steps to destroy each such visual depiction; or

(2) Reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

323:2 New Sections; Child Pornography; Distribution and Manufacture of Child Sexual Abuse Images. Amend RSA 649-A by inserting after section 3 the following new sections:

649-A:3-a Distribution of Child Sexual Abuse Images.

I. No person shall:

(a) Knowingly sell, exchange, or otherwise transfer, or possess with intent to sell, exchange, or otherwise transfer any visual representation of a child engaging in or being engaged in sexually explicit conduct;

(b) Knowingly publish, exhibit, or otherwise make available any visual representation of a child engaging in or being engaged in sexually explicit conduct.

II.(a) If such person has had no previous convictions in this state or another state for the conduct prohibited by paragraph I, the defendant may be sentenced to a maximum sentence not to exceed 20 years and a minimum sentence not to exceed 1/2 of the maximum. Upon conviction of an offense under this section based on an indictment alleging that the person has been previously convicted of an offense under this section or a reasonably equivalent offense in an out-of-state jurisdiction, the defendant may be sentenced to a maximum sentence not to exceed 30 years and a minimum sentence not to exceed 1/2 of the minimum.

(b) If such person has no previous convictions in this state or another state for the conduct prohibited in paragraph I, and is convicted under subparagraph I(b) with having less than 3 images or visual representations, the defendant will be guilty of a class B felony.

III. Nothing in this chapter shall be construed to limit any law enforcement agency from possessing or displaying or otherwise make available any images as may be necessary to the performance of a valid law enforcement function.

649-A:3-b Manufacture of Child Sexual Abuse Images.

I. No person shall knowingly create, produce, manufacture, or direct a visual representation of a child engaging in or being engaged in sexually explicit conduct, or participate in that portion of such visual representation that consists of a child engaging in or being engaged in sexually explicit conduct.

II. If such person has had no previous convictions in this state or another state for the conduct prohibited in this section, the defendant may be sentenced to a maximum sentence not to exceed 30 years and a minimum sentence not to exceed 1/2 of the maximum. Upon conviction of an offense under this section based on an indictment alleging that the person has been previously convicted of an offense under this section or a reasonably equivalent offense in an out-of-state jurisdiction, a person may be sentenced to life imprisonment or for such term as the court may order.

323:3 New Sections; Child Pornography; Proving Age of Child; Discovery. Amend RSA 649-A by inserting after section 5 the following new sections:

649-A:6 Proving Age of Child. Whether a child depicted in a visual representation is a minor for the purposes of this chapter is a question of fact for the jury and may be found by expert or lay testimony, or by viewing the images.

649-A:7 Discovery.

I. In any criminal proceeding, any material that constitutes a visual representation of a child engaging in or being engaged in sexually explicit conduct shall remain in the care, custody, and control of the state or the court.

II. The state shall provide ample opportunity for the defendant, his or her attorney, or any individual the defendant may seek to qualify to furnish expert testimony at trial, or any expert retained in anticipation of criminal litigation or for preparation for trial, to inspect, view, and examine the property or material at a state facility.

III. Upon a defense motion or by agreement of the parties establishing that it is necessary to copy, photograph, duplicate, or otherwise reproduce such material or property in order to prepare a defense, the court may authorize such action, provided that the court’s order include a protective order prohibiting disclosure of the material or property to any one other than the defendant, his or her attorney, or any individual the defendant may seek to qualify to furnish expert testimony at trial, or any expert retained in anticipation of criminal litigation or for preparation for trial. The court protective order shall require that all such material or property provided to the defense be kept secure against theft and inadvertent disclosure to any other person and be maintained in a manner which deters copying or dissemination. Any person either handling or viewing such material or property shall sign a non-disclosure agreement agreeing to refrain from copying or publishing any visual representation of a child engaging in or being engaged in sexually explicit conduct. Any person who views any of the images shall certify in writing that he or she has not knowingly kept any material or property which would qualify as an image of child sexual abuse under state or federal law, and that all materials, property, and signed non-disclosure agreements shall be returned to the state at the end of the case.

323:4 Computer Pornography and Child Exploitation Prevention; Certain Uses of Computer Services Prohibited. RSA 649-B:4 is repealed and reenacted to read as follows:

649-B:4 Certain Uses of Computer Services Prohibited.

I. No person shall knowingly utilize a computer on-line service, internet service, or local bulletin board service to seduce, solicit, lure, or entice a child or another person believed by the person to be a child, to commit any of the following:

(a) Any offense under RSA 632-A, relative to sexual assault and related offenses.

(b) Indecent exposure and lewdness under RSA 645:1.

(c) Endangering a child as defined in RSA 639:3, III.

II.(a) A person who violates the provisions of paragraph I shall be guilty of a class A felony if such person believed the child was under the age of 13, otherwise such person shall be guilty of a class B felony.

(b) A person convicted under paragraph I based on an indictment alleging that the person has been previously convicted of an offense under this section or a reasonably equivalent offense in an out-of-state jurisdiction shall be charged as a class A felony. If the indictment also alleges that the person believed that the child was under the age of 13, the person may be sentenced to a maximum sentence not to exceed 20 years and a minimum sentence not to exceed 10 years.

(c) If the person has been previously convicted 2 or more times for an offense under this section or a reasonably equivalent statute in another state, the person may be sentenced to a maximum term not to exceed 30 years.

III. It shall not be a defense to a prosecution under this section that the victim was not actually a child so long as the person reasonably believed that the victim was a child.

323:5 Indecent Exposure and Lewdness. RSA 645:1 is repealed and reenacted to read as follows:

645:1 Indecent Exposure and Lewdness.

I. A person is guilty of a misdemeanor if such person fornicates, exposes his or her genitals, or performs any other act of gross lewdness under circumstances which he or she should know will likely cause affront or alarm.

II. A person is guilty of a class B felony if:

(a) Such person purposely performs any act of sexual penetration or sexual contact on himself or herself or another in the presence of a child who is less than 16 years of age.

(b) Such person purposely transmits to a child who is less than 16 years of age, or an individual whom the actor reasonably believes is a child who is less than 16 years of age, an image of himself or herself fornicating, exposing his or her genitals, or performing any other act of gross lewdness.

(c) Having previously been convicted of an offense under paragraph I, or of an offense that includes the same conduct under any other jurisdiction, the person subsequently commits an offense under paragraph I.

III. A person shall be guilty of a class A felony if having previously been convicted of 2 or more offenses under paragraph II, or a reasonably equivalent statute in another state, the person subsequently commits an offense under this section.

323:6 New Section; Registration of Criminal Offenders; Online Identifiers. Amend RSA 651-B by inserting after section 4 the following new section:

651-B:4-a Registration of Online Identifiers. In addition to any other information a person who is required to register is required to provide pursuant to RSA 651-B:4, such person shall report any online identifier such person uses or intends to use. For purposes of this section, “online identifier” includes all of the following: electronic mail address, instant message screen name, user identification, user profile information, and chat or other Internet communication name or identity information. Such person shall report any changes to an existing online identifier, or the creation of any new online identifier to law enforcement before using the online identifier.

323:7 New Subparagraph; Registration of Criminal Offenders; Availability of Information to the Public. Amend RSA 651-B:7, II by inserting after subparagraph (b)(1)(E) the following new subparagraph:

(F) Any online identifiers, as defined in RSA 651-B:4-a, used by the individual.

323:8 School Employee and Volunteer Background Investigations. Amend RSA 189:13-a, V to read as follows:

V. Any person who has been convicted of any violation or attempted violation of RSA 630:1; 630:1-a; 630:1-b; 630:2; 632-A:2; 632-A:3; 632-A:4; 633:1; 639:2; 639:3; 645:1, [I(b),] II[,] or III; 645:2; 649-A:3; 649-A:3-a; 649-A:3-b; 649-B:3; or 649-B:4; or any violation or any attempted violation of RSA 650:2 where the act involves a child in material deemed obscene; in this state, or under any statute prohibiting the same conduct in another state, territory, or possession of the United States, shall not be hired by a school administrative unit, school district, or charter school. By decision of the appropriate governing body, a school administrative unit, school district, or charter school may deny a selected applicant a final offer of employment if such person has been convicted of any felony in addition to those listed above. The governing body may adopt a policy stating that any person who has been convicted of any felony, or any of a list of felonies, shall not be hired.

323:9 Registration of Criminal Offenders; Definitions. Amend RSA 651-B:1, V(b) to read as follows:

(b) RSA 169-B:41, II, 639:3, III, 649-A:3, 649-A:3-a, 649-A:3-b, 649-B:3, 649-B:4, or 650:2, II; or

323:10 Registration of Criminal Offenders; Duration of Registration. Amend RSA 651-B:6, I to read as follows:

I. Any sexual offender required to register as a result of a violation or attempted violation of RSA 632-A:2, 632-A:3, or 645:1, III, and any offender against children required to register as a result of a violation or attempted violation of RSA 169-B:41, II, 632-A:2, 633:1, 633:2, 639:2, 639:3, III, 645:2, II, 649-A:3, I, 649-A:3-a, 649-A:3-b, 649-B:3, 649-B:4, or 650:2, II, or of an equivalent offense in an out-of-state jurisdiction, shall be registered for life.

323:11 New Paragraph; Registration of Criminal Offenders; Release of Certain Sexual Offenders Into the Community. Amend RSA 651-B:3 by inserting after paragraph III the following new paragraph:

IV. In the discretion of the local law enforcement agency or the department, such agency or the department may affirmatively verify the address of any offender within that agency’s jurisdiction through in-person contact at the home or residence of the offender.

323:12 Contingent Name Change. If SB 418 of the 2008 legislative session becomes law, the reference to “charter school” in RSA 189:13-a, V shall be changed to “chartered public school.”

323:13 Effective Date.

I. Sections 6 and 11 of this act shall take effect January 1, 2009, at 12:01 a.m.

II. The remainder of this act shall take effect January 1, 2009.

Approved: July 2, 2008

Effective Date: I. Sections 6 and 11 shall take effect January 1, 2009, at 12:01 a.m.

II. Remainder shall take effect January 1, 2009.