February 16, 2016

AG’s office walks out over change to child porn bill

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Matthew Reichbach

A successful amendment to a bill to crack down on child porn caused staffers from a key state agency to storm out of the committee room in apparent protest.

New Mexico Attorney General Hector Balderas. Courtesy photo.

Courtesy photo

New Mexico Attorney General Hector Balderas. Courtesy photo.

After lawmakers in the Senate Finance Committee voted to exempt teenage sexting from a measure increasing penalties on possession of child porn, Clara Moran, the division director for special prosecutions at the state Attorney General’s office and others from that office walked out of the committee room.

Related Story: AG gives explanation for child porn bill walkout

Until that point, Moran acted as the expert witness for sponsors and Reps. Sarah Maestas Barnes, R-Albuquerque, and Javier Martinez, D-Albuquerque.

Sen. George Munoz, D-Gallup, was not pleased.

“I’ve been here eight years and I’ve never seen a state department leave on a bill as critical as this,” Munoz, who authored the amendment, said. “It’s an embarrassment. It’s a joke.”

Still, the committee passed the bill unanimously. It now goes to the Senate floor, though would need concurrence from the House before being sent to Gov. Susana Martinez’s desk.

The Senate panel then passed the bill unanimously without Attorney General Hector Balderas’ support. Balderas has pushed hard for closing what he’s called a loophole in the state’s child exploitation statute for two years.

“Attorney General staff walked out in support of stronger protections for children,” Attorney General spokesman James Hallinan told NM Political Report.

In a prepared statement, Balderas denounced the amendment.

“I cannot support an amendment that weakens protections for teenagers from predatory activity, creates a dangerous new child exploitation loophole, and places New Mexico’s federal Internet Crimes Against Children Task Force funding in jeopardy,” Balderas said.

He also criticized Munoz for creating “political distractions.”

The bill toughens penalties for possessing child pornography to up to 10 years, distributing child pornography up to 11 years and manufacturing up to 12 years. Though the bill was moving forward throughout this session, lawmakers had been raising concerns, including being attacked politically for voting against the legislation despite what they saw as flaws.

In Senate Judiciary Committee last week, Sens. Lisa Torraco, R-Albuquerque, and Cisco McSorley, D-Albuquerque, expressed objections over not exempting teenage sexting.

“The 17-year-old taking a sexually exploitive photo to her 18-year-old boyfriend, he opens the phone and it’s child porn,” Torraco said at the time.

She later added: “The problem I have if I vote for against it here, all the bloggers and my election opponent will say I voted against child exploitation.”

McSorley mentioned being a “furious parent” with an experience he recently had.

“I saw some pictures on my daughter’s phone that made me mad,” he said. “But those kids don’t deserve to be in jail.”

Sarah Maestas Barnes

NM Political Report

Rep. Sarah Maestas Barnes, R-Albuquerque

In the meeting last week, the Senate Judiciary Committee voted unanimously to pass the bill with the hopes that it would be amended by the time it got to the Senate floor.

Those same reservations continued today, with organizations like the American Civil Liberties Union of New Mexico, the New Mexico Center on Law and Poverty, the state Law Offices of the Public Defender and the New Mexico Criminal Defense Lawyers Association supporting the amendment.

A representative from the state Children, Youth and Services Department testified that only 10 people have been prosecuted under the existing state child exploitation law in the past three years. None of those cases involved minors relating to sexting issues, CYFD General Counsel Michael Heitz testified.

But Kim Chavez Cook of the Law Officers of the Public Defender contradicted the testimony, saying that several defense lawyers told her organization that they had represented clients who were minors relating to sexting issues. Similar problems have happened nationwide.

“This amendment does nothing to limit prosecuting trickle-down photos,” Cook said, referring to sexting images that go into unwanted hands.

So-called trickle-down photos were one of the warnings staffers at the Attorney General’s office said could happen under such an exemption. One staffer warned of the scenario of minors being forced by adults to produce child porn images as a potential loophole to the amendment, saying “it’s going to cause a nightmare for my prosecution agency.”

But senators on the finance committee, save Pete Campos, D-Las Vegas who voted against the amendment, weren’t buying the argument.

“These kids are active at this age,” Sen. Sue Wilson Beffort, R-Sadia Park, said. “If you are a parent of a boy who goes to jail, it’s really serious.”

She said such an amendment wasn’t akin to the Legislature saying they’re legalizing teen sexting.

Both Maestas Barnes and Martinez said they could accept the amendment.