New Jersey-2014-S138-Introduced

An Act concerning the reproduction of child pornography and amending N.J.S.2C:24-4.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:24-4 is amended to read as follows:

2C:24-4. Endangering Welfare of Children.

a. Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c.119, s.1 (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

b. (1) As used in this subsection:

"Child" means any person under 16 years of age.

"Internet" means the international computer network of both federal and non-federal interoperable packet switched data networks.

"Prohibited sexual act" means

(a) Sexual intercourse; or

(b) Anal intercourse; or

(d) Bestiality; or

(e) Sadism; or

(f) Masochism; or

(g) Fellatio; or

(h) Cunnilingus;

(i) Nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction; or

(j) Any act of sexual penetration or sexual contact as defined in N.J.S.2C:14-1.

"Reproduction" means, but is not limited to, computer generated images.

(2) (Deleted by amendment, P.L.2001, c.291).

(3) A person commits a crime of the second degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance. If the person is a parent, guardian or other person legally charged with the care or custody of the child, the person shall be guilty of a crime of the first degree.

(4) Any person who photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act is guilty of a crime of the second degree.

(5) (a) Any person who knowingly receives for the purpose of selling or who knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers or agrees to offer, through any means, including the Internet, any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the second degree.

(b) Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree.

(6) For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of 16 in any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of 16. If the child who is depicted as engaging in, or who is caused to engage in, a prohibited sexual act or simulation of a prohibited sexual act is under the age of 16, the actor shall be strictly liable and it shall not be a defense that the actor did not know that the child was under the age of 16, nor shall it be a defense that the actor believed that the child was 16 years of age or older, even if such a mistaken belief was reasonable.

c. (1) In any criminal proceeding, any property or material depicting a prohibited sexual act involving a child, as defined in subsection b. of this section, shall remain in the care, custody, and control of either the State or the court.

(2) (a) Notwithstanding the Rules of Court, the court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes a prohibited sexual act involving a child, as defined in subsection b. of this section, so long as the State makes the property or material reasonably available to the defendant.

(b) For the purposes of subparagraph (a) of this paragraph, property or material shall be deemed to be reasonably available to the defendant if the State provides ample opportunity for inspection, viewing, and examination at a State or government facility of the property or material by the defendant, the defendant's attorney, or any individual the defendant may seek to qualify to furnish expert testimony at trial.

(cf: P.L.2001, c.291, s.1)

2. This act shall take effect on the first day of the second month after enactment.

STATEMENT

This bill prohibits the reproduction of child pornography for purposes of discovery in a criminal case. It is modeled on a provision of the federal Adam Walsh Child Protection and Safety Act of 2006.

The bill requires the court to deny, notwithstanding the Rules of Criminal Practice, a request by the defendant to duplicate or reproduce any property or material that constitutes child pornography, so long as the prosecutor makes the property or material "reasonably available" to the defendant. Property or material would be deemed to be reasonably available if the State provides ample opportunity for inspection, viewing, and examination at a government facility of the property or material by the defendant, his or her attorney, or an expert witness who will testify at trial.

In enacting the federal statute, the United States Congress noted that the "vast majority of child pornography prosecutions involve images on computer hard drives, computer disks and related media." Congress further stated that every time a child pornography image is viewed it constitutes another violation of the victim's privacy and a repetition of the original abuse. The findings also note that child pornography is contraband per se and should not be copied by the defendant or his or her attorney. In enacting this statute, Congress recognized the compelling governmental interest in protecting children from persons who would seek to sexually exploit them.