0Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

F I S C A L I M P A C T R E P O R T

SPONSOR Gardner

ORIGINAL DATE

LAST UPDATED

2/2/07

2/26/07 HB 336/aHJC

SHORT TITLE

Prohibit Certain Uses of Images of Children

SB

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

Corrections Department (CD)

Administrative Office of the District Attorneys (AODA)

Administrative Office of the Courts (AOC)

Public Defender Department (PDD)

Department of Public Safety (DPS)

SUMMARY

Synopsis of HJC Amendment

House Judiciary Committee Amendment

inserts the underlined into the following:

•

It is unlawful for a person to intentionally manufacture any obscene visual or print

medium depicting any prohibited sexual act or simulation of such an act if that person

knows or has reason to know that the obscene medium depicts a prohibited sexual act or

stimulation of such an act and if that

person knows or has reason to know that a real

child

under eighteen years of age, who is not a participant, is depicted as a participant in that

act. A person who violates the provisions of this subsection is guilty of a fourth degree

felony.

Synopsis of Original Bill

House Bill 336, Prohibit Certain Uses of Images of Children, seeks to amend the criminal statute

outlawing sexual exploitation of children to add provisions to outlaw images that depict children

House Bill 336/aHJC – Page

2

who are not actually participants in the displayed sexual activity. This technique, commonly

known as “morphing", is used to digitally morph children’s faces or other body parts onto actual

depictions of sexual activity so that it appears that the children are engaging in the sexual

activity.

SIGNIFICANT ISSUES

The Public Defender Department notes that NMSA 1978, § 30-6A-3 already penalizes the

manufacture or distribution of pornography depicting actual children. This bill would most

likely be found unconstitutional under the First Amendment in light of Ashcroft v. Free Speech

Coalition, 535 U.S. 234, 122 S.Ct 1389 (2002).

The Attorney General’s Office draws attention to the following cases.

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court declined to extend

New York v. Ferber, 458 U.S. 747 (1982), to computer generated or virtual child pornography.

Ferber held that there was no First Amendment right to possess or generate child pornography

and that states could legally pass content-based regulations banning it. Ferber depended upon a

wealth of empirical evidence as to harm generated by child pornography. In Free Speech, the

Court found this empirical evidence did not extend to virtual child pornography where no actual

children are depicted. However, as to morphing the Court noted in dicta:

“Section 2256(8)(C) [of the federal Child Pornography Prevention Act of 1996] prohibits

a more common and lower tech means of creating virtual images, known as computer

morphing. Rather than creating original images, pornographers can alter innocent

pictures of real children so that the children appear to be engaged in sexual activity.

Although morphed images may fall within (8

th

Cir. 2005) (defendant’s conviction was

upheld where the image shown the head of a well known child entertainer morphed upon

the photograph of a sexually explicit photograph of a young nude boy – the court the

definition of virtual child pornography, they implicate the interests of real children and

are in that sense closer to the images in Ferber. Respondents do not challenge this

provision, and we do not consider it."

Id. at 242. See also, United States v. Sims, 428 F.3d 945, 956 n.4 (10

th

Cir. 2005) (noting that

Free Speech expressly did not decide the constitutionality of morphing).

In the wake of Free Speech, most courts now find that the government must be able to prove that

a real child was depicted and therefore harmed. It need not be an identifiable victim, i.e. one that

can come to court to testify, but must be a real child that was harmed. See e.g., United States v.

Bach, 400 F.3d 622 found that the image involved a real child who was victimized every time

the photograph was displayed).

PERFORMANCE IMPLICATIONS

The Corrections Department reports that it may impact programs if there were increased

convictions. In the Albuquerque area, there is a sex offender supervision unit or program that

supervises 25 offenders at the extreme and high levels of supervision and 50 offenders at the

medium and low levels of supervision. The other areas of the state do not have a specialized

unit, and this requires sex offenders in the rest of the state to sometimes have to be supervised by

probation and parole officers with larger caseloads.

House Bill 336/aHJC – Page

3

TECHNICAL ISSUES

One suggestion presented by the AGO is to explicitly include the term “morphing" and draft an

accompanying definition in the statute to avoid any claim of confusion.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

The gap in the current law will continue to be available to predators that use the current law and

technology to pursue their criminal enterprise and further victimize children and society.

EO/mt