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

SPONSOR Lopez

ORIGINAL DATE

LAST UPDATED

1/30/07

2/15/07 HB

SHORT TITLE Study Child Pornography Generated in New Mexico SB SJM 18

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)

SUMMARY

Synopsis of Bill

Senate Joint Memorial 18 requests that the Attorney General convene a task force to study the

technological sophistication of virtual or computer-generated pornography in New Mexico, its

impacts on New Mexico’s children and the extent to which it supports the child pornography

market. The task force shall include the attorney general or designee, secretary of public safety

or designee, a representative from the administrative office of the district attorneys and any other

entities deemed necessary.

The task force’s study is to include the following:

1.

Pervasiveness and technological sophistication of virtual or morphing technology in child

pornography in New Mexico and its effects on the child pornography market;

2.

Extent to which morphed images are used by abusers to seduce, molest, entice or lure

children;

3.

extent of physical, emotional and psychological harm caused to identifiable child victims

who are depicted in morphed images; and

4.

extent to which abusers of actual children are able to successfully evade prosecution by

claiming that there is reasonable doubt as to whether or not the children are able to

successfully evade prosecution by claiming that there is reasonable doubt as to whether

Senate Joint Memorial 18 – Page

2

or not the children depicted are real or computer-generated.

The task force is to present its finding and recommendations for proposed legislation to an

appropriate interim committee no later than November 1, 2007.

FISCAL IMPLICATIONS

As drafted, SJM 18 requires the Attorney General to convene a task force to study the issues in

the area of computer generated child pornography, but provides no appropriation for additional

staff.

SIGNIFICANT ISSUES

This memorial seeks to study the extent and impact of computer-generated pornography in New

Mexico. Because of the risks of using real children in sexually explicit depictions, there is a

growing trend to use computer models or to morph children’s faces and heads onto sexually

explicit images.

In 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 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 his Free Speech concurrence, Justice Thomas also noted that the government’s most

persuasive argument in support of the legislation banning computer generated pornography was

that “persons who possess and disseminate pornography images of real children may escape

conviction by claiming that the images are computer generated, thereby raising a reasonable

doubt as to their guilt." Free Speech at 259 (Thomas, J., concurring). However, Justice Thomas

also noted that the government had pointed to no case in which such a defense was successful

but noted that “technology may evolve to the point where it becomes impossible to enforce

actual child pornography laws because the Government cannot prove that certain pornographic

images are of real children." Id.

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 (8

th

Cir. 2005) (defendant’s conviction was upheld where the image shown

Senate Joint Memorial 18 – Page

3

the head of a well known child entertainer morphed upon the photograph of a sexually explicit

photograph of a young nude boy – the court found that the image involved a real child who was

victimized every time the photograph was displayed).

The only New Mexico appellate case to address child pornography in detail, State v. Rendleman,

2003-NMCA-150, 134 N.M. 744, read an obscenity standard into child pornography in New

Mexico, but the issue of computer generated child pornography was not before the Court.

EO/mt