AG opposes teen 'sexting' exception in bill

Milan Simonich
The Santa Fe New Mexican
Winter legislative session

SANTA FE – In a cantankerous hearing Tuesday night, a Senate committee approved a bill to increase penalties for those who manufacture, distribute and possess child pornography, but not until adding an exception for consensual cases of teenage "sexting."

The amendment so upset members of Democratic state Attorney General Hector Balderas' staff that they walked out in protest.

Sen. George Muñoz, D-Gallup, called the behavior by Balderas' staff "a joke" and told the bill's sponsor, Rep. Sarah Maestas Barnes, "It's an embarrassment that they did that to you."

A spokesman for Balderas later said in an email: The "attorney general staff walked out of committee in support of stronger protections for New Mexico children." Then Balderas himself sent a statement that said in part: "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."

Maestas Barnes, R-Albuquerque, originally sought to allow prosecution of defendants for every individual image of child pornography that they possessed. She said some defendants with large numbers of pictures have drawn sentences from no prison time to 18 months. Her bill got out of the Republican-controlled House of Representatives intact, but it has been heavily amended in the Senate and criticized by a senator from her own party.

Sen. Lisa Torraco, R-Albuquerque, in a previous hearing, said Maestas Barnes' bill was flawed because it wasn't tough enough on manufacturers of child porn, and because cases of teens texting explicit pictures to a boyfriend or girlfriend could have been subject to prosecution.

Maestas Barnes reluctantly accepted Senate rewrites of the bill. It now calls for a 10-year prison term for possession, 11 years for distribution and 12 years for "manufacturing" lewd images of children..

Maestas Barnes on Tuesday night gave halfhearted support to Muñoz's amendment in the Senate Finance Committee, so that teens ages 14 through 17 in consensual boyfriend-girlfriend relationships would not be prosecuted for texting photos that might be construed under other circumstances as child exploitation.

Clara Moran, a prosecutor on the attorney general's staff, testified that her office opposed the amendment. She said the Children, Youth and Families Department had no cases in the last three years in which texting byplay between teenagers had led to criminal offenses. But a spokeswoman for defense attorneys countered that those sorts of prosecutions of teenagers had occurred.

Muñoz at one point talked of withdrawing his amendment. But Sen. Sue Wilson Beffort, R-Sandia Park, said she would filibuster the bill unless it contained a provision to head off prosecutions of teens who did something stupid but without criminal intent.

Beffort said she feared teenage boys would end up being prosecuted because of a complaining parent with clout. "It strikes a terrible nerve with me. It is a fairness issue," Beffort said.

Senators on the Finance Committee approved the amendment 9-1. Sen. Pete Campos, D-Las Vegas, dissented.

After that, Moran and other members of the attorney general's staff walked out, leaving Maestas Barnes to answer any other questions from the committee.

The attorney general for two days had sent news releases calling on the committee to approve the bill without amending it. But he didn't attend the hearing, prompting Muñoz to criticize Balderas. "If he cared so much, why isn't he here? He sends his little henchmen."

Balderas' spokesman, James Hallinan, said Balderas did not attend the hearing "because he sent his staff."

With less than two days remaining in the session, the amended bill goes to the full Senate.