CONCORD — Lawmakers took no action on a Senate-passed bill that would have unintentionally decriminalized the act of an adult sending a sexually explicit image to a child.
The legislation the Senate passed last month (HB 296) would have reduced to a violation the first offense of sending an unwanted image to a child. The violation would carry a fine but no prison time.
All seven state laws governing child pornography, illegal sexual contact and similar crimes upon conviction are at least criminal misdemeanors that mean up to a year in jail, and most of them are felonies carrying even longer prison terms.If House and Senate negotiators had gone forward with that change, the Coalition Against Domestic and Sexual Violence would have urged Gov. Chris Sununu to veto it, according to Amanda Grady Sexton, the group’s director of public affairs.
“If it were to pass, a 65-year-old man who sends a nude picture of himself to an 11-year-old child could be charged with a violation level offense which, of course, is not a crime in New Hampshire,” Sexton said.
“I assume that is not what anyone attempted to do with this bill.”
Attorney General John Formella’s office, county prosecutors and anti-domestic violence advocates had offered an amendment Wednesday to fix the bill and restore all offenses to at least a misdemeanor crime and a felony when it involves children.
House Criminal Justice and Public Safety Committee Chairman Daryl Abbas, R-Salem, offered the amendment and admitted the House-passed version of the same bill was now unacceptable to him.
The amendment discussed Wednesday would have made sending unwanted images to a child a Class B felony that carries up to a seven-year term in prison. It would also require the person to register as a sex offender.
“I am not going to vote for what we passed in the House; I think what this does is fix the problem,” Abbas said during conference committee talks.
“I don’t think we want to let a child receive an unsolicited image of a sex act end up being a violation. That becomes such a low priority for law enforcement.”
Senate Judiciary Committee Chairman Sharon Carson, R-Londonderry, said there wasn’t enough time to explore how these changes would mesh with the laws already on the books.
These House-Senate committees have until Thursday at 4 p.m. to complete their work on compromise bills.
Sending lewd photos online to others has become commonplace, Carson said. “This is a very important piece of legislation, and we want to be very careful what we are doing,” Carson said.
“We know in today’s society, people do this all the time.”
Carson was concerned the amendment could make more adults have to register as sex offenders for sending an image that was not intended to harass anyone.
“I don’t want to create a law that is going to catch a lot of innocent people who made a simple mistake,” Carson said.
The Senate only heard from advocates after it had passed its version of the bill, she said.
Existing laws already provide felony crimes for those who send sexually explicit images to children, Carson said.
The House and Senate conferees agreed to drop the bill and report to the Legislature that they could not reach an agreement.
Abbas said he would cosponsor the amendment he had offered as a new bill in the 2022 session.
Grady Sexton said this legislation was not fixing a “glaring loophole” in the law.
“I’m glad it was caught at this point, and we are happy to help if there is future legislation going forward,” she added.