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Dangerous Loophole Left Open By Senate Democrats
Albuquerque, NM– Today’s Albuquerque Journal story highlights a scary yet important fact. Dangerous loopholes that leave the door open to child exploitation are still in New Mexico’s statutes. HB 440 would have closed a dangerous loophole dealing with child pornography. Unfortunately, it never left the State Senate.
“Senator Sanchez owes an explanation on why this legislation was held up,” said Pat Garrett, spokesman for the Republican Party of New Mexico. This was a bipartisan bill that would have closed a dangerous loophole, and we saw no action in the State Senate— shameful.”
Kiddie porn case points to NM law loophole
The Albuquerque Journal
By: Scott Sandlin
May 7, 2015
The images aren’t easy to watch.
In the words of one attorney, “You can’t unsee” the pictures.
A girl of about 9 stood in front of a red background, vamping for the camera as she pulled off her clothes to expose her undeveloped breasts, then bent over to display herself to the camera.
There were more – and much worse – photos that led 2nd District Judge Judith Nakamura this week to convict Thomas Dolphus of possessing a visual medium of sexual exploitation of children under 18 and two counts of manufacturing the same. Many images showed children under 10, and some of them involved animals.
Despite the conviction obtained by the Attorney General’s Office on three counts – which could bring Dolphus 19 1Ž2 years in prison – prosecutors remain frustrated at what they believe is a loophole in the state’s child pornography laws.
Dolphus originally faced 60 counts of child pornography, but some were dismissed based on the statute of limitations and others because a state Supreme Court decision from 2014 ruled that an ambiguity in the kiddie porn statute meant criminal charges could not be tied to the number of images in a download.
Republican Rep. Sarah Maestas Barnes of Albuquerque and Democratic Rep. Javier Martinez of Albuquerque introduced legislation that would have made each depiction of a child engaged in a prohibited act an individual criminal offense.
The bill,, HB 440, passed the House, 64-0, but was never taken up in the Senate.
Attorney General Hector Balderas supported the legislation.
“The court’s opinion caused multiple counts of possession in this prosecution to be reduced to one,” he said in a statement. “My office fought hard to close this unacceptable gap. … A truly just result would be to hold an offender accountable for each and every image they possess that a child had to be victimized to create.”
Defense lawyers are opposed to changing the law, arguing that the harm is the same whether it’s one image or many.
“The possession and distribution of child pornography is a very serious and hurtful crime. But punishment should reflect the magnitude of the crime,” said Bennett Baur, past president of the New Mexico Criminal Defense Lawyers Association. “Should a person who downloads seven images in one instant face more prison time than a person who actually rapes a child?
“We believe that the answer to that is no.”
Under New Mexico law, downloading something from the Internet is considered production or manufacture.
Dolphus, a 51-year-old physical therapist, agreed to a nonjury trial after more than two years in custody and three lawyers before Jonathan Miller, the attorney who represented him at trial.
The case originated in April 2012 after Dolphus’ then-girlfriend found recordable compact discs titled “Child’s Play” and “Just CP” while looking for a card she used to gain access to the laundry room in the apartment complex.
She thought it was a horror movie involving Chuckie the doll, but that puzzled her, too, because her boyfriend and roommate was not a fan of scary movies.
One of her discoveries was a video clip of a young girl urinating on herself, and a boy about 10 touching a woman in private places. Among scenes shown at the nonjury trial were those of children engaged in sexual acts.
The girlfriend anguished with friends before deciding to call police, who obtained a search warrant for the couple’s apartment and took away a computer CPU, DVDs and recordable discs, floppy disks, thumb drives, a computer and an Olympus picture card.
Police interviewed Dolphus, who had waived his right to an attorney. He denied getting sexual gratification from the images or trading them. He said he had downloaded the images 10 years earlier on multiple occasions and kept them for occasional viewing “because he ‘found the unfindable,’ ” according to a criminal complaint.
Assistant Attorney General Anthony Long said in his closing argument that Dolphus had admitted to possessing the collection of images that had no artistic merit and clearly were obscene.
“This is not a harmless vacation photo,” he said of the girl who was stripping.
Nakamura ordered a pre-sentencing report on Dolphus and scheduled sentencing for Sept. 9.