CARSON CITY, Nev. – Gov. Jim Gibbons signed into law yesterday a bill to amend the state's child pornography laws to criminalize anyone who "knowingly ... uses the Internet to control [or view] any film, photograph or other visual presentation depicting a person under the age of 16 years engaging in or simulating sexual conduct."
For the Nevada law, "sexual conduct" includes "lewd exhibition of the genitals" besides all of the more active forms of sex for criminal (but, interestingly, not civil) liability.
The law apparently is an attempt to impose criminal sanctions on Internet users who have remnants of child porn in their computer's cache, since prior Nevada law allowed only prosecution of those who had downloaded such material to their hard drives, and the federal courts have split over whether material found only in a cache is prosecutable.
Civil libertarians, of course, will seize immediately on the use of the word "depicting," since it suggests that the law could be applied to images of adults who appear younger, and under Ashcroft v. Free Speech Coalition, it seems unlikely that that portion of the law could survive a federal lawsuit.
However, the bill – Assembly Bill 88 – also provides for civil lawsuits by anyone under the age of 18 "depicted" in sexual conduct in such a "play, film, photograph, computer-generated image, electronic representation, dance or other visual presentation" against anyone who "knowingly and willfully" either promoted the performance, possessed a copy of it, or "controlled" it with the "specific intent" to view it on the Internet – and for anyone who can convince a jury that he/she suffered "personal or psychological injury" as a result of having appeared in the performance "may recover his [sic] actual damages, which shall be deemed to be at least $150,000, plus attorney's fees and costs."
There are a couple of limitations on the right to sue, though. A lawsuit to recover damages for actual sexual abuse of a minor must be filed within 10 years after the plaintiff turns 18 ... or "discovers or reasonably should have discovered that his [sic] injury was caused by the sexual abuse, whichever occurs later," while a suit charging that the defendant "promoted," "possessed" or "controlled" a performance depicting the minor must be filed within three years after either a court verdict in a related criminal case or the plaintiff turns 18, again whichever is later.
According to an article in the Las Vegas Review-Journal, however, not everyone thinks the new law is such a great idea.
"I'm a nasty guy, and I hate my neighbor," hypothesized Assemblyman Harry Mortenson of Las Vegas. "So I tell him to go punch in this address, and he goes there and he says, 'This is terrible,' and shuts down his computer. Then I call the police and say, 'He's a pornographer, go check his computer.' He's going to be in a lot of trouble, and he's going to be an innocent guy."
Indeed, short of peeping in someone's window, the only ways for a person to be found to have "controlled" a visual depiction with the "specific intent" to view it on the Internet would be if a friend or family member turned the person in, or if the person brought his/her computer to a repair person and that person discovered the material, or links to it, during the repair process.
The law passed the Assembly 38-4 – including a "Yea" from Mortenson – and the Senate 21-0, and will apparently take effect immediately.
