PROVIDENCE — In the final hours of this year’s legislative session, the General Assembly passed legislation making it a crime to produce or possess “child erotica” for the purpose of sexual arousal or gratification.
The American Civil Liberties Union and LGBTQ groups urged Governor Daniel J. McKee to veto the bill, noting Rhode Island already outlaws child pornography and calling the “child erotica” bill “extraordinarily vague.”
But McKee, a Democrat, signed the bill into law on Tuesday.
“The governor supports the measures in the bill that protect children and prevent future exploitation and sexual abuse by allowing law enforcement to properly investigate reports of child erotica, and identify those who seek to exploit children,” press secretary Alana O’Hare said Thursday.
Critics warn the law could be used to violate First Amendment rights and prosecute LGBTQ youth.
“It is one of the most poorly drafted criminal bills I have seen,” Steven Brown, executive director of the ACLU of Rhode Island, said on Thursday. “It is hard to grasp the magnitude of what this bill makes criminal.”
For example, he said, the law could potentially lead to the prosecution of a “doting grandmother” with a photo of her grandchild in a bathing suit if someone “uses that photo for sexual purposes.”
Also, he said, it could lead to the prosecution of an 18-year-old with photos of a 17-year-old boyfriend or girlfriend, and it could lead to prosecution of publishers of catalogs that show children in bathing suits, he said.
In a July 6 letter to McKee, Brown wrote that, “Child pornography is a scourge, but Rhode Island currently has strong laws on the books with severe criminal penalties related to this crime.” He warned that the “child erotica” ban would “carve out a completely new exception to the First Amendment” and “have the effect of chilling a wide range of protected speech.”
“The effect of this bill is to turn the government into thought police,” Brown wrote.
Under the new law, anyone 18 or older who “produces, possesses, displays or distributes, in any form, any visual portrayals of minors who are partially clothed, where the visual portrayals are used for the specific purpose of sexual gratification or sexual arousal from viewing the visual portrayals” is guilty of a misdemeanor.
The penalty is up to a year in jail, a fine of up to $1,000, or both.
The legislation was sponsored by Representative Thomas E. Noret, a Coventry Democrat, and Senator John Burke, a West Warwick Democrat, who said he introduced the legislation at the request of the Rhode Island State Police.
While Rhode Island has long banned child pornography, it has not prohibited the possession of “child erotica” that “involves young children dressed seductively, oftentimes wearing underwear and string bikinis, and posing in a sexual and salacious manner,” Burke said in explaining the bill on July 1, the final day of the legislative session.
The new law prohibits “child erotica” only “if it is for sexual gratification or sexual arousal,” he noted. “Specific intent is required.”
When authorities conduct compliance checks on sex offenders, they often find “hundreds of thousands of child erotica images or videos,” but nothing can be done because such images have been considered legal, Burke said.
The children portrayed in erotic images and videos are affected physically, socially, and psychologically for their whole lives, he said.
“It is our responsibility to protect our children from sexual exploitation and abuse,” Burke said. “This is our opportunity to make a difference.”
Senator Meghan E. Kallman, a Pawtucket Democrat, offered “extremely qualified support” for the legislation. While it does address “a significant loophole,” she said she’s concerned the language is “very vague” and could apply to “people it is not intended to apply to.”
“The challenges of this are magnified when we consider the impact on the LGBTQ community whose behavior tends to be much more stigmatized and scrutinized than those of their straight peers,” Kallman said. “I look forward to tightening up this language when we return.”
Senator Melissa A. Murray, a Woonsocket Democrat, said LGBTQ groups contacted here with concerns about the bill, but Burke committed to working with those groups and making changes in the future.
“As it stands, there are children who are being sexually exploited by adults with no legal consequences or recourse,” she said. “This is a loophole that must be closed.”
Senator Gayle L. Goldin, a Providence Democrat, said she shared concerns about the bill and believes those issues should be addressed before the law passes, not afterward.
“Child pornography is a disturbing misuse of power that harms children their entire lifetimes,” she said. “This bill, however, is not about child pornography. We already have laws on the books about child pornography.”
This bill is about “something vague, without definition, to criminalize people looking at pictures or videos that are ‘sexually arousing’ or ‘gratifying,’ “ Goldin said. Two people could have the same photo, and only the one who is sexually aroused could be arrested for having sexual thoughts while looking at the image, she said.
“The First Amendment means the government must have a compelling reason to regulate the words you read or speak, or the images you view, or the pictures that you take,” Goldin said. “It is a dangerous path to expand government’s regulation over our speech, thoughts, and images, without a clear justification for doing so.”
Senator Samuel W. Bell, a Providence Democrat, said he agrees with the need for a child erotica statute, but he shares concerns about the “vagueness of the language.” So he made a motion to postpone the vote until the Senate’s next meeting – which could come in a special fall session. But his motion failed by a vote of 10-25.
The Senate then approved the legislation by a vote of 31-6, with the “no” votes from Senators Jonathon Acosta, Kendra Anderson, Goldin, Tiara Mack, Cynthia Mendes, and Joshua Miller.
On Thursday, Patience “Polly” Crozier, senior staff attorney for Boston-based GLBTQ Legal Advocates & Defenders (GLAD), said she was disappointed that the bill had been passed and signed into law. “We will be on the lookout for LGBTQ youth that might be impacted by it,” she said.
“My concern is there is no carve-out for close-in-age youth,” she said. “If an 18-year-old is sending texts with a 17-year-old partner, they could be unwittingly ensnared and criminalized for conduct that is essentially teenagers being teenagers.”
Too often, LGBTQ youth are placed “under a more intense microscope” than their non-LGBTQ peers, Crozier said.
“Kids might not be out to their parents,” she said, “and if an image is discovered of a relationship they are not approving of, that could lead to a disproportionate impact of a crime for what is pervasive in society.”