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Bar News - November 13, 2009

Criminal Law  Online Child Exploitation Cases on the Rise: How the Legislature and the Courts Are Responding


Philip V. Apruzzese
Child exploitation cases on the Internet have been increasing in recent years. It is important for families to recognize that many of these problems start at home, but are not necessarily solved there. Parents need to be aware that this increase is occurring and that, at the same time, the legislature and courts are responding proactively.

In one of the most recent cases, the Supreme Court of New Hampshire upheld the conviction of a father [State v. Jennings] who digitally penetrated his daughter’s vagina while viewing a pornographic website. Had the victim not spoken with her friends at school, and had one of those friends not spoken with a school guidance counselor, it is likely that the charges might never have been brought.

State v. Jennings

In an opinion issued by Chief Justice Broderick this past June, the Supreme Court of New Hampshire interpreted New Hampshire Revised Statute Annotated 649-B:4. It reads that a person who “knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure or entice, a child or another person believed by the person to be a child, to commit…[a]ny offense under RSA 632-A, relative to sexual assault and related offenses,” is guilty of a class B felony. (See State of New Hampshire v. Jennings, 973 A.2d 340, 342 (N.H. 2009) (citing “in pertinent part” N.H. Rev. Stat. Ann. 649-B:4 (2007) (amended 2008).)

The Supreme Court upheld the conviction of Jeremy Jennings, and in doing so, effectively extended criminal liability under the Computer Pornography and Child Exploitation Act of 1996 (CPCE). (N.H. Rev. Stat. Ann. 649-B:1 (2007).)

Jennings and his wife divorced in 2000, which resulted in a decree granting physical custody to his now ex-wife, with Jennings being permitted to see their three children every other weekend. Id. at 341. Jennings’ oldest daughter, then fifteen, told friends that her father had touched her inappropriately. Id. Soon thereafter, the Milford Police Department conducted an investigation, and Jennings was brought up “on several charges, including three counts of prohibited uses of computer services.” Id. at 342. Two of the three counts were dismissed at the close of evidence, and the jury found Jennings guilty on that remaining charge. Id.

The Court stated that “[a]t trial, the daughter testified that on one occasion when she was visiting the defendant, he accessed at least one pornographic video via a website on the Internet and showed her the video on his computer screen. The defendant does not contend otherwise. She also testified that while she was watching the video on his computer, he digitally penetrated her vagina.” Id. On appeal Jennings argued that the government did not introduce sufficient evidence to support his conviction “for prohibited uses of computer services.” Id.

After a thorough analysis, the Court upheld Jennings’ conviction, concluding that “[g]iven the plain and ordinary meanings of the statutory terms, [their] examination of the legislative history and associated statutes, and the purpose and policy behind the statute, [the Court found] that the defendant’s actions of accessing a website on the Internet to show his daughter a pornographic video on his computer, and digitally penetrating her vagina while she was watching the video, clearly fall within the scope of RSA 649-B:4’s prohibition of ‘utiliz[ing] a computer on-line service, [or] Internet service…to seduce, solicit, lure, or entice, a child.’” Id. at 346. The Court affirmatively stated that “the legislature’s inclusion of the additional terms ‘seduce…lure, or entice’ indicat[ed] a clear legislative intent to expand the statutory proscription. Id. at 345-46 (citation omitted).

Raise Awareness of Jennings-like Situations

As the Court recognized, this is not the typical situation of online child exploitation meant to be handled by the CPCE, but it is one that the legislature meant to prevent with the enactment of the CPCE. The National Center for Missing & Exploited Children (NCMEC) includes the enticement of children for sexual acts, and then defines online child exploitation as “the sexual exploitation of a child that has an Internet component.” (National Center for Missing & Exploited Children – FAQ: Child Exploitation (28 Sept. 2009).)

NCMEC statistics indicate that one out of every five girls and one out of every 10 boys is sexually victimized before adulthood; however, NCMEC also states that these statistics are largely unrecognized and underreported. Id. (citation omitted).

According to research by The Crimes against Children Research Center (CACRC) at the University of New Hampshire (UNH) from 2006, while 79 percent of children involved in this study reported that unwanted sexual exposure happened at home, only 12 percent of all incidents were handled by parents or guardians. (Finkelhor, David, and Kimberly Mitchell and Janis Wolak. Online Victimization of Youth: Five Years Later. Alexandria, Virginia: National Center for Missing & Exploited Children, 2006, pages 18, 20, 25-26, 31, 36.1.) That means that 88 percent of all incidents were being handled by individuals or organizations other than the child’s parents or guardians. By isolating these statistics, one is able to see easily that there is the potential for a major problem in protecting children from online sexual exploitation in the home.

The Jennings case may present one possible solution. The State, in this case, was able to find out what was going on in the home because the victim talked to her friends, who in turn talked with a guidance counselor. After a thorough investigation, the defendant was tried and found guilty by a jury of his peers. Finally, in June 2009, the Supreme Court of New Hampshire affirmed his conviction.

Although in 2006 only five percent of all incidents were reported to and handled by law enforcement or other agencies, the Jennings case is a step in the right direction. (Online Victimization, page 20.)

In situations where they do not feel comfortable telling their parents, children need to be made aware that talking to friends, teachers, or any other adult will help prevent future incidents. More incidents are being reported and handled by law enforcement, as can be seen by the fact that reported incidents to NCMEC increased 39 percent in 2004. (National Center for Missing & Exploited Children – Reports of Child Pornography to the NCMEC Continue to Rise (Originally Published January 27, 2005) (13 Sept. 2009).)

The scope of this study was broad and included all types of unwanted online sexual exposure to children, and these statistics are just offered as a reference point. The full report is available at One way to make children aware of the help available is to use the safety tips for families, kids, and teens, which is available through the NCMEC’s NetSmartz Workshop at

Philip V. Apruzzese, a 2007 graduate of Fordham University, is a doctoral candidate at Franklin Pierce Law Center and a Daniel Webster Scholar. He is editor of the Germeshausen Center Newsletter, a member of the Kenison Chapter of Phi Alpha Delta and participates yearly in St. Baldrick’s Day, which raises money for Childhood Cancer Research. Apruzzese hopes to become a prosecutor, run for public office, and eventually work on pharmaceutical legislation.

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