Senate Judiciary reviews H.5 to expand hearsay exception and create image-based extortion offense

Michelle Childs, Office of Legislative Counsel, told the Senate Judiciary Committee on March 17 that H.5 would amend Rule 804(a) of the rules of evidence and several Title 13 criminal provisions to address nonconsensual image harms and related evidence rules.

Childs said the bill’s single, narrow change to the hearsay rule is an age adjustment: "under 16 years of age." She explained existing safeguards remain in place, including that the child must be available to testify and the timing and circumstances of the statement must provide "substantial indicia of trust." The committee chair pressed whether a defense could introduce an out-of-court statement from someone under 16 and whether one victim’s statement could be used against another; Childs and members clarified that other protections in Rule 804(a) would still apply and recommended practitioners provide concrete examples.

On substantive crimes, Childs reviewed revisions to the voyeurism statute that separate viewing from photographing/recording and extend statute-of-limitations provisions for captured images. She described the dissemination provision as prohibiting "knowingly disclose a visual image of an identifiable person ... without the person's consent with the intent to harm, harass, or intimidate," and noted some language that previously said "threaten, vote, or coerce" had been moved because that conduct is now encompassed by a new extortion offense.

The bill creates a focused image-based extortion crime, Childs said, in which a person knowingly threatens to disclose an identifiable image without consent to compel another to provide images, engage in sexual conduct, pay money or refrain from lawful conduct. She outlined penalties in the draft: "violation is a 3 year felony, a fine of $3,000" for adult victims; a 10-year felony and $10,000 fine when the victim is a minor; and up to 15 years where serious bodily injury or death results. Committee members raised questions about how collateral violence or third-party injuries would be treated when determining enhanced penalties.

Members debated the statute’s mens rea. One committee member asked whether the dissemination offense should criminalize all nonconsensual sharing or require proof of intent to harm, using a hypothetical: "I thought this would help them get more click on TikTok." Childs said the draft follows a knowingly/intent-to-harm standard to reduce constitutional exposure and because state approaches vary; she noted some jurisdictions require less mens rea but that intent requirements have been used successfully in prior litigation challenges.

Childs also described a private right of action and a negligence standard permitting recovery for actual injury, including trauma-related disorders, referencing Kilburn v. Simmons and other case law as background for why civil remedies and statute-of-limitations language were included. The bill tracks different applicability dates for different offenses (the dissemination-related provisions track a July 1, 2015 effective date; other items track a 2005 effective date), and Childs said retroactivity is limited to situations where the original statute-of-limitations has not expired.

To encourage reporting by minors, subsection e would provide limited immunity for victims who in good faith and promptly report the offense to law enforcement; Childs said the provision is modeled on similar reporting protections in overdose and trafficking contexts. The committee did not take a vote; members asked staff to assemble witnesses and practitioners for further testimony and examples and indicated they will continue work on the bill at a subsequent meeting.

The committee’s next procedural step is to invite witnesses and practitioners to testify, likely next week, and continue refining statutory language. No formal action or vote on H.5 occurred during this session.