NASHUA – Sixteen- and seventeen-year-olds can legally engage in consensual sex in New Hampshire, but their partners can’t take photos or shoot video without running afoul of child pornography laws.

The case of a Florida man accused of making a pornographic film with a 17-year-old Brookline girl has highlighted that particular peculiarity within the state’s criminal code.

George Malden, 70, of Fort Lauderdale, Fla., and an accomplice, Maia Daniels of Nashua, are charged with manufacturing child pornography, a felony punishable by up to 15 to 30 years in prison.

Malden’s trial is scheduled in May, and on Thursday, his lawyer James Boumil of Lowell, Mass., argued that Nashua police illegally seized Malden’s Cadillac and other evidence, including the camera they found in the trunk and the photos and video stored within. They asked a judge to prevent that evidence from being used against him at trial.

Police began investigating on May 13, after the Brookline teen’s father reported – based on what she had told him – that his daughter had been kidnapped and sexually assaulted.

Police initially suspected Malden of sexual assault, but the girl’s account of the incident varied greatly from her father’s. In subsequent interviews with police, it emerged that the girl had gone willingly with Daniels and Malden to Motel 6, where Malden took photos and shot video of the girl engaged in sexual acts with Daniels, according to court documents.

Malden and his lawyer argue that the girl’s account was so clearly unreliable, that police should not have used it for the basis to apply for a warrant to search his car and hotel room for evidence of sexual assault or child pornography. They also argue that police had no reason to seize his car in the first place.

Assistant County Attorney Roger Chadwick countered that while Malden may have some interesting arguments to make before a jury, police had plenty of probable cause and evidence to justify their investigation, and subsequent seizure and search.

Unlike sexual assault, consent is not an issue in child pornography, Chadwick notes. The law prohibits pornography depicting persons younger than 18.

“If she’s underage, she’s underage,” he said.

Further complicating things, however, while the law sets the bar at 18 years old, the preamble to the law, a “declaration of findings and purposes,” states that the point of the law is to protect children, and specifies that any representation of a child younger than 16 engaged in sexual activity is illegal even if it isn’t legally “obscene.”

Daniels and Malden both are free on bail while awaiting trial. Judge Diane Nicolosi heard arguments Thursday on Malden’s motion to suppress evidence, but gave no indication of when she would rule on the matter.

Andrew Wolfe can be reached at 594-6410 or awolfe@nashuatelegraph.com.