II 111th CONGRESS 2d Session S. 3841 IN THE SENATE OF THE UNITED STATES September 27, 2010 Mr. Kyl (for himself, Mr. Merkley, and Mr. Burr) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to prohibit the creation, sale, distribution, advertising, marketing, and exchange of animal crush videos that depict obscene acts of animal cruelty, and for other purposes.

1.

Short title

This Act may be cited as the Animal Crush Video Prohibition Act of 2010.

2.

Findings

The Congress finds the following: (1)The United States has a long history of prohibiting the interstate sale, marketing, advertising, exchange, and distribution of obscene material and speech that is integral to criminal conduct. (2)The Federal Government and the States have a compelling interest in preventing intentional acts of extreme animal cruelty. (3)Each of the several States and the District of Columbia criminalize intentional acts of extreme animal cruelty, such as the intentional crushing, burning, drowning, suffocating, or impaling of animals for no socially redeeming purpose. (4)There are certain extreme acts of animal cruelty that appeal to a specific sexual fetish. These acts of extreme animal cruelty are videotaped, and the resulting video tapes are commonly referred to as animal crush videos. (5)The Supreme Court of the United States has long held that obscenity is an exception to speech protected under the First Amendment to the Constitution of the United States. (6)In the judgment of Congress, many animal crush videos are obscene in the sense that the depictions, taken as a whole— (A)appeal to the prurient interest in sex; (B)are patently offensive; and (C)lack serious literary, artistic, political, or scientific value. (7)Serious criminal acts of extreme animal cruelty are integral to the creation, sale, distribution, advertising, marketing, and exchange of animal crush videos. (8)The creation, sale, distribution, advertising, marketing, and exchange of animal crush videos is intrinsically related and integral to creating an incentive for, directly causing, and perpetuating demand for the serious acts of extreme animal cruelty the videos depict. The primary reason for those criminal acts is the creation, sale, distribution, advertising, marketing, and exchange of the animal crush video image. (9)The serious acts of extreme animal cruelty necessary to make animal crush videos are committed in a clandestine manner that— (A)allows the perpetrators of such crimes to remain anonymous; (B)makes it extraordinarily difficult to establish the jurisdiction within which the underlying criminal acts of extreme animal cruelty occurred; and (C)often precludes proof that the criminal acts occurred within the statute of limitations. (10)Each of the difficulties described in paragraph (9) seriously frustrates and impedes the ability of State authorities to enforce the criminal statutes prohibiting such behavior.

3.

Animal crush videos

(a)

In general

Section 48 of title 18, United States Code, is amended to read as follows:

48.

Animal crush videos

(a)

Definition

In this section the term animal crush video means any photograph, motion-picture film, video or digital recording, or electronic image that— (1)depicts actual conduct in which 1 or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury (as defined in section 1365 and including conduct that, if committed against a person and in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242); and (2)is obscene. (b)

Prohibitions

(1)

Creation of animal crush videos

It shall be unlawful for any person to knowingly create an animal crush video, or to attempt or conspire to do so, if— (A)the person intends or has reason to know that the animal crush video will be distributed in, or using a means or facility of, interstate or foreign commerce; or (B)the animal crush video is distributed in, or using a means or facility of, interstate or foreign commerce. (2)

Distribution of animal crush videos

It shall be unlawful for any person to knowingly sell, market, advertise, exchange, or distribute an animal crush video in, or using a means or facility of, interstate or foreign commerce, or to attempt or conspire to do so. (c)

Extraterritorial application

Subsection (b) shall apply to the knowing sale, marketing, advertising, exchange, distribution, or creation of an animal crush video outside of the United States, or any attempt or conspiracy to do so, if— (1)the person engaging in such conduct intends or has reason to know that the animal crush video will be transported into the United States or its territories or possessions; or (2)the animal crush video is transported into the United States or its territories or possessions.” (d)

Penalty

Any person who violates subsection (b) shall be fined under this title, imprisoned for not more than 7 years, or both. (e)

Exceptions

(1)

In general

This section shall not apply with regard to any visual depiction of— (A)customary and normal veterinary or agricultural husbandry practices; (B)the slaughter of animals for food; or (C)hunting, trapping, or fishing. (2)

Good-faith distribution

This section shall not apply to the good-faith distribution of an animal crush video to— (A)a law enforcement agency; or (B)a third party for the sole purpose of analysis to determine if referral to a law enforcement agency is appropriate. (f)

No preemption

Nothing in this section shall be construed to preempt the law of any State or local subdivision thereof to protect animals.

. (b)

Clerical amendment

The item relating to section 48 in the table of sections for chapter 3 of title 18, United States Code, is amended to read as follows: 48. Animal crush videos. . (c)

Severability

If any provision of section 48 of title 18, United States Code (as amended by this section), or the application of the provision to any person or circumstance, is held to be unconstitutional, the provision and the application of the provision to other persons or circumstances shall not be affected thereby.