118 HR 2661 IH: Project Safe Childhood Act
U.S. House of Representatives
2023-04-17
text/xml
EN
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I
118th CONGRESS
1st Session
H. R. 2661
IN THE HOUSE OF REPRESENTATIVES
April 17, 2023
Ms. Wasserman Schultz (for herself and Mr. Hunt) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To reauthorize and update the Project Safe Childhood program, and for other purposes.
1.

Short title
This Act may be cited as the “Project Safe Childhood Act”.
2.

Project Safe Childhood modernization
Section 143 of the Adam Walsh Child Protection and Safety Act of 2006 (34 U.S.C. 20942) is amended to read as follows:
“143.

Project Safe Childhood
(a)

Definitions
In this section:
(1)

Child sexual abuse material
The term child sexual abuse material has the meaning given the term child pornography in section 2256 of title 18, United States Code.
(2)

Child sexual exploitation offense
The term child sexual exploitation offense means—
(A)
(i)
an offense involving a minor under section 1591 or chapter 117 of title 18, United States Code;
(ii)
an offense under subsection (a), (b), or (c) of section 2251 of title 18, United States Code;
(iii)
an offense under section 2251A or 2252A(g) of title 18, United States Code; or
(iv)
any attempt or conspiracy to commit an offense described in clause (i) or (ii); or
(B)
an offense involving a minor under a State or Tribal statute that is similar to a provision described in subparagraph (A).
(3)

Circle of trust offender
The term circle of trust offender means an offender who is related to, or in a position of trust, authority, or supervisory control with respect to, a child.
(4)

Computer
The term computer has the meaning given the term in section 1030 of title 18, United States Code.
(5)

Contact sexual offense
The term contact sexual offense means—
(A)
an offense involving a minor under chapter 109A of title 18, United States Code, or any attempt or conspiracy to commit such an offense; or
(B)
an offense involving a minor under a State or Tribal statute that is similar to a provision described in subparagraph (A).
(6)

Dual offender
The term dual offender means—
(A)
a person who commits—
(i)
a technology-facilitated child sexual exploitation offense or an offense involving child sexual abuse material; and
(ii)
a contact sexual offense; and
(B)
without regard to whether the offenses described in clauses (i) and (ii) of subparagraph (A)—
(i)
are committed as part of the same course of conduct; or
(ii)
involve the same victim.
(7)

Facilitator
The term facilitator means an individual who facilitates the commission by another individual of—
(A)
a technology-facilitated child sexual exploitation offense or an offense involving child sexual abuse material; or
(B)
a contact sexual offense.
(8)

ICAC affiliate partner
The term ICAC affiliate partner means a law enforcement agency that has entered into a formal operating agreement with the ICAC Task Force Program.
(9)

ICAC task force
The term ICAC task force means a task force that is part of the ICAC Task Force Program.
(10)

ICAC Task Force Program
The term ICAC Task Force Program means the National Internet Crimes Against Children Task Force Program established under section 102 of the PROTECT Our Children Act of 2008 (34 U.S.C. 21112).
(11)

Offense involving child sexual abuse material
The term offense involving child sexual abuse material means—
(A)
an offense under section 2251(d), section 2252, or paragraphs (1) through (6) of section 2252A(a) of title 18, United States Code, or any attempt or conspiracy to commit such an offense; or
(B)
an offense under a State or Tribal statute that is similar to a provision described in subparagraph (A).
(12)

Serious offender
The term serious offender means—
(A)
an offender who has committed a contact sexual offense or child sexual exploitation offense;
(B)
a dual offender, circle of trust offender, or facilitator; or
(C)
an offender with a prior conviction for a contact sexual offense, a child sexual exploitation offense, or an offense involving child sexual abuse material.
(13)

State
The term State means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
(14)

Technology-facilitated
The term technology-facilitated, with respect to an offense, means an offense that is committed through the use of a computer, even if the use of a computer is not an element of the offense.
(b)

Establishment of program
The Attorney General shall create and maintain a nationwide initiative to align Federal, State, and local entities to combat the growing epidemic of online child sexual exploitation and abuse, to be known as the “Project Safe Childhood program”, in accordance with this section.
(c)

Best practices
The Attorney General, in coordination with the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice and the Office of Juvenile Justice and Delinquency Prevention of the Department of Justice, and in consultation with training and technical assistance providers under the ICAC Task Force Program who are funded by the Attorney General and with appropriate nongovernmental organizations, shall—
(1)
develop best practices to adopt a balanced approach to the investigation of suspect leads involving contact sexual offenses, child sexual exploitation offenses, and offenses involving child sexual abuse material, and the prosecution of those offenses, prioritizing when feasible the identification of a child victim or a serious offender, which approach shall incorporate the use of—
(A)
proactively generated leads, including leads generated by current and emerging technology;
(B)
in-district investigative referrals; and
(C)
CyberTipline reports from the National Center for Missing and Exploited Children;
(2)
develop best practices to be used by each United States Attorney and ICAC task force to assess the likelihood that an individual could be a serious offender or that a child victim may be identified;
(3)
develop and implement a tracking and communication system for Federal, State, and local law enforcement agencies and prosecutor’s offices to report successful cases of victim identification and child rescue to the Department of Justice and the public; and
(4)
encourage the submission of all lawfully seized visual depictions to the Child Victim Identification Program of the National Center for Missing and Exploited Children.
(d)

Implementation
Except as authorized under subsection (e), funds authorized under this section may only be used for the following 4 purposes:
(1)
Integrated Federal, State, and local efforts to investigate and prosecute contact sexual offenses, child sexual exploitation offenses, and offenses involving child sexual abuse material, including—
(A)
the partnership by each United States Attorney with each Internet Crimes Against Children Task Force within the district of such attorney;
(B)
training of Federal, State, and local law enforcement officers and prosecutors through—
(i)
programs facilitated by the ICAC Task Force Program;
(ii)
ICAC training programs supported by the Office of Juvenile Justice and Delinquency Prevention of the Department of Justice;
(iii)
programs facilitated by appropriate nongovernmental organizations with subject matter expertise, technical skill, or technological tools to assist in the identification of and response to serious offenders, contact sexual offenses, child sexual exploitation offenses, or offenses involving child sexual abuse material; and
(iv)
any other program that provides training—
(I)
on the investigation and identification of serious offenders or victims of contact sexual offenses, child sexual exploitation offenses, or offenses involving child sexual abuse material; or
(II)
that specifically addresses the use of existing and emerging technologies to commit or facilitate contact sexual offenses, child sexual exploitation offenses, or offenses involving child sexual abuse material;
(C)
the development by each United States Attorney of a district-specific strategic plan to coordinate with State and local law enforcement agencies and prosecutor’s offices, including ICAC task forces and their ICAC affiliate partners, on the investigation of suspect leads involving serious offenders, contact sexual offenses, child sexual exploitation offenses, and offenses involving child sexual abuse material, and the prosecution of those offenders and offenses, which plan—
(i)
shall include—
(I)
the use of the best practices developed under paragraphs (1) and (2) of subsection (c);
(II)
the development of plans and protocols to target and rapidly investigate cases involving potential serious offenders or the identification and rescue of a victim of a contact sexual offense, a child sexual exploitation offense, or an offense involving child sexual abuse material;
(III)
the use of training and technical assistance programs to incorporate victim-centered, trauma-informed practices in cases involving victims of contact sexual offenses, child sexual exploitation offenses, and offenses involving child sexual abuse material, which may include the use of child protective services, children’s advocacy centers, victim support specialists, or other supportive services;
(IV)
the development of plans to track, report, and clearly communicate successful cases of victim identification and child rescue to the Department of Justice and the public;
(V)
an analysis of the investigative and forensic capacity of law enforcement agencies and prosecutor’s offices within the district, and goals for improving capacity and effectiveness;
(VI)
a written policy describing the criteria for referrals for prosecution from Federal, State, or local law enforcement agencies, particularly when the investigation may involve a potential serious offender or the identification or rescue of a child victim;
(VII)
plans and budgets for training of relevant personnel on contact sexual offenses, child sexual exploitation offenses, and offenses involving child sexual abuse material;
(VIII)
plans for coordination and cooperation with State, local, and Tribal law enforcement agencies and prosecutorial offices; and
(IX)
evidence-based programs that educate the public about and increase awareness of such offenses; and
(ii)
shall be developed in consultation, as appropriate, with—
(I)
the local ICAC task force;
(II)
the United States Marshals Service Sex Offender Targeting Center;
(III)
training and technical assistance providers under the ICAC Task Force Program who are funded by the Attorney General;
(IV)
nongovernmental organizations with subject matter expertise, technical skill, or technological tools to assist in the identification of and response to contact sexual offenses, child sexual exploitation offenses, or offenses involving child sexual abuse material;
(V)
any relevant component of Homeland Security Investigations;
(VI)
any relevant component of the Federal Bureau of Investigation;
(VII)
the Office of Juvenile Justice and Delinquency Prevention of the Department of Justice;
(VIII)
the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice;
(IX)
the United States Postal Inspection Service;
(X)
the United States Secret Service; and
(XI)
each military criminal investigation organization of the Department of Defense; and
(D)
a quadrennial assessment by each United States Attorney of the investigations within the district of such attorney of contact sexual offenses, child sexual exploitation offenses, and offenses involving child sexual abuse material—
(i)
with consideration of—
(I)
the variety of sources for leads;
(II)
the proportion of work involving proactive or undercover law enforcement investigations;
(III)
the number of serious offenders identified and prosecuted; and
(IV)
the number of children identified or rescued; and
(ii)
information from which may be used by the United States Attorney, as appropriate, to revise the plan described in subparagraph (C).
(2)
Major case coordination by the Department of Justice (or other Federal agencies as appropriate), including specific cooperation, as appropriate, with—
(A)
the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice;
(B)
any relevant component of Homeland Security Investigations;
(C)
any relevant component of the Federal Bureau of Investigation;
(D)
the ICAC task forces and ICAC affiliate partners;
(E)
the United States Marshals Service, including the Sex Offender Targeting Center;
(F)
the United States Postal Inspection Service;
(G)
the United States Secret Service;
(H)
each Military Criminal Investigation Organization of the Department of Defense; and
(I)
any task forces established in connection with the Project Safe Childhood program set forth under subsection (b).
(3)
Increased Federal involvement in, and commitment to, the prevention and prosecution of technology-facilitated child sexual exploitation offenses or offenses involving child sexual abuse material by—
(A)
using technology to identify victims and serious offenders;
(B)
developing processes and tools to identify victims and offenders; and
(C)
taking measures to improve information sharing among Federal law enforcement agencies, including for the purposes of implementing the plans and protocols described in paragraph (1)(C)(i)(II) to identify and rescue—
(i)
victims of contact sexual offenses, child sexual exploitation offenses, and offenses involving child sexual abuse material; or
(ii)
victims of serious offenders.
(4)
The establishment, development, and implementation of a nationally coordinated “Safer Internet Day” every year developed in collaboration with the Department of Education, national and local internet safety organizations, parent organizations, social media companies, and schools to provide—
(A)
national public awareness and evidence-based educational programs about the threats posed by circle of trust offenders and the threat of contact sexual offenses, child sexual exploitation offenses, or offenses involving child sexual abuse material, and the use of technology to facilitate those offenses;
(B)
information to parents and children about how to avoid or prevent technology-facilitated child sexual exploitation offenses; and
(C)
information about how to report possible technology-facilitated child sexual exploitation offenses or offenses involving child sexual abuse material through—
(i)
the National Center for Missing and Exploited Children;
(ii)
the ICAC Task Force Program; and
(iii)
any other program that—
(I)
raises national awareness about the threat of technology-facilitated child sexual exploitation offenses or offenses involving child sexual abuse material; and
(II)
provides information to parents and children seeking to report possible violations of technology-facilitated child sexual exploitation offenses or offenses involving child sexual abuse material.
(e)

Expansion of Project Safe Childhood
Notwithstanding subsection (d), funds authorized under this section may be also be used for the following purposes:
(1)
The addition of not less than 20 Assistant United States Attorneys at the Department of Justice, relative to the number of such positions as of the day before the date of enactment of the Project Safe Childhood Act, who shall be—
(A)
dedicated to the prosecution of cases in connection with the Project Safe Childhood program set forth under subsection (b); and
(B)
responsible for assisting and coordinating the plans and protocols of each district under subsection (d)(1)(C)(i)(II).
(2)
Such other additional and related purposes as the Attorney General determines appropriate.
(f)

Authorization of appropriations
(1)

In general
For the purpose of carrying out this section, there are authorized to be appropriated—
(A)
for the activities described under paragraphs (1), (2), and (3) of subsection (d), $28,550,000 for each of fiscal years 2023 through 2028;
(B)
for the activities described under subsection (d)(4), $4,000,000 for each of fiscal years 2023 through 2028; and
(C)
for the activities described under subsection (e), $29,100,000 for each of fiscal years 2023 through 2028.
(2)

Supplement, not supplant
Amounts made available to State and local agencies, programs, and services under this section shall supplement, and not supplant, other Federal, State, or local funds made available for those agencies, programs, and services.”.
3.

Technical clarifications
(a)

In general
Title 18, United States Code, is amended—
(1)
in section 1201—
(A)
in subsection (a), in the matter preceding paragraph (1), by inserting “obtains by defrauding or deceiving any person,” after “abducts,”; and
(B)
in subsection (g), by adding at the end the following:
“(2)

Defense
For an offense described in this subsection involving a victim who has not attained the age of 16 years, it is not a defense that the victim consented to the offender’s conduct unless the offender can establish by a preponderance of the evidence that the offender reasonably believed that the victim had attained the age of 16 years.”;
(2)
in chapter 109A—
(A)
in section 2241—
(i)
in subsection (b)—
(I)
in paragraph (1)—
- (aa)
by inserting “or causes” after “engages in”; and
- (bb)
by inserting “or by” after “a sexual act with”; and
(II)
in paragraph (2)(B)—
- (aa)
by inserting “or causes” after “engages in”; and
- (bb)
by inserting “or by” after “a sexual act with”;
(ii)
in subsection (c)—
(I)
by striking “crosses a State line” and inserting “travels in interstate or foreign commerce”;
(II)
by inserting “or cause” after “engage in”;
(III)
by inserting “or by” after “a sexual act with” each place it appears;
(IV)
by inserting “or by” after “subsections (a) and (b) with”;
(V)
by inserting “or causes” after “engages in” each place it appears; and
(VI)
by inserting “or causing” after “so engaging”; and
(iii)
in subsection (d), by inserting “or being caused to engage in” after “engaging in”;
(B)
in section 2242—
(i)
in paragraph (2), in the matter preceding subparagraph (A)—
(I)
by inserting “or causes” after “engages in”; and
(II)
by inserting “or by” after “a sexual act with”; and
(ii)
in paragraph (3)—
(I)
by inserting “or causes” after “engages in”; and
(II)
by inserting “or by” after “a sexual act with”;
(C)
in section 2243—
(i)
in subsection (a)—
(I)
in the matter preceding paragraph (1)—
- (aa)
by inserting “or causes” after “engages in”; and
- (bb)
by inserting “or by” after “a sexual act with”; and
(II)
in paragraph (2), by inserting “or causing” after “so engaging”;
(ii)
in subsection (b)—
(I)
in the matter preceding paragraph (1)—
- (aa)
by inserting “or causes” after “engages in”; and
- (bb)
by inserting “or by” after “a sexual act with”; and
(II)
in paragraph (2), by inserting “or causing” after “so engaging”;
(iii)
in subsection (c)—
(I)
by inserting “or causes” after “engages in”; and
(II)
by inserting “or by” after “a sexual act with”; and
(iv)
in subsection (e)—
(I)
in paragraph (1), by inserting “or being caused to engage in” after “engaging in”; and
(II)
in paragraph (2), by striking “between the persons so engaging” and inserting the following:
“between—
(A)
the defendant; and
(B)
the person—
(i)
with whom the defendant engaged in a sexual act; or
(ii)
whom the defendant caused to engage in a sexual act”; and
(D)
in section 2244(b)—
(i)
by inserting “or causes” after “engages in”; and
(ii)
by inserting “or by” after “sexual contact with”; and
(3)
in section 2423(f)(1)—
(A)
by striking “a sexual act (as defined in section 2246) with” and inserting “any conduct involving”; and
(B)
by striking “sexual act occurred” and inserting “conduct occurred”.
(b)

Effective date
The amendment to section 2241(c) of title 18, United States Code, made by subsection (a)(2)(A)(ii)(I) of this section shall apply to conduct that occurred before, on, or after the date of enactment of this Act.
4.

Sexual exploitation and other abuse of children
Title 18 of the United States Code is amended—
(1)
in section 1466A—
(A)
in subsection (a)(1)(A), by inserting “, or includes a minor in such visual depiction of any adult engaging in sexually explicit conduct” after “sexually explicit conduct”; and
(B)
in subsection (b)(1)(A), by inserting “, or includes a minor in such visual depiction of any adult engaging in sexually explicit conduct” after “sexually explicit conduct”;
(2)
in chapter 109A—
(A)
in section 2244—
(i)
in subsection (a)—
(I)
by redesignating paragraphs (1) through (5) as subparagraphs (A) through (E), respectively, and adjusting the margins accordingly;
(II)
by striking “Whoever” and inserting the following:
“(1)

In general
Whoever”;
(III)
in paragraph (1), as so designated—
- (aa)
in the matter preceding subparagraph (A), as so redesignated, by striking “if so to do” and inserting “if to do so”;
- (bb)
in subparagraph (A), as so redesignated, by striking “ten” and inserting “10”;
- (cc)
in subparagraph (B), as so redesignated, by striking “three” and inserting “10’”;
- (dd)
in subparagraph (C), as so redesignated, by striking “two” and inserting “5”; and
- (ee)
in subparagraph (D), as so redesignated, by striking “two” and inserting “5”; and
(IV)
by adding at the end the following:
“(2)

Attempt
Whoever attempts to commit an offense under paragraph (1) shall be subject to the same penalty as for a completed offense.”;
(ii)
in subsection (b)—
(I)
by inserting “or causes” after “engages in”;
(II)
by inserting “or by” after “sexual contact with”;
(III)
by inserting “, or attempts to do so,” after “other person’s permission”; and
(IV)
by striking “two” and inserting “2”; and
(iii)
in subsection (c), by striking “If the sexual contact that violates this section (other than subsection (a)(5)) is with an individual” and inserting “If the sexual contact or attempted sexual contact that a person engages in or causes in violation of this section (other than subsection (a)(1)(E)) is with or by an individual”; and
(B)
in section 2246(2), by inserting after “16 years” the following: “, or of any person by a person who has not attained the age of 16 years,”; and
(3)
in chapter 110—
(A)
in section 2251—
(i)
by striking subsections (a) and (b) and inserting the following:
“(a)
Any person who, in a circumstance described in subsection (f), engages in any of the following conduct shall be punished as provided under subsection (e):
(1)
Employs, uses, persuades, induces, entices, or coerces a minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or transmitting a live visual depiction of such conduct.
(2)
Employs, uses, persuades, induces, entices, or coerces a minor to engage in any sexually explicit conduct and in the course thereof, knowingly produces or causes to be produced any visual depiction of such conduct, or transmits or causes to be transmitted a live visual depiction of such conduct.
(3)
Engages in sexually explicit conduct in the presence of a minor for the purpose of producing any visual depiction of such conduct or transmitting a live visual depiction of such conduct, intending that the minor be included in such visual depiction.
(4)
Engages in sexually explicit conduct in the presence of a minor and in the course thereof, knowingly produces or causes to be produced any visual depiction of such conduct, or transmits or causes to be transmitted a live visual depiction of such conduct, intentionally including the minor in such visual depiction.
(5)
Has a minor assist any other person to engage in any sexually explicit conduct during the commission of an offense set forth in paragraphs (1) through (4) of this subsection.
(6)
Transports any minor in or affecting interstate or foreign commerce with the intent that such minor be used in the production or live transmission of any visual depiction of a minor engaged in any sexually explicit conduct.
(b)
Any parent, legal guardian, or person who has custody or control of a minor and, in a circumstance described in subsection (f), engages in any of the following conduct shall be punished as provided under subsection (e):
(1)
Knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct—
(A)
for the purpose of producing any visual depiction of such conduct or transmitting a live visual depiction of such conduct; or
(B)
knowing that any visual depiction of such conduct will be produced or transmitted.
(2)
Knowingly permits an adult to engage in sexually explicit conduct in the presence of the minor—
(A)
for the purpose of producing any visual depiction of such conduct or transmitting a live visual depiction of such conduct, intending that the minor be included in such visual depiction; or
(B)
knowing that any visual depiction of such conduct will be produced or transmitted, intentionally including the minor in such visual depiction.”;
(ii)
in subsection (c)—
(I)
in paragraph (1)—
- (aa)
by striking “employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any sexually explicit conduct” and inserting “engages in any of the conduct described in paragraphs (1) through (5) of subsection (a)”; and
- (bb)
by striking “for the purpose of producing any visual depiction of such conduct,”; and
(II)
in paragraph (2)—
- (aa)
in subparagraph (A), by inserting “or transmitted” after “transported”; and
- (bb)
in subparagraph (B) by inserting “or transmits” after “transports”;
(iii)
in subsection (d)(1), by striking subparagraph (A) and inserting the following:
“(A)
to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if—
(i)
the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or
(ii)
the production of such visual depiction involves an adult engaging in sexually explicit conduct in the presence of a minor, such visual depiction is of such conduct, and the minor is intentionally included in the visual depiction; or”; and
(iv)
by adding at the end the following:
“(f)

Circumstances
The circumstance referred to in subsections (a) and (b) is that—
(1)
the person knows or has reason to know that the visual depiction will be—
(A)
transported or transmitted using any means or facility of interstate or foreign commerce;
(B)
transported or transmitted in or affecting interstate or foreign commerce; or
(C)
mailed;
(2)
the visual depiction was produced or transmitted using materials that have been—
(A)
mailed; or
(B)
shipped or transported in or affecting interstate or foreign commerce by any means, including by computer;
(3)
the visual depiction has actually been—
(A)
transported or transmitted using any means or facility of interstate or foreign commerce;
(B)
transported or transmitted in or affecting interstate or foreign commerce; or
(C)
mailed; or
(4)
any part of the offense occurred in a territory or possession of the United States or within the special maritime and territorial jurisdiction of the United States.”;
(B)
in section 2251A—
(i)
in subsection (a)—
(I)
in the matter preceding paragraph (1), by inserting “or control” after “transfer custody”;
(II)
by striking paragraph (1) and inserting the following:
“(1)
with knowledge that, as a consequence of the sale or transfer, the minor will be—
(A)
portrayed in any visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct; or
(B)
intentionally included in any visual depiction of an adult engaging in sexually explicit conduct in the presence of the minor; or”; and
(III)
in paragraph (2)—
- (aa)
in the matter preceding subparagraph (A), by striking “either”;
- (bb)
in subparagraph (A), by striking “or” at the end;
- (cc)
in subparagraph (B), by adding “or” at the end; and
- (dd)
by inserting after subparagraph (B) the following:
“(C)
the intentional inclusion of the minor in any visual depiction of an adult engaging in sexually explicit conduct in the presence of the minor;”; and
(ii)
in subsection (b)—
(I)
by striking paragraph (1) and inserting the following:
“(1)
with knowledge that, as a consequence of the purchase or obtaining of custody or control, the minor will be—
(A)
portrayed in any visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct; or
(B)
intentionally included in any visual depiction of an adult engaging in sexually explicit conduct in the presence of the minor; or”; and
(II)
in paragraph (2)—
- (aa)
in the matter preceding subparagraph (A), by striking “either”;
- (bb)
in subparagraph (A), by striking “or” at the end;
- (cc)
in subparagraph (B), by adding “or” at the end; and
- (dd)
by inserting after subparagraph (B) the following:
“(C)
the intentional inclusion of the minor in any visual depiction of an adult engaging in sexually explicit conduct in the presence of the minor;”;
(C)
in section 2252(a)—
(i)
in paragraph (1), by striking subparagraphs (A) and (B) and inserting the following:
“(A)
the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or
(B)
the producing of such visual depiction involves an adult engaging in sexually explicit conduct in the presence of a minor, such visual depiction is of such conduct, and the minor is intentionally included in the visual depiction;”;
(ii)
in paragraph (2), by striking subparagraphs (A) and (B) and inserting the following:
“(A)
the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or
(B)
the producing of such visual depiction involves an adult engaging in sexually explicit conduct in the presence of a minor, such visual depiction is of such conduct, and the minor is intentionally included in the visual depiction;”;
(iii)
in paragraph (3)(B), by striking clauses (i) and (ii) and inserting the following:
“(i)
the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or
(ii)
the producing of such visual depiction involves an adult engaging in sexually explicit conduct in the presence of a minor, such visual depiction is of such conduct, and the minor is intentionally included in the visual depiction;”; and
(iv)
in paragraph (4)(B), by striking clauses (i) and (ii) and inserting the following:
“(i)
the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or
(ii)
the producing of such visual depiction involves an adult engaging in sexually explicit conduct in the presence of a minor, such visual depiction is of such conduct, and the minor is intentionally included in the visual depiction;”;
(D)
in section 2256—
(i)
in paragraph (8)—
(I)
by striking subparagraph (A) and inserting the following:
“(A)
the production of such visual depiction involves—
(i)
the use of a minor engaging in sexually explicit conduct; or
(ii)
an adult engaging in sexually explicit conduct in the presence of a minor and the intentional inclusion of the minor in the visual depiction;”; and
(II)
in subparagraph (B), by inserting after “sexually explicit conduct” the following: “or that of a minor intentionally included in such visual depiction of an adult engaging in sexually explicit conduct”; and
(III)
in subparagraph (C), by inserting after “sexually explicit conduct.” the following: “or is intentionally included in such visual depiction of an adult engaging in sexually explicit conduct”;
(ii)
in paragraph (9), by striking the period at the end and inserting a semicolon;
(iii)
in paragraph (10), by striking “and” at the end;
(iv)
in paragraph (11), by striking the period at the end and inserting “; and”; and
(v)
adding at the end the following:
“(12)
the terms uses any minor to engage in, the use of a minor engaging in, and in the presence of a minor do not require—
(A)
the minor to be aware of, or to be capable of appraising the nature of, the sexually explicit conduct; or
(B)
any direct engagement or active participation by the minor in the sexually explicit conduct.”; and
(E)
in section 2260—
(i)
by striking subsection (a) and inserting the following:
“(a)

Use of minor
A person who, outside the United States, engages in any of the following conduct, intending that the visual depiction will be imported or transmitted into the United States or into waters within 12 miles of the coast of the United States, shall be punished as provided in subsection (c):
(1)
Employs, uses, persuades, induces, entices, or coerces a minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or transmitting a live visual depiction of such conduct.
(2)
Employs, uses, persuades, induces, entices, or coerces a minor to engage in any sexually explicit conduct and in the course thereof, knowingly produces or causes to be produced any visual depiction of such conduct, or transmits or causes to be transmitted a live visual depiction of such conduct.
(3)
Engages in sexually explicit conduct in the presence of a minor for the purpose of producing any visual depiction of such conduct or transmitting a live visual depiction of such conduct, intending that the minor be included in such visual depiction.
(4)
Engages in sexually explicit conduct in the presence of a minor and in the course thereof, knowingly produces or causes to be produced any visual depiction of such conduct, or transmits or causes to be transmitted a live visual depiction of such conduct, intentionally including the minor in such visual depiction.
(5)
Has a minor assist any other person to engage in any sexually explicit conduct during the commission of an offense set forth in paragraphs (1) through (4) of this subsection.
(6)
Transports any minor in or affecting foreign commerce with the intent that such minor be used in the production or live transmission of any visual depiction of a minor engaged in any sexually explicit conduct.”; and
(ii)
in subsection (b), by striking “visual depiction of a minor engaging in sexually explicit conduct (if the production of the visual depiction involved the use of a minor engaging in sexually explicit conduct), intending that the visual depiction” and inserting “child pornography (as defined in section 2256(8)(A)), intending that the child pornography”.