[Congressional Record Volume 140, Number 13 (Thursday, February 10, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: February 10, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                           CHILD PORNOGRAPHY

  Mr. ROTH. Mr. President, last November we passed the Roth-Grassley 
amendment to the crime bill, 100-0. In that amendment, we denounced the 
Justice Department's new, narrow interpretation of the Federal child 
pornography statutes announced by the Solicitor General in the case of 
United States versus Knox. We implored the Justice Department to 
enforce the law and to protect our children.
  President Clinton supported our effort by sending a letter to the 
Attorney General which stated that he ``fully agree(d) with the Senate 
about what the proper scope of the child pornography law should be.'' I 
was heartened by the President's words of support.
  Unfortunately, I have to report today that despite the President's 
words, the Justice Department has done nothing to alter its new, 
narrow, and dangerous interpretation of the child pornography laws.
  To review the facts, the Justice Department successfully prosecuted 
Stephen Knox for possession of child pornography, Mr. Knox having 
previously been convicted of a similar offense. The Third Circuit then 
upheld the conviction on appeal. In March 1993, the Justice 
Department's initial Supreme Court brief argued that the Third Circuit 
was right and that the conviction should stand. The video tapes at 
issue depicted girls as young as 10 who, although not nude, were posed 
provocatively with the camera frequently zooming in on the children's 
pubic and genital areas for extended periods. Advertising catalogs for 
the tapes showed they were designed to pander to pedophiles with 
descriptions such as ``bathing suits on girls as young as 15 that are 
so revealing it's almost like seeing them naked (some say even 
better).''

  In September 1993, the new Solicitor General reversed the Justice 
Department's earlier position. He filed a new brief in the Knox case, 
arguing that the Third Circuit was wrong and that the conviction of 
Knox should be vacated. Most disturbingly, the new Justice Department 
brief introduced a new requirement for what qualifies as child 
pornography--that the material ``must depict a child lasciviously 
engaging in sexual conduct (as distinguished from lasciviousness on the 
part of the photographer or viewer).'' In other words, the Justice 
Department's new interpretation of the law focuses exclusively on the 
acts of the child rather than on the actions of the pornographer. This 
completely ignores the fact that children can, for example, be 
photographed in a lascivious manner even while they are sleeping.
  As I have said before, my concern goes beyond the facts of the Knox 
case, because under the new Justice Department interpretation even 
totally nude depictions of children may not be prosecuted unless the 
child herself is acting lasciviously. Thus the new interpretation of 
the law threatens to prevent the prosecution of many child 
pornographers and creates a giant loophole in our child pornography 
laws for the benefit of pornographers and pedophiles.
  The Justice Department has tried to claim that its new interpretation 
of the law would have no practical effect. On November 18, 1993, I 
received a letter from the Department of Justice asserting that not a 
single prosecution or investigation ``of which we are aware'' would be 
terminated because of the new standards adopted in the Knox brief. As 
it turned out, the emphasis was on the word ``aware.'' At my request, a 
subsequent survey of the 93 U.S. Attorneys offices conducted by the 
Justice Department turned up at least 10 pending investigations with 
facts similar to the Knox case.
  At the same time, the Justice Department is trying to avoid a court 
test of its new, narrow interpretation of the law. On December 23, 
1993, the Department filed a motion with the Third Circuit Court of 
Appeals urging a new trial for Knox because Knox ``has never been tried 
under the interpretation of the statute now urged by the government.'' 
But the Justice Department now wants to try Knox, not for possession of 
the video tapes for which he was originally charged, but for the 
possession of other tapes that the Department has previously stipulated 
it would not introduce into evidence. Normally one would expect that an 
already convicted defendant would jump at the chance for a new trial 
when offered one by the prosecutors. But defendant Knox opposed the 
Government's motion, asserting that the Department was engaged in a 
political strategy to avoid the issue and the ``political brouhaha'' 
caused by the Solicitor General's brief. On this point, at least, Mr. 
Knox is exactly right.

  To be assured that our voice is heard, on January 12, 1994, 137 
Members of the Senate and House filed a friend of the court brief 
opposing the Justice Department's motion to give Knox a new trial. We 
have also been granted the privilege of filing a friend of the court 
brief on the merits. I urge my colleagues to sign onto this brief. With 
the pornographers and the prosecutors on the same side, we must be 
certain the court will hear from someone who is prepared to defend the 
children.
  I recently wrote to President Clinton about the Justice Department's 
latest actions. I informed the President that in light of his past 
statements and the Justice Department's latest action, I can only 
conclude that the Justice Department is acting against his wishes.
  If the President believes what he has been saying about child 
pornography, it is time for him to back up his words with action. The 
Solicitor's brief must be disavowed and Federal prosecutors must be 
instructed that they will continue to enforce the law as most courts 
had interpreted it before the flip-flop brief in the Knox case muddied 
the waters.
  I know what Congress intended when we passed the Child Protection Act 
of 1984. We intended to stamp out the business of child pornography in 
this country and to stop the sexual exploitation of our children by 
pornographers and pedophiles.
  Mr. President, I ask unanimous consent that my letter to President 
Clinton, dated February 2, 1994, be printed in the Record following my 
statement.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:


                                                  U.S. Senate,

                                 Washington, DC, February 2, 1994.
     The President,
     The White House, Washington, DC.
       Dear Mr. President: I have received the reply of your 
     counsel, Mr. Bernard W. Nussbaum, to my November 12, 1993 
     letter to you regarding child pornography. As I mentioned in 
     my November letter, I was pleased by your support for my 
     amendment to the crime bill expressing the sense of the 
     Congress regarding the Supreme Court brief filed by the 
     Department of Justice in the case of United States v. Knox.
       As you will recall, the Roth-Grassley amendment, adopted by 
     the Senate by a vote of 100-0, declared ``It is the sense of 
     the Congress that in filing its brief in United States v. 
     Knox, No. 92-1183 * * * the Department of Justice did not 
     accurately reflect the intent of Congress.'' The Senate made 
     it clear that it unanimously believes that the current law is 
     sound and that it was the intent of Congress, when the child 
     pornography law was passed in 1984, that the law would cover 
     cases involving facts such as those revealed in the Knox 
     case.
       I am very concerned by the recent motion filed by the 
     Justice Department in the Third Circuit Court of Appeals in 
     the Knox case. On December 23, 1993, the Justice Department 
     filed a motion with the Third Circuit requesting that the 
     Knox case be remanded to the Federal District Court to be 
     retried under the very interpretation that the Senate 
     unanimously repudiated. The Department's motion states, 
     ``[b]ecause appellant has never been tried under the 
     interpretation of the statute now urged by the government, we 
     agree with appellant [Knox] that a new trial is required.''
       In light of the Justice Department's latest action, I can 
     only conclude that the Justice Department is acting against 
     your wishes.
       Moreover, since the Department of Justice has already been 
     irretrievably compromised in the Knox case by the filing of 
     two briefs in the Supreme Court taking different positions, I 
     renew my suggestion that you appoint a special counsel with 
     instructions to file a new brief with the Court of Appeals, 
     which accurately reflects your view and the Senate's view of 
     the current scope of the law.
       Unless the Justice Department immediately disavows its 
     narrow interpretation of the child pornography laws, I fear 
     child pornographers currently under prosecution or under 
     investigation, including the defendant in the Knox case, 
     could go free. To prevent that result, I urge that you direct 
     the Justice Department to immediately apply the intended 
     interpretation of the child pornography laws to any and all 
     child pornography cases currently under investigation or 
     litigation.
       I look forward to your response and to working with your 
     Administration on this important issue.
           Sincerely,
                                             William V. Roth, Jr.,
                                                      U.S. Senate.

  Mr. President, I yield the floor.
  Mr. GRASSLEY addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Iowa 
[Mr. Grassley].

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