[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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