[Congressional Record Volume 143, Number 44 (Tuesday, April 15, 1997)]
[Extensions of Remarks]
[Page E667]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    TESTIMONY OF PATRICK A. TRUEMAN

                                 ______
                                 

                         HON. JOHN T. DOOLITTLE

                             of california

                    in the house of representatives

                        Tuesday, April 15, 1997

  Mr. DOOLITTLE. Mr. Speaker, I commend to the attention of my 
colleagues the testimony of Patrick Trueman, president of the American 
Family Association, who appeared before the Interior Appropriations 
Subcommittee concerning funding for the National Endowment for the 
Arts. Mr. Trueman makes a compelling case for eliminating the NEA, 
claiming the agency poses serious problems in the prosecution of child 
pornography cases.

                      American Family Association

     Pursuant to clause 2(g)(4) of the rule XI of the Rules of the 
     House of Representatives, I certify that neither the American 
     Family Association nor I have received any federal grant or 
     contract during the current fiscal year or either of the two 
     previous fiscal years.
       Mr. Chairman and Members of the Committee: I want to thank 
     you for the opportunity to appear before you today on behalf 
     of American Family Association. As you are aware, for the 
     past eight years AFA has been the leading organization 
     opposing federal funding for the National Endowment for the 
     Arts. In 1989, AFA president Rev. Donald Wildmon called to 
     national attention the funding by the NEA of Andres Serrano's 
     work ``Piss Christ'' which consisted of a crucifix submersed 
     in the artists' urine. The fact that such a blasphemous work 
     was federally funded outraged a great segment of American 
     society and precipitated a battle to end federal funding of 
     the agency. That battle will not end until funding for the 
     NEA ends, rest assured of that fact.
       The federal government should not be in the business of 
     dictating what art is. That is not a proper function for the 
     government and, in the case of the NEA, such a function poses 
     a potential conflict with the federal criminal law. Year 
     after year NEA grants make possible the production and 
     distribution of a variety of sexually explicit material. 
     During the last part of the Reagan Administration and during 
     the entire Bush Administration I served in the United States 
     Department of Justice, Criminal Division, Washington D.C. as 
     Chief of the Child Exploitation and Obscenity Section. That 
     office is charged with the prosecution of obscenity and child 
     pornography crimes. Part of my job, as supervisor of the 
     office was to review and make prosecutorial decisions on both 
     adult and child pornography. Much of what we prosecuted in 
     those two presidential administrations involved material of 
     the same nature as that funded through the years by the NEA. 
     Mr. Chairman, how can you expect common citizens to respect 
     the rule of law, particularly the federal criminal law on 
     child pornography and obscenity when Congress continues to 
     fund the NEA knowing the agency has a pattern of conduct over 
     the years and to the present day of funding material which 
     may offend the criminal law. To continue to do so would be 
     the height of hypocrisy.
       I submit that the NEA poses a direct threat to the 
     prosecution, on both the federal and state levels, of 
     obscenity and child pornography crimes. In obscenity cases 
     a jury is required to make a determination that the 
     material is ``obscene'' based on the three-part test 
     established in the U.S. Supreme Court case of Miller v. 
     California, 413 U.S. 15 (1973): whether the material (1.) 
     depicts specific sex acts in a patently offensive way; 
     (2.) appeals to the prurient interest in sex as a whole; 
     and (3.) lacks serious literacy, artistic, political or 
     scientific value. (emphasis added) It would be a relevant 
     defense argument that material similar to that charged in 
     a particular prosecution if funded by the NEA as ``art.'' 
     Indeed it may be appropriate, on motion from the defense, 
     for a judge to allow a jury to view a specific NEA-funded 
     work that is similar to the work charged as obscene in the 
     case to aid the jury in the application of the Miller 
     test. Surely you can understand the dilemma this would 
     pose to a jury which must make a unanimous finding on the 
     obscenity or non obscenity of the material. Just one juror 
     trusting the federal governments' opinion on the nature of 
     such material would cause the acquittal of a hardcore 
     pornographer.
       The problems the NEA could pose in the prosecution in a 
     child pornography case are somewhat different. The Miller 
     test does not apply and thus a jury is not asked to decide 
     whether the material is lacking in artist value. However, the 
     imprimatur of the NEA on such material or similar material 
     may play a deciding factor in prosecutorial discretion, i.e. 
     whether a case should be prosecuted or not.
       Should a case be charged against a particular NEA grantee 
     for a work considered by a prosecutor to be child pornography 
     (not an unlikely scenario given the history of the agency) 
     the dilemma is more direct however. It would be difficult if 
     not impossible to keep from a jury a defense argument that 
     the material charged is not child pornography at all but 
     rather ``art'' because the NEA has provided funding for its 
     production or distribution.
       The threat that the NEA poses in the prosecution on 
     obscenity and child pornography cases is not merely 
     hypothetical. The difficulties I have outlined in this regard 
     were faced by the U.S. Department of Justice during my years 
     in the criminal division with respect to the funding by the 
     NEA of an exhibit by the late Robert Mapplethorpe.
       The American Family Association is convinced after years of 
     monitoring the NEA that the agency will never change. While 
     it is only a small portion of its annual budget the NEA 
     continues to fund pornographic works as ``art.'' Some of the 
     more recent and troubling works funded by the agency include 
     grants to a group called FC2 and another called Women Make 
     Movies, Inc. FC2 was provided $25,000 in the past year to 
     support the publication of at least four books according to 
     U.S. Representative Peter Hoekstra who has been tracking the 
     NEA: S&M, by Jeffrey DeShell, Blood of Mugwump: A Tiresian 
     Tale of Incest, by Doug Rice, Chick-Lit 2: No Chick Vics, 
     edited by Cris Maza, Jeffrey Deshell and Elisabeth Sheffield 
     and Mexico Trilogy, by D.N. Stuefloten. These books include 
     descriptions of body mutilation, sadomasochistic sexual act, 
     child sexual acts, sex between a nun and several priests, 
     sodomy, incest, hetero and homosexual sex and numerous other 
     graphically described sexual activities.
       Women Making Movies, Inc. received $112,700 in taxpayer 
     money over the past three years for the production and 
     distribution of several pornographic videos. Here are 
     descriptions of but two taken from the groups catalog: ``Ten 
     Cents a Dance'' a depiction of anonymous bathroom sex between 
     two men; and another called ``Sex Fish'' which is ``a furious 
     montage of oral sex.''
       Oral sex is not art and the NEA and Congress should not 
     pretend that it is. Please stop offending the taxpayers of 
     America. Funding for the NEA should be eliminated.


     

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