[Congressional Record Volume 158, Number 115 (Tuesday, July 31, 2012)]
[House]
[Pages H5507-H5510]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CHILD PROTECTION ACT OF 2012
Mr. SMITH of Texas. Mr. Speaker, I move to suspend the rules and pass
the bill (H.R. 6063) to amend title 18, United States Code, with
respect to child pornography and child exploitation offenses.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 6063
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Child Protection Act of
2012''.
SEC. 2. ENHANCED PENALTIES FOR POSSESSION OF CHILD
PORNOGRAPHY.
(a) Certain Activities Relating to Material Involving the
Sexual Exploitation of Minors.--Section 2252(b)(2) of title
18, United States Code, is amended by inserting after ``but
if'' the following: ``any visual depiction involved in the
offense involved a prepubescent minor or a minor who had not
attained 12 years of age, such person shall be fined under
this title and imprisoned for not more than 20 years, or
if''.
(b) Certain Activities Relating to Material Constituting or
Containing Child Pornography.--Section 2252A(b)(2) of title
18, United States Code, is amended by inserting after ``but,
if'' the following: ``any image of child pornography involved
in the offense involved a prepubescent minor or a minor who
had not attained 12 years of age, such person shall be fined
under this title and imprisoned for not more than 20 years,
or if''.
SEC. 3. PROTECTION OF CHILD WITNESSES.
(a) Civil Action To Restrain Harassment of a Victim or
Witness.--Section 1514 of title 18, United States Code, is
amended--
(1) in subsection (b)--
(A) in paragraph (1)--
(i) by inserting ``or its own motion,'' after ``attorney
for the Government,''; and
(ii) by inserting ``or investigation'' after ``Federal
criminal case'' each place it appears;
(B) by redesignating paragraphs (2), (3), and (4) as
paragraphs (3), (4), and (5), respectively;
(C) by inserting after paragraph (1) the following:
``(2) In the case of a minor witness or victim, the court
shall issue a protective order prohibiting harassment or
intimidation of the minor victim or witness if the court
finds evidence that the conduct at issue is reasonably likely
to adversely affect the willingness of the minor witness or
victim to testify or otherwise participate in the Federal
criminal case or investigation. Any hearing regarding a
protective order under this paragraph shall be conducted in
accordance with paragraphs (1) and (3), except that the court
may issue an ex parte emergency protective order in advance
of a hearing if exigent circumstances are present. If such an
ex parte order is applied for or issued, the court shall hold
a hearing not later than 14 days after the date such order
was applied for or is issued.'';
(D) in paragraph (4), as so redesignated, by striking
``(and not by reference to the complaint or other
document)''; and
(E) in paragraph (5), as so redesignated, in the second
sentence, by inserting before the period at the end the
following: ``, except that in the case of a minor victim or
witness, the court may order that such protective order
expires on the later of 3 years after the date of issuance or
the date of the eighteenth birthday of that minor victim or
witness''; and
[[Page H5508]]
(2) by striking subsection (c) and inserting the following:
``(c) Whoever knowingly and intentionally violates or
attempts to violate an order issued under this section shall
be fined under this title, imprisoned not more than 5 years,
or both.
``(d)(1) As used in this section--
``(A) the term `course of conduct' means a series of acts
over a period of time, however short, indicating a continuity
of purpose;
``(B) the term `harassment' means a serious act or course
of conduct directed at a specific person that--
``(i) causes substantial emotional distress in such person;
and
``(ii) serves no legitimate purpose;
``(C) the term `immediate family member' has the meaning
given that term in section 115 and includes grandchildren;
``(D) the term `intimidation' means a serious act or course
of conduct directed at a specific person that--
``(i) causes fear or apprehension in such person; and
``(ii) serves no legitimate purpose;
``(E) the term `restricted personal information' has the
meaning give that term in section 119;
``(F) the term `serious act' means a single act of
threatening, retaliatory, harassing, or violent conduct that
is reasonably likely to influence the willingness of a victim
or witness to testify or participate in a Federal criminal
case or investigation; and
``(G) the term `specific person' means a victim or witness
in a Federal criminal case or investigation, and includes an
immediate family member of such a victim or witness.
``(2) For purposes of subparagraphs (B)(ii) and (D)(ii) of
paragraph (1), a court shall presume, subject to rebuttal by
the person, that the distribution or publication using the
Internet of a photograph of, or restricted personal
information regarding, a specific person serves no legitimate
purpose, unless that use is authorized by that specific
person, is for news reporting purposes, is designed to locate
that specific person (who has been reported to law
enforcement as a missing person), or is part of a government-
authorized effort to locate a fugitive or person of interest
in a criminal, antiterrorism, or national security
investigation.''.
(b) Sentencing Guidelines.--Pursuant to its authority under
section 994 of title 28, United States Code, and in
accordance with this section, the United States Sentencing
Commission shall review and, if appropriate, amend the
Federal sentencing guidelines and policy statements to
ensure--
(1) that the guidelines provide an additional penalty
increase above the sentence otherwise applicable in Part J of
Chapter 2 of the Guidelines Manual if the defendant was
convicted of a violation of section 1591 of title 18, United
States Code, or chapters 109A, 109B, 110, or 117 of title 18,
United States Code; and
(2) if the offense described in paragraph (1) involved
causing or threatening to cause physical injury to a person
under 18 years of age, in order to obstruct the
administration of justice, an additional penalty increase
above the sentence otherwise applicable in Part J of Chapter
2 of the Guidelines Manual.
SEC. 4. SUBPOENAS TO FACILITATE THE ARREST OF FUGITIVE SEX
OFFENDERS.
(a) Administrative Subpoenas.--
(1) In general.--Section 3486(a)(1) of title 18, United
States Code, is amended--
(A) in subparagraph (A)--
(i) in clause (i), by striking ``or'' at the end;
(ii) by redesignating clause (ii) as clause (iii); and
(iii) by inserting after clause (i) the following:
``(ii) an unregistered sex offender conducted by the United
States Marshals Service, the Director of the United States
Marshals Service; or''; and
(B) in subparagraph (D)--
(i) by striking ``paragraph, the term'' and inserting the
following: ``paragraph--
``(i) the term'';
(ii) by striking the period at the end and inserting ``;
and''; and
(iii) by adding at the end the following:
``(ii) the term `sex offender' means an individual required
to register under the Sex Offender Registration and
Notification Act (42 U.S.C. 16901 et seq.).''.
(2) Technical and conforming amendments.--Section 3486(a)
of title 18, United States Code, is amended--
(A) in paragraph (6)(A), by striking ``United State'' and
inserting ``United States'';
(B) in paragraph (9), by striking ``(1)(A)(ii)'' and
inserting ``(1)(A)(iii)''; and
(C) in paragraph (10), by striking ``paragraph (1)(A)(ii)''
and inserting ``paragraph (1)(A)(iii)''.
(b) Judicial Subpoenas.--Section 566(e)(1) of title 28,
United States Code, is amended--
(1) in subparagraph (A), by striking ``and'' at the end;
(2) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(C) issue administrative subpoenas in accordance with
section 3486 of title 18, solely for the purpose of
investigating unregistered sex offenders (as defined in such
section 3486).''.
SEC. 5. INCREASE IN FUNDING LIMITATION FOR TRAINING COURSES
FOR ICAC TASK FORCES.
Section 102(b)(4)(B) of the PROTECT Our Children Act of
2008 (42 U.S.C. 17612(b)(4)(B)) is amended by striking
``$2,000,000'' and inserting ``$4,000,000''.
SEC. 6. NATIONAL COORDINATOR FOR CHILD EXPLOITATION
PREVENTION AND INTERDICTION .
Section 101(d)(1) of the PROTECT Our Children Act of 2008
(42 U.S.C. 17611(d)(1)) is amended--
(1) by striking ``to be responsible'' and inserting the
following: ``with experience in investigating or prosecuting
child exploitation cases as the National Coordinator for
Child Exploitation Prevention and Interdiction who shall be
responsible''; and
(2) by adding at the end the following: ``The National
Coordinator for Child Exploitation Prevention and
Interdiction shall be a position in the Senior Executive
Service.''
SEC. 7. REAUTHORIZATION OF ICAC TASK FORCES.
Section 107(a) of the PROTECT Our Children Act of 2008 (42
U.S.C. 17617(a)) is amended--
(1) in paragraph (4), by striking ``and'';
(2) in paragraph (5), by striking the period at the end;
and
(3) by inserting after paragraph (5) the following:
``(6) $60,000,000 for fiscal year 2014;
``(7) $60,000,000 for fiscal year 2015;
``(8) $60,000,000 for fiscal year 2016;
``(9) $60,000,000 for fiscal year 2017; and
``(10) $60,000,000 for fiscal year 2018.''.
SEC. 8. CLARIFICATION OF ``HIGH-PRIORITY SUSPECT''.
Section 105(e)(1)(B)(i) of the PROTECT Our Children Act of
2008 (42 U.S.C. 17615(e)(1)(B)(i)) is amended by striking
``the volume'' and all that follows through ``or other''.
SEC. 9. REPORT TO CONGRESS.
Not later than 90 days after the date of enactment of this
Act, the Attorney General shall submit to the Committee on
the Judiciary of the House of Representatives and the
Committee on the Judiciary of the Senate a report on the
status of the Attorney General's establishment of the
National Internet Crimes Against Children Data System
required to be established under section 105 of the PROTECT
Our Children Act of 2008 (42 U.S.C. 17615).
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Texas (Mr. Smith) and the gentleman from Virginia (Mr. Scott) each will
control 20 minutes.
The Chair recognizes the gentleman from Texas.
General Leave
Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous materials on H.R. 6063, the bill
currently under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may
consume.
Internet child pornography may be the fastest-growing crime in
America, increasing by an average of 150 percent per year. Every day,
online criminals prey on America's children with virtual anonymity, and
according to recent estimates there are as many as 100,000 fugitive sex
offenders in the U.S. Congress has taken important steps to combat
child exploitation, including the passage of the Adam Walsh Act in 2006
and the PROTECT Our Children Act in 2008.
But our work is not yet done.
That is why Representative Debbie Wasserman Schultz and I introduced
H.R. 6063, the Child Protection Act of 2012, that provides law
enforcement officials with important tools and additional resources to
combat the growing threat of child pornography and exploitation. This
bipartisan legislation increases penalties for child pornography
offenses that involve young children and strengthens protections for
child witnesses and victims.
{time} 2000
The bill allows a Federal court to issue a protective order if it
determines that a child victim or witness is being harassed or
intimidated and imposes criminal penalties for a violation of that
protective order. The Child Protection Act ensures that paperwork does
not stand in the way of the apprehension of dangerous criminals. This
bill gives the U.S. marshals limited subpoena authority to locate and
apprehend fugitive sex offenders.
Unlike the other 300 Federal administrative subpoena powers, which
are used at the beginning of a criminal investigation, a marshal's use
of subpoena authority under this bill will occur only after, and only
after, these actions occur:
The fugitive is arrested pursuant to a judge-issued warrant, indicted
for committing a sex offense, convicted by
[[Page H5509]]
proof beyond a reasonable doubt, and sentenced in a court of law;
The fugitive is required to register as a sex offender;
The fugitive pleas or otherwise violates their registration
requirements; and
A State or Federal arrest warrant is issued for violation of the
registration requirements.
This narrow subpoena authority is critical to help take convicted sex
offenders off the streets.
H.R. 6063 also reauthorizes, for 5 years, the Internet Crimes Against
Children task forces. The ICAC task forces were launched in 1998 and
officially authorized by Congress in the PROTECT Our Children Act of
2008.
The ICAC Task Force Program is a national network of 61 coordinated
task forces that represent over 3,000 Federal, State, and local law
enforcement and prosecutorial agencies dedicated to child exploitation
investigations. Since 1998, the ICAC task forces have reviewed more
than 280,000 complaints of alleged child sexual abuse and arrested more
than 30,000 individuals. The Child Protection Act increases the cap on
grant funds for ICAC training programs and makes several clarifications
to provisions enacted as a part of the PROTECT Our Children Act.
Finally, the bill requests a report from the Justice Department on
implementation of a national Internet crimes against children data
system. Yesterday, Senator Blumenthal and Senator Cornyn introduced the
companion bill in the Senate. This bipartisan, bicameral bill is
supported by a number of outside organizations, which include the
National Center for Missing and Exploited Children, the Major City
Chiefs of Police, Futures Without Violence, the Fraternal Order of
Police, the International Association of Chiefs of Police, the National
Alliance to End Sexual Violence, the National District Attorneys
Association, the National White Collar Crime Center, the National
Sheriffs' Association, the Surviving Parents Coalition, the Rape Abuse
Incest National Network, the National Alliance to End Sexual Violence,
and the National Association to Protect Children.
Once again, Mr. Speaker, I want to thank Congresswoman Debbie
Wasserman Schultz for her great work on this issue, and I urge my
colleagues to join me in support of this important legislation to
protect America's children.
I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
I rise in opposition to H.R. 6063. While I can appreciate the
apparent attempt in the bill to better protect children who are victims
of sexual abuse, it not only fails to achieve that objective, but it
also presents serious constitutional concerns and other problematic
provisions.
First, the bill creates a rebuttable presumption in 18 U.S.C. section
1514 that, if an individual posts a photograph or personal identifying
information about a person subject to a protective order, it ``serves
no legitimate purpose,'' which is an essentiable element of the offense
of harassment and intimidation. This rebuttable presumption would shift
the burden of proof in these cases from the accuser to the accused by
requiring the accused to prove that posting of the photograph or
information about the person served a legitimate purpose. Therefore,
under current law and the fundamental principles of the Constitution,
the burden is on the accuser to prove beyond a reasonable doubt this
element of the offense, not the obligation of the accused to prove his
innocence. This provision violates the constitutional rights of
defendants who may be innocent of the underlying charge and who are
entitled to be presumed innocent.
The coincidental inclusion of a protected person in a family photo
posted over Facebook or an email, which may be unintentional and
coincidental, should not be presumed to be a crime.
What's wrong with the normal process by which the accuser has to show
that the posting was for harassment or intimidation? To make an
innocent person prove his innocence is not only unnecessary and unfair,
but unconstitutional.
In Francis v. Franklin, a 1985 Supreme Court case, the government
argued that the constitutional issue regarding the rebuttable
presumption there was overcome by the defendant's ability to rebut the
presumption. The Supreme Court, however, found that argument
unpersuasive. The Court said that a mandatory presumption instructs the
jury that it must infer the presumed fact if the State presumes certain
predicate facts. Such a presumption can be conclusive or rebuttable.
The key is whether it is mandatory, that is, whether the jury must make
a presumption, possibly subject to rebuttal, if the State proves
certain facts.
In light of the fact that section 3(d)(2) of H.R. 6063 explicitly
mandates the court shall presume there was no legitimate purpose, this
provision is exactly the kind of mandatory rebuttable presumption that
the Court repudiated in the Francis decision.
Another problem with the bill is it adds a new criminal offense of
violating a protective order. Minor activities that are not intended to
cause harm or distress, such as a phone call or an email, can result in
a Federal criminal charge, not as a violation of Federal law protecting
a witness from harassment or intimidation--there are already laws
against that--but as a technical violation of a civil order.
Judges already have plenty of laws and authority to protect victims
and witnesses. There's already a comprehensive statutory scheme in
place to assist judges and law enforcement in protecting witnesses in
Federal criminal proceedings. In addition to Federal criminal
provisions with heavy penalties and the authority for judges to enter
protective orders for the protection of all witnesses, including
children, the judges have immense contempt and other powers to
accomplish this goal. Thus, the additional criminal offense is
unnecessary and unproductive. We should stop adding unnecessary
criminal laws to the criminal code.
In the previous Congress, we held hearings regarding the general
problem of over-criminalization of conduct and the over-federalization
of criminal law. Members of both parties then expressed concern over
this. We already have over 4,000 Federal criminal offenses in the code,
along with an estimated 300,000 Federal regulations that impose
criminal penalties, often without clearly setting out what will be
subject to criminal liability.
This bill is yet another example of adding more unnecessary crimes
and penalties to the Federal code. Moreover, such a provision moves the
protection responsibility from the judge in the case to a prosecutor
who decides when there is a violation and when to bring charges for the
violations. Given the fact that many proceedings involving child
witnesses also involve family members of the child witness in
emotionally charged situations, the addition of more criminal
provisions to this mix is not helpful.
This provision allows the imposition of a Federal felony up to 5
years in prison for a violation. It is unnecessary, overbroad, and
harsh, especially given a restraining order can be violated by simply
making an innocent phone call.
A further problem with H.R. 6063 is that it would give U.S. marshals
the authority to issue administrative subpoenas to investigate
unregistered sex offenders. I'm not convinced that extending this
extraordinary ex parte judicial authority is appropriate.
Research has clearly shown that registered sex offenders who may not
be compliant with the law are actually no more apt to commit a criminal
offense than those who are compliant. So there is no compelling reason
to create a special authority for U.S. marshals in the case of
registered or unregistered sex offenders. There's no urgent or imminent
threat context in rounding up alleged noncompliant sex offenders which,
as we said, are no more likely to commit a crime than those who are
compliant with all of the technicalities of the law.
{time} 2010
The existing statutory scheme for administrative subpoenas for law
enforcement focuses on extreme situations, such as the Presidential
threat protection administrative subpoena. We approved that power a few
years ago to assist in the protection of the President when the
director of the Secret
[[Page H5510]]
Service has determined that an imminent threat is posed against the
life of the President of the United States, and he has to certify the
same to the Secretary of the Treasury. And the Attorney General has the
same kind of power in child exploitation cases. Both are Cabinet-level
officials.
I offered an amendment to remove the provisions extending this type
of judicial authority to the U.S. Marshals Service. Upon the failure of
that amendment, I then offered an amendment to continue limiting the
authority to issue administrative subpoenas to Cabinet officials to
ensure that this extraordinary judicial power is used discreetly and
only in circumstances where it is absolutely warranted. Those
amendments were defeated; and, therefore, this bill gives more power to
the Marshals Service in cases where there is no proven need for the
power, more power than the Secret Service has when faced with an
imminent threat to the President of the United States.
Despite serious constitutional issues and these other problems, this
bill was introduced on June 29 and was marked up in committee 12 days
later, on July 10, which was the very next day that Congress was in
session. Clearly these provisions need more consideration. For these
reasons, I urge that we defeat H.R. 6063.
I reserve the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, I have no further requests for time
on this side and reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield such time as she may
consume to the gentlelady from Florida (Ms. Wasserman Schultz), a
cosponsor of the bill.
Ms. WASSERMAN SCHULTZ. Mr. Speaker, I rise today in support of the
Child Protection Act of 2012, which I am honored to cosponsor with my
good friend from Texas, Chairman Lamar Smith. Chairman Smith and I are
proof-positive of what bipartisan working relationships can accomplish,
especially because we both agree that protecting the safety and well-
being of our Nation's children is our highest priority. That's why I am
so pleased that this bill, which was reported favorably out of
committee on voice vote, is before us today. This is an opportunity to
make a real difference in the lives of children nationwide, thousands
of whom are plagued by abuse, terror, and assaults that we cannot even
imagine.
In 2008, I was honored to sponsor the PROTECT Our Children Act of
2008, which provides the safety net and resources the law enforcement
agents who fight child sexual predators so desperately need. This
commonsense bill builds on the progress that we started in PROTECT to
ensure that law enforcement can combat one of the fastest-growing
crimes in the United States, child pornography.
We must ensure that investigators have every available resource to
track down predators and protect our children. This bill ensures that
paperwork does not stand in the way of protecting our kids.
Mr. Speaker, I have learned far too much about the world of child
pornography since I first took on this cause 4 years ago. There are
many aspects of it that are disturbing beyond words to describe, like
the fact that in a survey of convicted offenders, more than 83 percent
of them had images of children younger than 12 years old, and almost 20
percent of them had images of babies and toddlers who were less than 3
years old. And let's remember that these aren't just images of naked
children. These are crime scene photographs and videos taken of
children being beaten, raped, and abused beyond our worst nightmares
for the sexual pleasure of the person looking at the photo or video.
Let's also remember that these are children who are often being
victimized by someone in their circle of trust, someone who was
supposed to protect them, and someone who, instead, chose to do them
harm. These children only have the law to protect them because their
protectors failed them and caused them harm.
While it's not often that we have an opportunity to pass a bill here
that quite literally means the difference between life or death, this
is one of those times. That's why, as a Member of Congress, I know
that I, as well as Chairman Smith and the Members of Congress here
today fighting to protect the children of this country, will stand
strong and continue to press forward on their behalf.
I am proud and honored to be the lead Democratic sponsor of this
bill, and I am thankful to my friend Chairman Smith for his continued
leadership and support on this crucial cause.
While the chairman listed some of the organizations that are
supporting this bill, I will add some others. This bill is supported by
the Rape, Abuse, and Incest National Network; the National Council of
Jewish Women; Men Can Stop Rape; and the Florida Council Against Sexual
Violence, among the other worthy and proud organizations that Chairman
Smith listed.
We are grateful to all of these organizations for their endorsement
of this bill and for their continued support for all victims of sexual
assault and abuse. I urge all of my colleagues to join us in supporting
this critical legislation.
Mr. SCOTT of Virginia. Mr. Speaker, I yield back the balance of my
time.
Mr. SMITH of Texas. Mr. Speaker, I yield back the balance of my time
as well.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Texas (Mr. Smith) that the House suspend the rules and
pass the bill, H.R. 6063.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. SMITH of Texas. Mr. Speaker, I object to the vote on the ground
that a quorum is not present and make the point of order that a quorum
is not present.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
The point of no quorum is considered withdrawn.
____________________