[Senate Report 104-358]
[From the U.S. Government Publishing Office]
Calendar No. 545
104th Congress Report
SENATE
2d Session 104-358
_______________________________________________________________________
CHILD PORNOGRAPHY PREVENTION ACT OF 1995
_______
August 27, 1996.--Ordered to be printed
Filed under authority of the order of the Senate of August 2, 1996
_______________________________________________________________________
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 1237]
The Committee on the Judiciary, to which was referred the
bill (S. 1237), having considered the same, reports favorably
thereon with an amendment in the nature of a substitute and
recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose..........................................................7
II. Legislative history..............................................8
III. Section-by-section analysis......................................8
IV. Discussion......................................................12
V. Regulatory impact statement.....................................24
VI. Cost estimate...................................................24
VII. Additional views of Senator Grassley............................26
VIII.Additional views of Senator Biden...............................28
IX. Additional views of Senator Kennedy.............................33
X. Minority views of Senator Simon.................................34
XI. Minority views of Senator Feingold..............................36
XII. Changes in existing law.........................................39
The amendment is as follows:
Strike all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Child Pornography Prevention Act of
1996''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the use of children in the production of sexually
explicit material, including photographs, films, videos,
computer images, and other visual depictions, is a form of
sexual abuse which can result in physical or psychological
harm, or both, to the children involved;
(2) where children are used in its production, child
pornography permanently records the victim's abuse, and its
continued existence causes the child victims of sexual abuse
continuing harm by haunting those children in future years;
(3) child pornography is often used as part of a method of
seducing other children into sexual activity; a child who is
reluctant to engage in sexual activity with an adult, or to
pose for sexually explicit photographs, can sometimes be
convinced by viewing depictions of other children ``having
fun'' participating in such activity;
(4) child pornography is often used by pedophiles and child
sexual abusers to stimulate and whet their own sexual
appetites, and as a model for sexual acting out with children;
such use of child pornography can desensitize the viewer to the
pathology of sexual abuse or exploitation of children, so that
it can become acceptable to and even preferred by the viewer;
(5) new photographic and computer imaging technologies make
it possible to produce by electronic, mechanical, or other
means, visual depictions of what appear to be children engaging
in sexually explicit conduct that are virtually
indistinguishable to the unsuspecting viewer from unretouched
photographic images of actual children engaging in sexually
explicit conduct;
(6) computers and computer imaging technology can be used
to--
(A) alter sexually explicit photographs, films, and
videos in such a way as to make it virtually impossible
for unsuspecting viewers to identify individuals, or to
determine if the offending material was produced using
children;
(B) produce visual depictions of child sexual
activity designed to satisfy the preferences of
individual child molesters, pedophiles, and pornography
collectors; and
(C) alter innocent pictures of children to create
visual depictions of those children engaging in sexual
conduct;
(7) The creation or distribution of child pornography which
includes an image of a recognizable minor invades the child's
privacy and reputational interests, since images that are
created showing a child's face or other identifiable feature on
a body engaging in sexually explicit conduct can haunt the
minor for years to come;
(8) the effect of visual depictions of child sexual activity
on a child molester or pedophile using that material to
stimulate or whet his own sexual appetites, or on a child where
the material is being used as a means of seducing or breaking
down the child's inhibitions to sexual abuse or exploitation,
is the same whether the child pornography consists of
photographic depictions of actual children or visual depictions
produced wholly or in part by electronic, mechanical, or other
means, including by computer, which are virtually
indistinguishable to the unsuspecting viewer from photographic
images of actual children;
(9) the danger to children who are seduced and molested with
the aid of child sex pictures is just as great when the child
pornographer or child molester uses visual depictions of child
sexual activity produced wholly or in part by electronic,
mechanical, or other means, including by computer, as when the
material consists of unretouched photographic images of actual
children engaging in sexually explicit conduct;
(10)(A) the existence of and traffic in child pornographic
images creates the potential for many types of harm in the
community and presents a clear and present danger to all
children; and
(B) it inflames the desires of child molesters, pedophiles,
and child pornographers who prey on children, thereby
increasing the creation and distribution of child pornography
and the sexual abuse and exploitation of actual children who
are victimized as a result of the existence and use of these
materials;
(11)(A) the sexualization and eroticization of minors through
any form of child pornographic images has a deleterious effect
on all children by encouraging a societal perception of
children as sexual objects and leading to further sexual abuse
and exploitation of them; and
(B) this sexualization of minors creates an unwholesome
environment which affects the psychological, mental and
emotional development of children and undermines the efforts of
parents and families to encourage the sound mental, moral and
emotional development of children;
(12) prohibiting the possession and viewing of child
pornography will encourage the possessors of such material to
rid themselves of or destroy the material, thereby helping to
protect the victims of child pornography and to eliminate the
market for the sexual exploitative use of children; and
(13) the elimination of child pornography and the protection
of children from sexual exploitation provide a compelling
governmental interest for prohibiting the production,
distribution, possession, sale, or viewing of visual depictions
of children engaging in sexually explicit conduct, including
both photographic images of actual children engaging in such
conduct and depictions produced by computer or other means
which are virtually indistinguishable to the unsuspecting
viewer from photographic images of actual children engaging in
such conduct.
SEC. 3. DEFINITIONS.
Section 2256 of title 18, United States Code, is amended--
(1) in paragraph (5), by inserting before the semicolon the
following: ``, and data stored on computer disk or by
electronic means which is capable of conversion into a visual
image'';
(2) in paragraph (6), by striking ``and'';
(3) in paragraph (7), by striking the period and inserting
``; and''; and
(4) by adding at the end the following new paragraph:
``(8) `child pornography' means any visual depiction,
including any photograph, film, video, picture, or computer or
computer-generated image or picture, whether made or produced
by electronic, mechanical, or other means, of sexually explicit
conduct, where--
``(A) the production of such visual depiction
involves the use of a minor engaging in sexually
explicit conduct;
``(B) such visual depiction is, or appears to be, of
a minor engaging in sexually explicit conduct; or
``(C) such visual depiction is advertised, promoted,
presented, described, or distributed in such a manner
that conveys the impression that the material is or
contains a visual depiction of a minor engaging in
sexually explicit conduct.''.
SEC. 4. PROHIBITED ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR
CONTAINING CHILD PORNOGRAPHY.
(a) In General.--Chapter 110 of title 18, United States Code, is
amended by adding after section 2252 the following:
``Sec. 2252A. Certain activities relating to material constituting or
containing child pornography
``(a) Any person who--
``(1) knowingly mails, or transports or ships in interstate
or foreign commerce by any means, including by computer, any
child pornography;
``(2) knowingly receives or distributes--
``(A) any child pornography that has been mailed, or
shipped or transported in interstate or foreign
commerce by any means, including by computer; or
``(B) any material that contains child pornography
that has been mailed, or shipped or transported in
interstate or foreign commerce by any means, including
by computer;
``(3) knowingly reproduces any child pornography for
distribution through the mails, or in interstate or foreign
commerce by any means, including by computer;
``(4) either--
``(A) in the special maritime and territorial
jurisdiction of the United States, or on any land or
building owned by, leased to, or otherwise used by or
under the control of the United States Government, or
in the Indian country (as defined in section 1151),
knowingly sells or possesses with the intent to sell
any child pornography; or
``(B) knowingly sells or possesses with the intent to
sell any child pornography that has been mailed, or
shipped or transported in interstate or foreign
commerce by any means, including by computer, or that
was produced using materials that have been mailed, or
shipped or transported in interstate or foreign
commerce by any means, including by computer; or
``(5) either--
``(A) in the special maritime and territorial
jurisdiction of the United States, or on any land or
building owned by, leased to, or otherwise used by or
under the control of the United States Government, or
in the Indian country (as defined in section 1151),
knowingly possesses any book, magazine, periodical,
film, videotape, computer disk, or any other material
that contains 3 or more images of child pornography; or
``(B) knowingly possesses any book, magazine,
periodical, film, videotape, computer disk, or any
other material that contains 3 or more images of child
pornography that has been mailed, or shipped or
transported in interstate or foreign commerce by any
means, including by computer, or that was produced
using materials that have been mailed, or shipped or
transported in interstate or foreign commerce by any
means, including by computer,
shall be punished as provided in subsection (b).
``(b)(1) Whoever violates, or attempts or conspires to violate,
paragraphs (1), (2), (3), or (4) of subsection (a) shall be fined under
this title or imprisoned not more than 15 years, or both, but, if such
person has a prior conviction under this chapter or chapter 109A, or
under the laws of any State relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward, or the
production, possession, receipt, mailing, sale, distribution, shipment,
or transportation of child pornography, such person shall be fined
under this title and imprisoned for not less than 5 years nor more than
30 years.
``(2) Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or imprisoned not
more than 5 years, or both, but, if such person has a prior conviction
under this chapter or chapter 109A, or under the laws of any State
relating to the possession of child pornography, such person shall be
fined under this title and imprisoned for not less than 2 years nor
more than 10 years.
``(c) It shall be an affirmative defense to a charge of violating
paragraphs (1), (2), (3), or (4) of subsection (a) that--
``(1) the alleged child pornography was produced using an
actual person or persons engaging in sexually explicit conduct;
``(2) each such person was an adult at the time the material
was produced; and
``(3) the defendant did not advertise, promote, present,
describe, or distribute the material in such a manner as to
convey the impression that it is or contains a visual depiction
of a minor engaging in sexually explicit conduct.''.
(b) Technical Amendment.--The table of sections for chapter 110 of
title 18, United States Code, is amended by adding after the item
relating to section 2252 the following:
``2252A. Certain activities relating to material constituting or
containing child pornography.''.
SEC. 5. PENALTIES FOR SEXUAL EXPLOITATION OF CHILDREN.
Section 2251(d) of title 18, United States Code, is amended to read
as follows:
``(d) Any individual who violates, or attempts or conspires to
violate, this section shall be fined under this title or imprisoned not
less than 10 years nor more than 20 years, and both, but if such person
has one prior conviction under this chapter or chapter 109A, or under
the laws of any State relating to the sexual exploitation of children,
such person shall be fined under this title and imprisoned for not less
than 15 years nor more than 30 years, but if such person has 2 or more
prior convictions under this chapter of chapter 109A, or under the laws
of any State relating to the sexual exploitation of children, such
person shall be fined under this title and imprisoned not less than 30
years nor more than life. Any organization that violates, or attempts
or conspires to violate, this section shall be fined under this title.
Whoever, in the course of an offense under this section, engages in
conduct that results in the death of a person, shall be punished by
death or imprisoned for any term of years or for life.''.
SEC. 6. MATERIAL INVOLVING SEXUAL EXPLOITATION OF MINORS.
Section 2252 of title 18, United States Code, is amended--
(1) in subparagraphs (A) and (B) of subsection (a)(4), by
striking ``3 or more books, magazines, periodicals, films,
video tapes, or other material which contain any visual
depiction'' and inserting ``any book, magazine, periodical,
film, video tape, or other material which contains 3 or more
visual depictions''; and
(2) by striking subsection (b) and inserting the following:
``(b)(1) Whoever violates, or attempts or conspires to violate,
paragraphs (1), (2), or (3) of subsection (a) shall be fined under this
title or imprisoned not more than 15 years, or both, but if such person
has a prior conviction under this chapter or chapter 109A, or under the
laws of any State relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, such person shall be fined under
this title and imprisoned for not less than 5 years nor more than 30
years.
``(2) Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this title or
imprisoned not more than 5 years, or both, but if such person has a
prior conviction under this chapter or chapter 109A, or under the laws
of any State relating to the possession of child pornography, such
person shall be fined under this title and imprisoned for not less than
2 years nor more than 10 years.''.
SEC. 7. PRIVACY PROTECTION ACT AMENDMENTS.
Section 101 of the Privacy Protection Act of 1980 (42 U.S.C.
2000aa) is amended--
(1) in subsection (a)(1), by inserting before the parenthesis
at the end the following: ``, or if the offense involves the
production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, the sexual
exploitation of children, or the sale or purchase of children
under section 2251, 2251A, 2252, 2252A, or 2252B of title 18,
United States Code''; and
(2) in subsection (b)(1), by inserting before the parenthesis
at the end the following: ``, or if the offense involves the
production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, the sexual
exploitation of children, or the sale or purchase of children
under section 2251, 2251A, 2252, 2252A, or 2252B of title 18,
United States Code''.
SEC. 8. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this Act,
the amendments made by this Act, and the application of such to any
other person or circumstance shall not be affected thereby.
SEC. 9. PROHIBITED ACTIVITIES RELATING TO MATERIAL DEPICTING THE SEXUAL
EXPLOITATION OF MINORS.
(a) In General.--Chapter 110 of title 18, United States Code, is
amended by adding after section 2252A, as added by section 4 of this
Act, the following:
``Sec. 2252B. Certain activities relating to material depicting the
sexual exploitation of minors
``(a) Any person who--
``(1) knowingly mails, or transports or ships in interstate
or foreign commerce by any means, including by computer, any
visual depiction, if such visual depiction has been created,
adapted, or modified to appear that an identifiable minor is
engaged in sexually explicit conduct;
``(2) knowingly receives or distributes any visual depiction
or any material that contains a visual depiction that has been
mailed, or shipped or transported in interstate or foreign
commerce by any means, including by computer, if such visual
depiction has been created, adapted, or modified to appear that
an identifiable minor is engaged in sexually explicit conduct;
``(3) knowingly reproduces any visual depiction for
distribution through the mails, or in interstate or foreign
commerce by any means, including by computer, if such visual
depiction has been created, adapted, or modified to appear that
an identifiable minor is engaged in sexually explicit conduct;
``(4) either--
``(A) in the special maritime and territorial
jurisdiction of the United States, or on any land or
building owned by, leased to, or otherwise used by or
under the control of the United States Government, or
in the Indian country (as defined in section 1151),
knowingly sells or possesses with the intent to sell
any visual depiction; or
``(B) knowingly sells or possesses with the intent to
sell any visual depiction that has been mailed, or
shipped or transported in interstate or foreign
commerce by any means, including computer, or that was
produced using materials that have been mailed, or
shipped or transported in interstate commerce by any
means, including by computer;
if such visual depiction has been created, adapted, or modified
to appear that an identifiable minor is engaged in sexually
explicit conduct; or
``(5) either--
``(A) in the special maritime and territorial
jurisdiction of the United States, or on any land or
building owned by, leased to, or otherwise used by or
under the control of the United States Government, or
in the Indian country (as defined in section 1151),
knowingly possesses any book, magazine, periodical,
film, videotape, computer disk, or any other material
that contains 3 or more visual depictions; or
``(B) knowingly possesses any book, magazine,
periodical, film, videotape, computer disk, or any
other material that contains 3 or more visual
depictions that has been mailed, or shipped or
transported in interstate or foreign commerce by any
means, including by computer;
if such visual depiction has been created, adapted, or modified
to appear that an identifiable minor is engaged in sexually
explicit conduct;
shall be punished as provided in subsection (b).
``(b)(1) Whoever violates, or attempts or conspires to violate,
paragraphs (1), (2), (3), or (4) of subsection (a) shall be fined under
this title or imprisoned not more than 15 years, or both, but, if such
person has a prior conviction under this chapter or chapter 109A, or
under the laws of any State relating to the production, possession,
receipt, mailing, sale, distribution, shipment, or transportation of a
visual depiction that would be prohibited under this chapter if it had
occurred within the special maritime and territorial jurisdiction of
the United States, such person shall be fined under this title and
imprisoned for not less than 5 years nor more than 30 years.
``(2) Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or imprisoned not
more than 5 years, or both, but, if such person has a prior conviction
under this chapter or chapter 109A, or under the laws of any State
relating to the production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of a visual depiction that
would be prohibited under this chapter if it had occurred within the
special maritime and territorial jurisdiction of the United States,
such person shall be fined under this title and imprisoned for not less
than 2 years nor more than 10 years.''.
(b) Clerical Amendment.--The table of sections for chapter 110 of
title 18, United States Code, is amended by adding after the item for
section 2252A the following:
``2252B. Certain activities relating to material depicting the sexual
exploitation of minors.''.
(c) Definition.--Section 2256 of title 18, United States Code, as
amended by section 3 of this Act, is amended--
(1) in paragraph (7), by striking ``and'';
(2) in paragraph (8), by striking the period and inserting
``; and''; and
(3) by adding at the end the following new paragraph:
``(9) `identifiable minor'--
``(A) means a person who--
``(i) was a minor at the time the visual
depiction was created or at the time the
person's image was captured on the visual
medium used in creating, modifying, or adapting
such visual depiction; and
``(ii) is recognizable in the visual
depiction as an actual person by the person's
likeness or other distinguishing physical
characteristic, such as a unique birthmark or
other recognizable feature; and
``(B) shall not be construed to require proof of the
actual identity of the minor.''.
SEC. 10. AMBER HAGERMAN CHILD PROTECTION ACT OF 1996.
(a) Short Title.--This section may be cited as the ``Amber Hagerman
Child Protection Act of 1996''.
(b) Aggravated Sexual Abuse of a Minor.--Section 2241(c) of title
18, United States Code, is amended--
(1) by inserting ``crosses a State line with intent to engage
in a sexual act with a person who has not attained the age of
12 years, or'' after ``Whoever''; and
(2) by adding at the end the following: ``If the defendant
has previously been convicted of another Federal offense under
this subsection or under section 2243(a), or of a State offense
that would have been an offense under either such provision had
the offense occurred in a Federal prison, unless the death
penalty is imposed, the defendant shall be sentenced to life in
prison.''.
(c) Sexual Abuse of a Minor.--Section 2243(a) of title 18, United
States Code, is amended--
(1) by inserting ``crosses a State line with intent to engage
in a sexual act with a person who, or'' after ``Whoever''; and
(2) by adding at the end the following: ``If the defendant
has previously been convicted of another Federal offense under
this subsection or under section 2241(c), or of a State offense
that would have been an offense under either such provision had
the offense occurred in a Federal prison, unless the death
penalty is imposed, the defendant shall be sentenced to life in
prison.''.
I. Purpose
The purpose of S. 1237 is to amend current Federal
statutes, 18 U.S.C. 2251 et seq., which prohibit the sexual
exploitation of children for the purpose of producing any
visual depiction of a minor engaging in sexually explicit
conduct, and the distribution, possession, receipt,
reproduction, sale or transportation of material depicting
children engaging in sexually explicit conduct.
This legislation is needed due to technological advances in
the recording, creation, alteration, production, reproduction,
distribution and transmission of visual images and depictions,
particularly through the use of computers. Such technology has
made possible the production of visual depictions that appear
to be of minors engaging in sexually explicit conduct which are
virtually indistinguishable to unsuspecting viewers from
unretouched photographs of actual children engaging in
identical sexual conduct. Child pornography, both photographic
and computer-generated depictions of minors engaging in
sexually explicit conduct, poses a serious threat to the
physical and mental health, safety and well-being of our
children. In addition, the development of computer technology
capable of producing child pornographic depictions virtually
indistinguishable from photographic depictions of actual
children threatens the Federal Government's ability to protect
children from sexual exploitation and the production,
distribution and possession of materials produced using minors
engaging in sexually explicit conduct.
S. 1237 addresses the problem of ``high-tech kiddie porn''
by creating a comprehensive statutory definition of the term
``child pornography'' to include material produced using
children engaging in sexually explicit conduct, computer-
generated depictions which are, or appear to be, of minors
engaging in sexually explicit conduct, and materials
advertised, described or otherwise presented as a visual
depiction of a minor engaging in sexually explicit conduct. S.
1237 would further amend Federal law to prohibit the
distribution, possession, receipt, reproduction, sale or
transportation of child pornography, or any visual depiction
that has been created, adapted or modified to appear that an
``identifiable minor,'' as that term is defined in this
legislation, is engaged in sexually explicit conduct. S. 1237
also increases the penalties for child sexual exploitation and
child pornography offenses.
S. 1237 enhances the ability of Federal, State and local
authorities vigorously to enforce statutes prohibiting child
pornography, the sexual exploitation of children and the
selling of children by amending the Privacy Protection Act, 42
U.S.C. 2000aa, to extend the Act's existing exemption for
searches and seizures in cases where the alleged offense
consists of the receipt, possession or communication of
information relating to the national defense, classified
information, or restricted data under the provisions of
specified statutes, to include searches and seizures in child
pornography, child sexual exploitation and child selling cases.
S. 1237 also seeks to enhance the protection of minors
against sexual abuse and aggravated sexual abuse by amending
current Federal law, 18 U.S.C. 2241(c) and 2243(a), to increase
the penalties for those offenses.
II. Legislative History
S. 1237 was introduced in the 104th Congress by Senator
Orrin Hatch on September 13, 1995. Three Senators joined
Senator Hatch as original cosponsors: Senators Abraham,
Grassley, and Thurmond. Subsequently, four Senators joined as
cosponsors: Senators Simpson, Feinstein, Inhofe, and Coats. The
bill was referred to the Committee on the Judiciary.
The Judiciary Committee held a hearing on S. 1237 on June
4, 1996. The Committee heard testimony from Kevin Di Gregory,
Deputy Assistant Attorney General, Criminal Division, U.S.
Department of Justice; Jeffrey Dupilka, Deputy Chief Inspector
for Criminal Investigations, U.S. Postal Inspection Service;
Mrs. Dee Jepsen, president, Enough Is Enough; Prof. Frederick
Schauer, Frank Stanton, Professor of the First Amendment,
Kennedy School of Government, Harvard University; Ms. Judith
Krug, director of the Office for Intellectual Freedom of the
American Library Association; Dr. Victor Cline, emeritus
professor of psychology, University of Utah; and Bruce Taylor,
president and chief counsel, the National Law Center for
Children and Families.
On July 25, 1996, a motion to favorably report S. 1237, as
amended, was approved by the Judiciary Committee by a vote of
16 to 2. Those voting in favor were: Senators Hatch, Thurmond,
Simpson, Grassley, Specter, Brown, Thompson, Kyl, DeWine,
Abraham, Biden, Kennedy, Leahy, Heflin, Kohl, and Feinstein.
Those opposed were: Senators Simon and Feingold.
III. Section-by-Section Analysis
Section 1
This section sets forth the short title for the
legislation, the ``Child Pornography Prevention Act of 1996.''
Section 2
This section sets forth a statement of congressional
findings with respect to child pornography and computer-
generated depictions of, or which appear to be of, minors
engaging in sexually explicit conduct. Child pornography is a
form of sexual abuse and exploitation which can result in
physical or psychological harm, or both, to children. Child
pornography permanently records the victim's abuse, can cause
continuing harm to the depicted individual for years to come,
can be used to seduce minors into sexual activity, and is used
by pedophiles and child sex abusers to stimulate and whet their
own sexual appetites.
New photographic and computer imaging technologies are
capable of producing computer-generated visual depictions of
children engaging in sexually explicit conduct which are
virtually indistinguishable to an unsuspecting viewer from
unretouched photographs of actual minors engaging in such
conduct. The effect of such child pornography on a child
molester or pedophile using the material to whet his sexual
appetites, or on a child shown such material as a means of
seducing the child into sexual activity, is the same whether
the material is photographic or computer-generated depictions
of child sexual activity. Computer-generated child pornography
results in many of the same types of harm, and poses the same
danger to the well-being of children, as photographic child
pornography, and provide a compelling governmental interest for
prohibiting the production, distribution, possessing, sale or
viewing of all forms of child pornography, including computer-
generated depictions which are, or appear to be, of children
engaging in sexually explicit conduct.
Section 3
This section amends the definition of the term ``visual
depiction'' at 18 U.S.C. 2256(5) to include stored computer
data.
This section further amends title 18 of the United States
Code by adding a new subsection, as 18 U.S.C. 2256(8),
establishing a definition of the term ``child pornography,''
which is defined as ``any visual depiction, including any
photograph, film, video, picture, drawing or computer or
computer-generated image or picture, which is produced by
electronic, mechanical or other means, of sexually explicit
conduct, where: (1) its production involved the use of a minor
engaging in sexually explicit conduct, or; (2) such visual
depiction is, or appears to be, of a minor engaging in sexually
explicit conduct; or (3) it is advertised, distributed,
promoted or presented in such a manner as to convey the
impression that it is a visual depiction of a minor engaging in
sexually explicit conduct.''
Section 4
This section adds a new and distinct section to title 18 of
the United States Code, as 18 U.S.C. 2252A. This section makes
it unlawful for any person to knowingly mail, or ship, or
transport child pornography in interstate or foreign commerce;
to receive or distribute in interstate or foreign commerce
child pornography, or material containing child pornography
that has been mailed, or shipped, or transported in interstate
or foreign commerce; or to reproduce child pornography for
distribution through the mail. This section further makes it
unlawful in the special maritime and territorial jurisdiction
of the United States, or on any land or building owned or
controlled by the United States, or in the Indian territory, to
knowingly sell, or possess with intent to sell, any child
pornography; or to possess any book, magazine, periodical,
film, videotape, computer disk, or any other material that
contains three or more images of child pornography.
Section 2252A mirrors with respect to ``child pornography''
(as that term is defined under section 3 of this bill) the
prohibitions on the distribution, possession, receipt,
reproduction, sale or transportation of material produced using
an actual minor engaging in sexually explicit conduct contained
in 18 U.S.C. 2252. The penalties in sections 2252 and 2252A
would be identical. Violation of paragraphs (1), (2), or (3) of
section 2252A(a) pertaining to the distribution, reproduction,
receipt, sale or transportation of child pornography would be
fined or imprisoned for not less than 15 years, or both; a
repeat offender with a prior conviction under chapter 109A or
110 of title 18, or under any State child abuse law or law
relating to the production, receipt or distribution of child
pornography would be fined and imprisoned for not less than 5
years nor more than 30 years. Any person who violates paragraph
(4) of section 2252A(a) pertaining to the possession of child
pornography would be fined or imprisoned for not more than 5
years, or both; a repeat offender with a prior conviction under
chapter 109A or 110 of title 18, or under any State law
relating to the possession of child pornography would be fined
and imprisoned for not less than 2 years nor more than 10
years.
This section also establishes an affirmative defense for
material depicting sexually explicit conduct where the material
was produced using actual persons engaging in sexually explicit
conduct and each such person was an adult at the time the
material was produced, provided the material has not been
pandered as child pornography.
Section 5
This section amends 18 U.S.C. 2251(d) to increase the
penalties for sexual exploitation of children. An individual
who violates section 2251 would be fined or imprisoned for not
less than 10 years nor more than 20 years, or both. A repeat
offender with one prior conviction under chapter 109A or 110 of
title 18, or under any State law relating to the sexual
exploitation of children would be fined and imprisoned for not
less than 15 years nor more than 30 years; an individual with
two or more prior such convictions would be fined and
imprisoned for not less than 30 years nor more than life. If an
offense under section 2251 resulted in the death of a person,
the offender would be punished by death or imprisonment for any
term of years or for life.
Section 6
This section amends 18 U.S.C. 2252(a)(4)(A) and (B) to
prohibit the possession of any book, magazine, periodical,
film, videotape, computer disk, or any other material that
contains three or more images of child pornography. Current law
prohibits the possession of three or more books, magazines,
periodicals, films, video tapes or other material which
contains any visual depiction of a minor engaging in sexually
explicit conduct. Since a single computer disk is capable of
storing hundreds of child pornographic images, current law
effectively permits the possession of substantial collections
of child pornography, a loophole that will be closed under this
section.
This section also amends 18 U.S.C. 2252(d) to increase the
penalties for offenses involving material produced using a
minor engaging in sexually explicit conduct. As amended, 18
U.S.C. 2252 will provide the identical penalties as 18 U.S.C.
2252A for offenses relating to the distribution, possession,
receipt, reproduction, sale or transportation of prohibited
child pornographic material.
Section 7
This section amends the Privacy Protection Act, 42 U.S.C.
2000aa, to extend the existing exemption for searches and
seizures where the offense consists of the receipt, possession
or communication of information pertaining to the national
defense, classified information or restricted data, to include
an exemption for searches and seizures where the offense
involves the sexual exploitation of children, the sale or
buying of children, or the production, possession, sale or
distribution of child pornography under title 18 of the United
States Code, sections 2251, 2251A, 2252, 2252A, or 2252B.
Section 8
This section includes in the bill a severability clause
providing that in the event any provision of the bill,
amendment made by the bill, or application of the bill to any
person or circumstance is held to be unconstitutional, the
remainder of the bill shall not be affected.
Section 9
This section prohibits the use of identifiable minors in
visual depictions of sexually explicit conduct. Section 4 of
the bill incorporates section 3's definition of child
pornography and would prohibit all forms of ``child
pornography,'' whether the material was produced using an
actual minor or is entirely computer-generated. While the
Committee believes that section 3's definition of ``child
pornography'' is constitutional, 1 the Committee added a
separate section 9 because of the concern that the definition,
and its application via section 4, may be at risk of judicial
invalidation insofar as it reaches images that do not depict
actual minors. Section 9 prohibits only those visual depictions
that have been created, adapted, or modified to make it appear
that an identifiable minor was engaged in sexually explicit
conduct. Thus, this section, which covers a subset of section
4's prohibitions, aims to prevent the harm caused to minors
only where identifiable images are used in pornographic
depictions, even where the identifiable minor is not directly
involved in sexually explicit activities, as required by
current law. If, contrary to the Committee's expectation,
courts invalidate section 4's prohibition of computer-generated
depictions of minors engaging in sexually explicit conduct,
section 9's free-standing prohibition of visual depictions of
an identifiable minor created, altered or modified to make it
appear the depicted minor is engaging in sexually explicit
conduct will remain intact and enforceable.
---------------------------------------------------------------------------
\1\ The Department of Justice has advised the Committee of its view
that sections 3 and 4 are constitutional; testimony of Deputy Assistant
Attorney General Kevin Di Gregory, June 4, 1996.
---------------------------------------------------------------------------
Section 9 will be added as a new and distinct section to
title 18 of the United States Code--section 2252B--just as the
provisions of section 4 will be added as a new section of the
Code--section 2252A. Although there is a severability provision
in the bill, the exact scope of severability is sometimes a
difficult question for courts to resolve--even in the case of
statutes, such as S. 1237, that contain severability
provisions. Therefore, given any possibility that section 4
might be held to be unconstitutional as it applies to wholly
computer-generated images, the Committee wanted to create a
separate and distinct section of the Code to make absolutely
clear that the new sections of title 18 created by this bill--
2252A and 2252B--are separate, distinct, and entirely
severable.
Subsection (c)(3) defines an ``identifiable minor'' to mean
a minor who is capable of being recognized as an actual person
in the visual depiction. The person may be recognizable by his
face or another distinguishing feature, such as a birthmark or
some other unique physical characteristic. Under this
definition, the prosecution would not be required to prove the
actual identity of the minor. Rather, the prosecution need only
show, through either factual evidence or expert testimony, that
the minor is capable of being identified from the visual
depiction.
In all other respects, section 9(a) mirrors the
prohibitions in section 4(a), including prohibitions against
mailing and transporting prohibited visual depictions;
receiving and distributing prohibited visual depictions;
reproduction of visual depictions with the intent to transport
or distribute them; selling or possessing with the intent to
sell prohibited visual depictions; and possessing books or
other material containing three or more prohibited visual
depictions on property within the jurisdiction of the United
States or that has been transported in interstate commerce or
the mails. The penalties in section 9 are also identical to
those in section 4.
Section 10
This section, the Amber Hagerman Child Protection Act of
1996, amends 18 U.S.C. 2241(c) and 2243(a) to provide for a
mandatory sentence of life in prison for repeat offenders
convicted of sexual abuse of a minor or aggravated sexual abuse
of a minor.
IV. Discussion
A. Child Pornography threatens the physical and mental health and the
well-being of children
Child pornography is a particularly pernicious evil,
something that no civilized society can or should tolerate. It
abuses, degrades and exploits the weakest and most vulnerable
members of our society, our children. It poisons the minds and
spirits of our youth, robbing them of their innocence, and
debases our society as a whole. It has been estimated that
pornography, including child pornography, is an $8 to $10
billion a year business, and is said to be organized crime's
third biggest money maker, after drugs and gambling.
Child pornography plays a critical role in the vicious
cycle of child sexual abuse and exploitation. As Deputy
Assistant Attorney General Kevin Di Gregory testified at the
Committee's June 4, 1996, hearing on S. 1237, child pornography
``represents a grave risk to children and is primarily designed
to feed pedophile lusts.'' The elimination of child pornography
and the protection of children from sexual exploitation provide
a compelling governmental interest for prohibiting the
production, distribution, possession or viewing of any and all
forms of child pornography. As the Supreme Court stated in New
York v. Ferber, 458 U.S. 747, 756-57 (1982), ``It is evident
beyond the need for elaboration that a State's interest in
`safeguarding the physical and psychological well-being of a
minor' is `compelling'. * * * A democratic society rests, for
its continuance, upon the healthy, well-rounded growth of young
people into full maturity as citizens. * * * The prevention of
the sexual exploitation and abuse of children constitutes a
government objective of surpassing importance.''
Child pornography stimulates the sexual appetites and
encourages the activities of child molesters and pedophiles,
who use it to feed their sexual fantasies. Law enforcement
investigations have verified that pedophiles almost always
collect child pornography or child erotica. While some only
collect and fantasize about the material without acting upon
those fantasizes, in many cases coming to the attention of law
enforcement the arousal and fantasy fueled by child pornography
is only a prelude to actual sexual activity with children. Mrs.
Dee Jepsen, president of Enough is Enough, testified at the
June 4, 1996, Committee hearing that pornography ``is an
addiction that escalates, requiring more graphic or violent
material for arousal, then leads to the persons in the
materials being seen as objects, without personality, rights,
dignity or feelings. The final stage is `acting out,' doing
what has been viewed in the pornography. This leads to crimes
of sexual exploitation and violence. * * * In the case of
pedophiles * * * child pornography is actually `hard-copy'
visualizations of their dangerous mental fantasies of having
sex with children.'' Dr. Victor Cline testified at the June 4,
1996, hearing:
[t]he best evidence to date suggests that most or all
sexual deviations are learned behavior. * * * In the
case of pedophiles, the overwhelming majority * * * use
child pornography and/or create it to stimulate and
whet their sexual appetites which they masturbate to
then use later as a model for their own sexual acting
out with children. * * * [T]he use of child pornography
in time desensitizes the viewer to its pathology no
matter how aberrant or disturbing. It becomes
acceptable and preferred. The man always escalates to
more deviant material, and the acting out continues and
escalates despite very painful consequences such as
destruction of the family, loss of spouse, children,
job, health or incarceration after committing criminal
acts. * * * [A]ny kind of pornography, child or
adolescent * * * can act as an incitement to imitate it
in real life with someone they have access to and can
intimidate not to tell. * * * With a large majority of
them an underlying thread is the use of child,
adolescent, or adult pornography to stimulate appetite
and provide models of sexual abuse as well as be used
as tools to seduce new victims. In my experience, it's
the child pornography that is the most malignant.
Child pornography is used by pedophiles and child molesters
as a facilitator or ``training manual'' in acquiring their own
deviation, and also as a device to break down the resistance
and inhibitions of their victims or targets of molestation,
especially when these are children. In her book ``Child
Pornography,'' Dr. Shirley O'Brien states ``a direct
relationship exists between pornographic literature and the
sexual molestation of young children. Law-enforcement officers
say they routinely find pornographic materials when they
investigate sex crimes against children.'' A child who may be
reluctant to engage in sexual activity with an adult, or to
pose for sexually explicit photos, can sometimes be persuaded
to do so by viewing depictions of other children participating
in such activity. Child molesters and pedophiles use child
pornography to convince potential victims that the depicted
sexual activity is a normal practice; that other children
regularly participate in sexual activities with adults or
peers. Peer pressure can have a tremendous effect on children,
helping to persuade a child that participating sexual activity
such as that depicted in the material is ``all right.'' In her
book, Dr. O'Brien describes what she described as the ``cycle''
of child pornography: (1) child pornographic material is shown
to a child for ``educational purposes''; (2) an attempt is made
to convince a child that explicit sex is acceptable, even
desirable; (3) the child is convinced that other children are
sexually active and that such conduct is okay; (4) child
pornography desensitizes the child, lowering the child's
inhibitions; (5) some of these sessions progress to sexual
activity involving the child; (6) photographs or films are
taken of the sexual activity; and (7) this new child
pornographic material is used to attract and seduce yet more
child victims.
The sexual use of children is criminal. Pornographic
material produced using a minor engaging in sexually explicit
conduct is literally the photographic record of a crime in
progress. ``The use of children as subjects of pornographic
materials is harmful to the physiological, emotional and mental
health of the child.'' New York v. Ferber, supra at 758. ``It
has been found that sexually exploited children are unable to
develop healthy affectionate relationships in later life, have
sexual dysfunctions, and have a tendency to become sexual
abusers as adults. * * * Sexually exploited children (are)
predisposed to self-destructive behavior such as drug and
alcohol abuse or prostitution.'' New York v. Ferber, supra,
footnote 9.
``Children used in pornography are desensitized and
conditioned to respond as sexual objects. * * * They must deal
with the permanency, longevity, and circulation of such record
of their sexual abuse.'' 2 ``Pornography poses an even
greater threat to the child victim than does sexual abuse or
prostitution. Because the child's actions are reduced to a
recording, the pornography may haunt him in future years, long
after the original misdeed took place. A child who has posed
for a camera must go through life knowing that the recording is
circulating within the mass distribution system for child
pornography. * * * It is the fear of exposure and the tension
of keeping the act secret that seems to have the most profound
emotional repercussions.'' New York v. Ferber, supra at 760,
footnote 10.
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\2\ Kenneth Lanning, National Center for Missing and Exploited
Children, ``Child Molesters: A Behavioral Analysis,'' p. 25
---------------------------------------------------------------------------
Child pornography can also be used to blackmail victims of
sexual abuse. The existence of sexually explicit photographs or
other materials, and the threat that they will be shown to
family or friends, can effectively silence a victim into not
revealing the abuse to parents or the authorities. 3 The
child may also be required to recruit siblings or friends for
the molester.
---------------------------------------------------------------------------
\3\ Id., at p. 29.
---------------------------------------------------------------------------
Current Federal law, U.S.C. title 18, sec. 2251 et seq.,
prohibits the sexual exploitation of children for the purpose
of producing any visual depiction of a minor engaging in
sexually explicit conduct, and the distribution, possession,
receipt, reproduction, sale or transportation of material
depicting children engaging in sexually explicit conduct. The
term ``sexually explicit conduct'' is defined at 18 U.S.C.
2256(2). These statutes apply, however, only to visual
depictions of children engaging in sexually explicit conduct
whose production involved the use of an actual minor engaging
in such conduct. Under present law, the Government must prove
that every piece of child pornography is of a real minor being
sexually exploited. Regrettably, computers and computer imaging
technology unheard of only a few short years ago have opened
the door to an entirely new means of producing child
pornography.
b. computer-generated child pornography poses the same threat to the
well-being of children as photographic child pornography
The ability of computer animation to create realistic-
appearing images and effects is, of course, well known to the
tens of millions of moviegoers who have seen such recent hit
films as Jurassic Park, Twister, and Independence Day. New and
increasingly less complex and expensive photographic and
computer imaging technologies make it possible for individuals
to produce on home computers visual depictions of children
engaging in sexually explicit conduct that are virtually
indistinguishable from unretouched photographic images of
actual children engaging in sexually explicit conduct--material
that is outside the scope of current federal law. As Deputy
Assistant Attorney General Di Gregory testified:
[p]edophiles have created and used altered or
doctored images for a long time. In the past these
images have run the gamut from magazine cutouts crudely
assembled with photographs of children from the
pedophile's neighborhood, to artfully rendered collages
which have been painstakingly assembled and then
rephotographed so that only careful inspection reveals
the image as false. But what has always been the case
in the past--that the images were readily revealed as
false with careful inspection--may no longer be true,
as image-altering software and computer hardware are
used to create altered images which appear all too real
of children engaging in sexual activity. Soon it will
not be necessary to actually molest children to produce
child pornography which exploits and degrades them--and
which can be used to further actual abuse. All that
will be necessary will be an inexpensive computer,
readily available software, and a photograph of a
neighbor's child shot while the child walked to school
or waited for the bus.
Computers can be used to alter perfectly innocent pictures
of children, taken from books, magazines, catalogs, or videos,
to create visual depictions of those children engaging in any
imaginable form of sexual conduct. A child pornographer in
Canada was convicted of copying innocuous pictures of children
from books and catalogs onto a computer, then using the
computer to alter the images to remove the childrens' clothing
and arrange the children into sexual positions involving
children, adults and even animals. 4 According to computer
graphics specialists with the United States Postal Inspection
Service, all that is required to produce child pornography is
an IBM-compatible personal computer with Windows 3.1 or Windows
95, or an Apple MacIntosh computer. Images can be loaded onto
the computer in any of several ways (existing images can be
loaded onto the computer from a disk or CD; images taken by a
digital camera can be loaded from a disk; a scanner can be used
to load photographs, book and magazines pictures, etc.; a video
card, either internal or in an external device, can capture and
load frames from video tapes or directly from a television; or
a modem can download images from the Internet or other online
computer service) and then visual depictions of children
engaging in sexually explicit conduct can be produced using
readily available, off-the-shelf image-editing and ``morphing''
computer software costing as little as $50.
---------------------------------------------------------------------------
\4\ The Washington Times, July 23, 1995.
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Computer-imaging technology permits creation of
pornographic depictions designed to satisfy the preferences of
individual sexual predators. As Dr. Cline testified at the June
4, 1996 hearing, most pedophiles and child molesters have
special preferences with respect to child pornography, in terms
of age, physical appearance and sexual acts or poses of
depicted minors. The ability to alter or ``morph'' images via
computer to produce any desired child pornographic depiction
enables pedophiles and pornographers to create ``custom-
tailored'' pornography which will heighten the material's
effect on the viewer and thus increase the threat this material
poses to children. A child molester or pedophile can create,
alter or modify a perfectly innocuous image or picture of a
child he finds sexually attractive or desirable and produce any
manner and number of pornographic depictions featuring that
child, which he can use to stimulate his own sexual appetite
for that particular child, with potentially tragic consequences
for the child. The computer-produced depictions could be shown
to the child in an effort to seduce or blackmail the child into
submitting to sexual abuse or exploitation, or to other
children who know the depicted child in order to seduce them.
Dr. Cline testified that seeing such a computer-created
depiction would be extremely traumatic for the depicted child.
Computers can also be used to alter sexually explicit
photographs, films and videos in such a way as to make it
virtually impossible for prosecutors to identify individuals,
or to prove that the offending material was produced using
children. ``Technology may have made it possible for criminals
to escape responsibility for violating the existing law, even
when the pictures are of real minor children being sexually
abused or exploited. The day will soon arise, if not here
already, that our inability to distinguish the real from the
apparent * * * child pornography will raise a reasonable doubt
that a picture is really * * * of a real child being molested
and exploited. * * * If the government must continue to prove
beyond a reasonable doubt that mailed photos, smuggled
magazines or videos, traded pictures, and computer images being
transmitted on the Internet, are indeed actual depictions of an
actual minor engaging the sex portrayed, then there could be a
built-in reasonable doubt argument in every child exploitation/
pornography prosecution.'' 5 This threat is already a
reality for Federal law enforcement. Deputy Assistant Attorney
General Di Gregory testified:
\5\ Written testimony of Bruce A. Taylor, June 4, 1996.
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In addition to our expectation that this material
(computer-generated child pornography) will pose
serious problems in the future, we have already been
confronted with cases in which child pornographers
attempted to use the gap in existing law as a legal
defense. For example, in the first-ever federal trial
involving charges of importation of child pornography
by computer, United States v. Kimbrough, 69 F.3d 723
(5th Cir. 1995), the defendant offered evidence that
currently available computer programs could be used to
alter a photograph of an adult so that it looked like a
photograph of a child. From that evidence, the defense
then argued that the Government had the burden of
proving that each item of alleged child pornography
did, in fact, depict an actual minor rather than an
adult made to look like one, and that the defendant
should be acquitted if the government did not meet that
burden.
In that case, the defense was overcome through a
carefully executed cross-examination and production, in
court, of some of the original magazines from which the
computer-generated images were scanned. But it is also
true that in 1993, when the Kimbrough case was tried,
the technology was still at an early stage of
development and as such, the defense was not as potent
as it might become in the future. Moreover, magazine
archives will be of less value to prosecutors since
child pornography produced today will no longer predate
the availability of graphic imaging software. Thus, the
Government will no longer be able to produce the
original child pornography magazine against which a
comparison may be made.
Thus the enforcement of existing laws against the sexual
exploitation of children with respect to the production,
distribution or possession of child pornography requires
Federal law to be updated to keep pace with the technology of
pornography.
Some may argue that because the computerized production of
child pornography does not directly involve, or law enforcement
officials may not be able to prove the use of, actual children
engaging in sexually explicit conduct, such material somehow
does not harm or threaten our children, and we should therefore
turn a blind legal eye to its existence. This view ignores the
reality of child sexual abuse and exploitation, and the
critical role child pornography plays in such criminal conduct.
As discussed above, a major part of the threat to children
posed by child pornography is its effect on the viewers of such
material, including child molesters or pedophiles who use such
material to stimulate or whet their own sexual appetites. To
such sexual predators, the effect is the same whether the child
pornography consists of photographic depictions of actual
children or visual depictions produced wholly or in part by
computer. To such a viewer of child pornographic images the
difference ``is irrelevant because they are perceived as minors
by the psyche.'' 6
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\6\ Written testimony of Dr. Victor Cline, June 4, 1996.
---------------------------------------------------------------------------
As shown by the testimony received at the Committee's June
4, 1996, hearing from Deputy Assistant Attorney General Di
Gregory, Mrs. Jepsen, Dr. Cline, and Mr. Taylor, with respect
to child sexual abuse and exploitation, the danger to actual
children who are seduced and molested with the aid of child sex
pictures is as great when the child pornographer or child
molester uses visual depictions of child sexual activity
produced wholly or in part by electronic, mechanical or other
means, including by computer, as when the material consists of
unretouched photographic images of actual children engaging in
sexually explicit conduct.
S. 1237 will close this computer-generated loophole in
Federal child exploitation laws and give our law enforcement
authorities the tools they need to protect our children by
stemming the increasing flow of high-tech child pornography. It
would establish, for the first time, a Federal statutory
definition of child pornography. Any visual depiction of
sexually explicit conduct, however produced, would be
classified as ``child pornography'' if: (a) its production
involved the use of a minor engaging in sexually explicit
conduct, or; (b) it depicts, or appears to depict, a minor
engaging in sexually explicit conduct, or; (c) it is promoted
or advertised as depicting a minor engaging in sexually
explicit conduct. Under S. 1237, computer-generated child
pornographic images, which in real life are increasingly
indistinguishable in the eyes of viewers from unretouched
photographs of actual children engaging in sexually explicit
conduct, and can result in many of the same types of harm to
children and society, would now also be indistinguishable in
the eyes of the law from pornographic material produced using
actual children.
Pornographic depictions which appear to be those of
children engaging in sexually explicit conduct, including
computer-generated images, deserve no first amendment
protection because the State's compelling interest in
protecting children is directly advanced by prohibiting the
possession or distribution of such material, for many of the
same reasons applicable to the child pornographic material at
issue in Ferber. In that case, the Court dispensed with the
obscenity test of Miller v. California, 413 U.S. 15 (1973), and
upheld a State law banning the production and promotion of any
picture of a child engaging in sexual conduct or lewd
exhibition of the genitals. The Court held that child
pornography is not entitled to first amendment protection, and
that ``the States are entitled to greater leeway in the
regulation of pornographic depictions of children'' for the
following reasons:
First. * * * [A] state's interest in ``safeguarding
the physical and psychological well-being of a minor''
is ``compelling''. * * * The prevention of sexual
exploitation and abuse of children constitutes a
governmental objective of surpassing importance. * * *
Second. The distribution of photographs and films
depicting sexual activity is intrinsically related to
the sexual abuse of children in at least two ways.
First, the materials * * * are a permanent record of
the children's participation and the harm to the child
is exacerbated by their circulation. Second, the
distribution network for child pornography must be
closed if the production of material which requires the
sexual exploitation of children is to be effectively
controlled. Indeed. * * * It is difficult, if not
impossible, to halt the exploitation of children by
pursuing only those who produce the photographs and
movies. * * * The most expeditious if not the only
practical method of law enforcement may be to dry up
the market for this material by imposing severe
criminal penalties on persons selling, advertising, or
otherwise promoting the product * * *.
Third. The advertising and selling of child
pornography provide an economic motive for and are thus
an integral part of the production of such materials. *
* *
Fourth. The value of permitting live performances and
photographic reproductions of children engaged in lewd
sexual conduct is exceedingly modest, if not de
minimis. * * *
Fifth. Recognizing and classifying child pornography
as a category of material outside the protection of the
First Amendment is not incompatible with our earlier
decisions. ``The question whether speech is, or is not,
protected by the First Amendment often depends on the
content of the speech.'' New York v. Ferber, supra, at
756-764.
Prohibiting the possession of computer-generated child
pornography will prevent pedophiles from using these images to
seduce children into sexual activity, and will prevent sex
crimes against children. Child pornography is not only ``crime
scene photos'' of child sexual abuse and exploitation, but also
a criminal tool for such abuse and exploitation. It is a tool
of incitement for pedophiles and child molesters, and a tool of
seduction for child victims. Its relationship and involvement
with physical criminal conduct directed at children is
inseparable. As the Court quoted a New York lawmaker in Ferber,
at 761, ``It is irrelevant to the child (who has been abused)
whether or not the material * * * has a literary, artistic,
political or social value.'' It is equally irrelevant to a
molested child shown child pornographic material to seduce or
entice him into engaging in sexual activity, or to persuade or
blackmail the child into recruiting other child victims, or
into remaining silent about the abuse, whether the material was
produced by camera or computer, or a combination of the two. It
is also irrelevant to the child molester or pedophile who uses
depictions of children engaging in sexually explicit conduct to
stimulate or whet his own sexual appetites. The molester or
pedophile may not even know the difference, nor would he care.
Computer-generated images which appear to depict minors
engaging in sexually explicit conduct are just as dangerous to
the well-being of our children as material produced using
actual children.
The conduct depicted in the material made criminal under
this bill is a lewd depiction or representation of a child
engaging in sexually explicit conduct. There is no difference
between the content of photographs or films depicting such
conduct produced using actual children and the content of the
computer-generated depictions made contraband under this bill.
Constitutional immunity is not extended to materials that are
``used as an integral part of conduct in violation of a valid
criminal statute.'' Id., at 762. This legislation is aimed at
child pornographic material that is, and will continue to be,
used to incite pedophiles to molest real children, to seduce
real children into being molested, and to convince real
children into making more child pornography. Like material
produced using actual children engaging in sexually explicit
conduct, pornographic images of persons who appear to be
minors, depictions indistinguishable from photographs of real
children but which are produced by computer, bear heavily on
the welfare of the next generation of children who will be
sexually abused and exploited by the harmful effects that any
form of child pornography has on pedophile molesters and their
child victims. It is therefore permissible to consider
computer-generated pornographic materials which appear to be
depictions of actual minors engaging in sexually explicit
conduct as without the protection of the first amendment.
The State's compelling interest in protecting children is
also advanced by prohibiting the possession or distribution of
computer-generated child pornography because the enforcement of
child pornography and child sexual exploitation laws will be
severely hampered if the ``distribution network for child
pornography'' is flooded with computer-generated material. As
the technology of computer-imaging progresses, it will become
increasingly difficult, if not impossible, to distinguish
computer-generated from photographic depictions of child sexual
activity. It will therefore become almost impossible for the
Government to meet its burden of proving that a pornographic
image is of a real child. Statutes prohibiting the possession
of child pornography produced using actual children would be
rendered unenforceable and pedophiles who possess pornographic
depictions of actual children will go free from punishment. The
Government's inability to detect or prove the use of real
children in the production of child pornography, and thus the
reduced risk of punishment for such criminal conduct, could
have the effect of increasing the sexually abusive and
exploitative use of children to produce child pornography.
C. S. 1237 is not unconstitutionally overbroad.
To ensure that the statute, and in particular the
classification of a visual depiction which ``appears to be'' of
a minor engaging in sexually explicit conduct as child
pornography, is not unconstitutionally overbroad, S. 1237 does
not change or expand the existing statutory definition (at 18
U.S.C. 2256(2)) of the term ``sexually explicit conduct.'' This
definition, including the use of the term ``lascivious,'' has
been judicially reviewed and upheld. United States v. Knox, 32
F.3d 733 (3rd Cir. 1994); cert denied, 115 S. Ct. 897 (1995);
United States v. Wiegand, 812 F.2d 1239, 1243 (9th Cir.); cert
denied, 484 U.S. 856 (1987).\7\ See also, United States v. X-
Citement Video, Inc., 982 F.2d 1285 (9th Cir. 1992); 115 S. Ct.
464, 472 (1995). S. 1237 does not, and is not intended to,
criminalize or prohibit any innocuous depiction of a minor--
photograph, film, video, or computer image--however that
depiction is produced. Using two oft-cited examples, Coppertone
suntan lotion advertisements featuring a young girl in a
bathing suit are not now, and will not become under S.1237,
child pornography; neither would the proverbial parental
picture of a child in the bathtub or lying on a bearskin rug.
---------------------------------------------------------------------------
\7\ ``Lascivious is no different than the term `lewd,' a
commonsensical term whose constitutionality was specifically upheld in
Miller v. California, 413 U.S. 15, 25 (1973), and in Ferber, 458 U.S.
at 765.'' U.S v. Wiegand, supra, at 1243-44.
---------------------------------------------------------------------------
S. 1237 also does not, and is not intended to, apply to a
depiction produced using adults engaging is sexually explicit
conduct, even where a depicted individual may appear to be a
minor. Accordingly, the bill includes in the proposed 18 U.S.C.
2252A an affirmative defense provision for material produced
using adults. Under that provision, it is an affirmative
defense to a charge under section 2252A that the material in
question was produced using an actual person or persons
engaging in sexually explicit conduct, each of whom was an
adult at the time the material was produced, provided the
defendant did not intentionally pander the material as being
child pornography.
S. 1237's prohibition against a visual depiction which
``appears to be'' of a minor engaging in sexually explicit
conduct applies to the same type of photographic images already
prohibited, but which does not require the use of an actual
minor in its production. Under this bill, the prohibition
against child pornography is extended from photographic
depictions of actual minors engaging in sexually explicit
conduct to the identical type of depiction, one which is
virtually indistinguishable from the banned photographic
depiction, which can and is now being produced using technology
which was not contemplated or in existence when current Federal
child sexual exploitation and child pornography laws were
adopted. A bill that does not criminalize an intolerable range
of constitutionally protected conduct or speech is not
unconstitutionally overbroad. Osborne v. Ohio, 495 U.S. 103
(1990).
It has been suggested, including by Prof. Frederick Schauer
in his June 4, 1996 written testimony, that language in the
Ferber decision that ``the distribution of descriptions or
other depictions of sexual conduct, not otherwise obscene,
which do not involve live performance or photographic or other
visual reproduction of live performances, retain First
Amendment protection'' (supra at 764-65) suggests that Congress
cannot prohibit visual depictions which ``appear to be'' of
minors engaging in sexually explicit conduct but were produced
without using actual children. The Committee disagrees. At the
time of Ferber, in 1982, the technology to produce visual
depictions of child sexual activity indistinguishable from
unretouched photographs of actual children engaging in ``live
performances'' did not exist. Further, the cited language from
the Ferber decision, on its face, distinguishes between
photographic reproductions of live performances of sexual
conduct and other visual depictions of such conduct, while
making it clear that both are outside the protection of the
first amendment. As the Committee heard from witnesses before
it and as it has found, the effect on children exposed to
computer-generated child pornographic material, and on child
molesters and pedophiles who create and use such material, is
the same as that from visually indistinguishable photographic
depictions of actual children engaging in such conduct.
Computer-generated child pornographic material therefore poses
a threat to the well-being of children comparable to that posed
by photographic child pornography. The Government therefore has
an interest in prohibiting computer-generated child
pornographic depictions equally compelling as its interest in
prohibiting child pornography produced using actual children.
8
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\8\ Because of the possibility, however, that despite the
Committee's considered view, some courts might find the application of
S. 1237's section 4 to be an infringement of the first amendment
insofar as it applies to computer-generated images not produced using
an actual minor, the Committee, out of an abundance of caution, added
section 9 to S. 1237. Section 9 covers only instances where a depiction
of an ``identifiable minor'' is created, altered or modified to appear
that the minor is engaging in sexually explicit conduct. If a court
rules that section 4's coverage of a computer-generated depiction which
``appears to be'' of a minor engaging in sexually explicit conduct is
constitutionally impermissible, there is concern that section 4's
additional coverage of depictions of identifiable minors may not be
severable therefrom. Section 9 is clearly severable from section 4, and
its prohibition on computer-generated depictions of identifiable minors
engaging in sexually explicit conduct will survive a ruling striking
down section 4's ``appears to be'' language with respect to child
pornographic material.
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D. Pandering of material as child pornography
The definition of child pornography established under S.
1237 would classify as child pornography a visual depiction of
sexually explicit conduct which ``is advertised, promoted,
presented, described, or distributed in such a manner that
conveys the impression that the material is or contains a
visual depiction of a minor engaging in sexually explicit
conduct.'' Child sexual exploitation and child pornography
statutes such as S. 1237 are intended by Congress, as evidenced
by the plain meaning of the statutes read as a whole, to
prohibit and thus prevent the exploitation of minors for sexual
purposes. This provision prevents child pornographers and
pedophiles from exploiting prurient interests in child
sexuality and sexual activity through the production or
distribution of pornographic material which is intentionally
pandered as child pornography, and then evading prosecution
under the child pornography statute. The concept of
``pandering'' 9 is a long-recognized evidentiary rule,
which holds that evidence of pandering is relevant in
determining whether at-issue material is within the legitimate
reach of the child pornography statute. Ginzburg v. United
States, 383 U.S. 463, 467-8 (1966). In addition, evidence of a
defendant's deliberate pandering of material as child
pornography helps narrow the statute's application by
eliminating any claims of innocent or serious value or purposes
for the at-issue material.
---------------------------------------------------------------------------
\9\ The Supreme Court in Ginzburg v. United States, supra, at 467-
468, citing the concurring opinion of Chief Justice Warren in Roth v.
United States, 354 U.S. 476, defined pandering as ``the business of
purveying textual matter openly advertised to appeal to the erotic
interest of their customers.''
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E. Penalties for sexual exploitation of children to produce child
pornography
Section 5 of S. 1237 reflects an amendment offered by
Senator Grassley, amending 18 U.S.C. 2251 to increase the
penalties under Federal law for the production of child
pornography using actual minors. Currently, Federal penalties
for such an offense are lower than many state penalties for
similar conduct. Specifically, 41 States (82 percent) have
penalties which are potentially greater than the existing
Federal penalty for the first offense. Seven States (14
percent) have first offense penalties roughly equal to the
Federal penalty. Only 4 percent (two States) have penalties
which are less harsh than Federal penalties. The purpose of
Senator Grassley's amendment is to toughen Federal penalties
for the sexual exploitation of children to produce child
pornography, in part to counteract the current practice among
some Federal prosecutors and investigators of bringing Federal
child pornography charges to State and local authorities.
Under section 5, an individual who violates section 2251
would be fined or imprisoned for not less than 10 years nor
more than 20 years, or both. A repeat offender with one prior
conviction would be fined and imprisoned for not less than 15
years nor more than 30 years; an individual with two or more
prior such convictions would be fined and imprisoned for not
less than 30 years nor more than life. With these new tougher
penalties, the Federal Government will be leading by example
and sending a clear message that child pornography is
unacceptable, as well as bringing Federal penalties for sexual
exploitation of children in line with the penalties for such
conduct established by most States.10
---------------------------------------------------------------------------
\10\ State-by-State breakdown of penalties for the production of
child pornography: Life Imprisonment: Alabama, Montana, Nevada; Up to
30 years: Tennessee; Up to 20 years: Connecticut, Delaware, Georgia,
Kentucky, Massachusetts, Michigan, Mississippi, Nebraska, Oklahoma,
Oregon; Up to 17 years: Arizona; Up to 15 years: Florida, Idaho,
Illinois, Missouri, Ohio, Utah; Up to 12 years: Colorado; Up to 10
years: Arkansas, District of Columbia, Iowa, Louisiana, Maine,
Maryland, New Jersey, Pennsylvania, Rhode Island, South Dakota, Texas,
Vermont, Virginia, West Virginia, Wisconsin; Less than 10 years:
Alaska, California, Hawaii, Indiana, Kansas, Minnesota, New Hampshire,
New Mexico, New York, North Carolina, North Dakota, South Carolina, and
Washington.
---------------------------------------------------------------------------
F. Amendment of the Privacy Protection Act
S. 1237 also addresses another problem which has arisen in
our new electronic environment, one which can impede or even
deter investigations into the production of or trafficking in
child pornography. The Privacy Protection Act (42 U.S.C.
2000aa) makes it unlawful for Federal, State or local law
enforcement authorities, in connection with the investigation
or prosecution of a criminal offense, to search for or seize
work product (defined as ``materials possessed by a person
reasonably believed to have a purpose to disseminate to the
public a newspaper, book, broadcast, or other similar form of
public communication'') or connected documentary materials. An
aggrieved person may bring a civil suit and recover damages not
only against the United States, a State or a government agency,
but also against individual State officers and employees. Law
enforcement officials have expressed concern regarding the
possibility of lawsuits being brought under this statute in
child pornography or child sexual exploitation cases; even the
mere threat of potentially costly lawsuits may have a chilling
effect on some U.S. attorneys and local officials, particularly
in smaller jurisdictions, thus deterring them from pursuing
these types of cases.
A more difficult problem increasing faced by law
enforcement officials is ``commingling.'' While the Act does
allow for the seizure of evidence where there is probable cause
to believe the person possessing such materials has committed
or is committing the criminal offense to which the materials
relate, it restricts searches for evidence of crime held by
innocent third parties engaged in first amendment-protected
activities. The problem is that people often store contraband--
and targets of criminal investigations store evidence--on a
computer which also contains material protected under the
Privacy Protection Act. In such situations, the legal search or
seizure of the computer for contraband or evidence results in
the incidental search or seizure of protected materials,
arguably violating the Act. This is a growing problem, due both
to the increasingly widespread use of computers by individuals,
organizations and companies, and the use of computers for
storage and distribution via the Internet of child pornographic
materials by pedophiles, child molesters, and pornographers.
The Privacy Protection Act currently contains an exemption
for searches and seizures in cases where the alleged offense
consists of the receipt, possession or communication of
information relating to the national defense, classified
information, or restricted data under the provisions of
specified statutes. Consistent with the existing statutory
framework, S. 1237, at section 7, addresses the problem of
commingling, and protects governments and law enforcement
officials seeking to protect children against criminal sexual
abuse and exploitation from the threat of civil lawsuits and
the awarding of damages, by extending the existing Privacy Act
exemptions to include searches and seizures in child
pornography, child sexual exploitation, and child selling
cases. This position is supported by the Department of Justice.
V. Regulatory Impact Statement
Pursuant to paragraph 11(b), rule XXVI of the Standing
Rules of the Senate, the Committee, after due consideration,
concludes that S. 1237 will not have direct regulatory impact.
VI. Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 9, 1996.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed S. 1237, the Child Pornography Prevention Act of 1996,
as ordered reported by the Senate Committee on the Judiciary on
July 25, 1996. CBO estimates that implementing S. 1237 would
result in no significant costs to the federal government.
Enacting the bill could affect direct spending and receipts, so
pay-as-you-go procedures would apply. However, we estimate that
any increases in direct spending and receipts would be less
than $500,000 annually.
S. 1237 would provide for new and enhanced penalties for
crimes relating to child pornography, including mandatory
minimum prison sentences and criminal fines. Therefore,
enacting the bill could increase governmental receipts through
greater collections of criminal fines, but we estimate that any
such increase would be less than $500,000 annually. Criminal
fines would be deposited in the Crime Victims Fund and would be
available for spending in the following year. Thus, direct
spending from the fund would match the increase in receipts
with a one-year lag.
Enacting S. 1237 would result in minor additional costs to
the federal government to accommodate more prisoners in federal
prisons. Based on information from the U.S. Sentencing
Commission, we expect very few federal cases to be affected.
Thus, enacting the bill would not have any significant impact
on discretionary spending.
S. 1237 contains no private-sector or intergovernmental
mandates as defined in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4) and would not impose costs on state, local,
or tribal governments.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
James T. Blum
(For June E. O'Neill, Director).
VII. ADDITIONAL VIEWS OF SENATOR GRASSLEY
The history of efforts to eliminate the scourge of child
pornography is replete with examples of child pornographers
finding ways around legislation intended to eliminate child
pornography. Osborne v. Ohio, 495 U.S. 103, 109-110 (1990).
When the Supreme Court first ruled that making or selling child
pornography was not protected by the first amendment (New York
v. Ferber, 458 U.S. 747 (1982)), Congress and many States
passed laws to prohibit these activities. Child pornographers
responded by going underground and forming clandestine networks
to produce and trade in child pornography. Clearly new
legislation was required to criminalize the simple possession
of child pornography so that law enforcement could reach into
the seamy underground of American society and catch child
pornographers. Fortunately, the Supreme Court recognized the
fluid nature of child pornography production and distribution.
Osborne, 495 U.S. at 110.
Additionally, commercial pornography distributors began
selling videotapes of young girls scantily-clad in bathing
suits and underwear. These pornography merchants found what
they believed was a loophole in Federal child pornography laws.
For a time, the Clinton administration agreed. Fortunately,
after Congress intervened, the Clinton administration changed
its position and the courts closed the loophole. United States
v. Knox, 32 F.3d 733 (3d Cir. 1994), cert. denied, 115 S. Ct.
897 (1995).
S. 1237 is simply a replay of this drama. Computer imaging
technology has given child pornographers a new way to create
``synthetic'' child pornography which is virtually
indistinguishable from ``traditional'' child pornography.
Moreover, there is evidence that pedophiles are aware of these
technological developments and are using computer technology to
transform images into child pornography. In California, for
instance, a pornographer posed as a social service worker and
photographed young girls in the nude and ``electronically
manipulat[ed] the photos on his home computer to switch faces
and body parts of little girls.'' Janet Gilmore, ``Man who
Posed As Investigator Convicted of Child Molestations,'' The
Daily Breeze, May 23, 1996.
As the Committee Report makes plain, when the Committee
considered this legislation, witnesses with considerable
experience in combating child pornography and treating sexual
pathologies testified that ``synthetic'' child pornography
which looks real to the naked eye will have the same effect
upon viewers as ``traditional'' child pornography. S. 1237
simply responds to this new reality, and I am confident that
courts will rise to the occasion and sustain this bill against
the inevitable court challenge.
The Supreme Court's precedents in this area establish two
reasons why child pornography is not protected by the first
amendment. First, when child pornography is created a child is
sexually abused in the process. Ferber, 458 U.S., at 756-58.
Since the Government can absolutely prohibit the sexual abuse
of a child, the Government may therefore prohibit recording
that sexual abuse on camera.
The second reason directly supports S. 1237: child
pornography poses an unreasonable risk of harm to other
children because pedophiles use child pornography to induce
children into illicit sexual activity. Osborne, 495 U.S., at
111 & n. 7. That is, child pornography harms children because
child pornography is intrinsically a part of the molestation
process. Thus, contrary to the assertions made by the opponents
of this legislation, the societal interest in preventing the
harm to a child depicted in child pornography is not the only
governmental interest that the Supreme Court has recognized in
justifying criminal prohibitions of the possession and
distribution of child pornographic materials. See David B.
Johnson, ``Comments: Why the Possession of Computer-Generated
Child Pornography Can Be Constitutionally-Prohibited,'' 4 Alb.
L.J. Sci. & Tech. 311 (1994).
Additionally, when the Committee considered this
legislation, Dr. Victor Cline, a noted expert in sexual
pathologies, testified that pedophiles crave sexually explicit
depictions of children. In other words, child pornography
reinforces deviant sexual impulses and can precipitate deviant,
illegal sexual behavior. Surely, ``synthetic'' child
pornography, which the viewer believes to be real, can
stimulate the same anti-social responses as ``traditional''
child pornography. Thus, in my view, the Government's interest
in protecting children from predatory child molesters requires
Congress to outlaw ``synthetic'' child pornography.
In conclusion, S. 1237 is a narrow, targeted response to a
growing child pornography problem. We know that child
pornography is used to entice children into sexual activity and
to lower their natural inhibitions and it is very likely that
there are more individuals like the child pornographer in
California who have learned to use computer technology to
create child pornography. There is every reason to believe that
computer-generated ``synthetic'' child pornography poses the
same risk to America's children that ``traditional'' child
pornography does. I have every confidence that those misguided
elements of our society which have defended child pornography
at every turn in the courts will lose again.
Chuck Grassley.
VIII. ADDITIONAL VIEWS OF SENATOR BIDEN
I share the goals of the majority of the Committee: to
close loopholes in our Federal child pornography laws caused by
advances in computer technology. Child pornography is a heinous
crime that preys on the most vulnerable and innocent in our
society. It is a devastating act, damaging a child's trust in
others and their own sense of self-respect and self-esteem.
Moreover, the harmful repercussions to child participants lasts
long after the pornography is made, because the pornographic
material provides a permanent record of the act, prolonging the
victimization as long as the material exists. Child pornography
has no redeeming value, and, because of the harm it causes to
the minors depicted, it deserves no first amendment protection.
For these reasons, I have worked with many of my colleagues to
strengthen Federal criminal laws prohibiting child pornography,
and I believe we should act quickly to address new forms of
child pornography as soon as they appear. Thus, I support this
legislation, which expands current Federal criminal law to
prohibit the use of computer ``morphing'' to create child
pornography. I write separately to explain my rationale in
offering an amendment, adopted by the Committee, which was
incorporated into the bill as section 9.
When the Congress acts to address a problem, it is
imperative that we act not only quickly, but also effectively.
Empty promises are meaningless and can even be
counterproductive. In this context, where we are operating in
an area close to the first amendment to the Constitution, we
must work to carefully draft our laws to meet relevant
constitutional standards. Only a constitutional law, which will
be upheld by the courts, offers any real protection to our
children. We will have less child pornography, and fewer child
victims, only if we pass a bill that will be enforced, and
enforced immediately, not one that is subject to lengthy
litigation and which could very well be struck down as
unconstitutional. Based on testimony and other evidence
presented to the Committee, I am concerned that the bill as
originally drafted would certainly be subject to challenges and
may not be upheld by the courts for the reasons discussed
below.
The Supreme Court first addressed the question of child
pornography in New York v. Ferber, 458 U.S. 747 (1982). In
Ferber the Court held that child pornography--even child
pornography that is not legally obscene--is not entitled to any
first amendment protection.1 The Court found a number of
compelling reasons to justify a total ban: child pornography
causes psychological and physical harm to children used as
subjects; it creates a permanent record of sexual abuse; it
fuels the child pornography trade; and its artistic and social
value is limited. Id. at 756-64. Recognizing that restrictions
on child pornography are content-based, the Court weighed the
competing interests carefully but found the interest of
protecting children from being involved in the production of
child pornography to be paramount. Id. at 763-64. Thus,
although the Court considered a number of factors in exempting
child pornography from first amendment protection, the focus of
the Supreme Court's reasoning has always been on the harm
making the pornography does to children--not on the effect such
material has on the viewer.
---------------------------------------------------------------------------
\1\ In fact, the Court found that the three-prong test for
obscenity involving adults established in Miller v. California, 413
U.S. 15 (1973) (to be found obscene material must appeal to prurient
interests; lack artistic, scientific, or other merit; and violate
community standards), does not apply to child pornography. Rather, all
child pornography--regardless of its value--could be banned so long as
the conduct prohibited was adequately limited and defined. Ferber, 458
U.S. at 764.
---------------------------------------------------------------------------
In fact, the Court explicitly recognized that, where there
is artistic or political value to the speech, substitutes for
minors may be used, and such material may not be outlawed. Id.
at 762-63. For example, a movie about child sexual abuse that
uses an adult who looks like a child to play the victim would
retain first amendment protection. Id. at 763. Indeed, the
Supreme Court has repeatedly held--in unmistakably clear
language--that non-obscene pornography depicting adults is
constitutionally protected, even where adults are used who look
like minors. See, e.g., Alexander v. United States, 113 S. Ct.
2766 (1993). Writing for the majority in Ferber, Justice White
stated unequivocally that non-obscene simulations of child
pornography that do not involve children in making the images
``retains first amendment protection.'' Id. at 764-65.
I am concerned that S.1237 is inconsistent with current law
in one respect. By criminalizing all visual depictions that
``appear to be'' child pornography--even if no child is ever
used or harmed in its production--section 4 prohibits the very
type of depictions that the Supreme Court has explicitly held
protected.
Prof. Frederick Schauer's testimony before the Committee is
particularly instructive in this regard. Professor Schauer, who
is the Frank Stanton Professor of the First Amendment at
Harvard University's Kennedy School of Government and a
visiting professor of law at Harvard Law School, was the
Commissioner of the Attorney General's Commission on
Pornography--commonly known as the Meese Commission--and was
the primary author of its report. Professor Schauer, as well as
at least 14 other constitutional scholars who wrote to the
committee, believe that the ``appears to be'' standard in the
definition of ``child pornography'' incorporated in section 4
is constitutionally suspect. As Professor Schauer noted, the
Ferber Court held that:
``We note that the distribution of description or
other depictions of sexual conduct, not otherwise
obscene, which do not involve live performances or
photographs or other visual depictions of live
performances, retains First Amendment protection.'' 458
U.S. at 764-65. Thus it is not that Ferber did not
address the possibility of simulations of non-
recognizable minors. It is that Ferber did address this
possibility, and explicitly held such simulations to be
constitutionally protected.''
Written testimony of Frederick Schauer, at 4.
Of course, the Supreme Court has the power to expand its
current child pornography exemptions in light of technological
developments. But Professor Schauer testified that even in
recent cases the Court has been unwilling to expand the scope
the Ferber exception. See, e.g., Jacobson v. United States, 503
U.S. 540 (1992) (invalidating a Federal child pornography
conviction and holding that even the compelling interest in
protecting children from sexual exploitation does not justify
modifications in otherwise applicable rules of criminal
procedure); United States v. X-Citement Video, 115 S. Ct. 464
(1994) (interpreting section 2252 of title 18 to require the
prosecution to prove the defendant knew the material was
produced with the use of a minor, in part because to find
otherwise would be constitutionally problematic). Therefore,
Professor Schauer concluded that ``the proposed expansion to
include drawings or computer-generated images of non-
recognizable children, which is keyed to no justification that
is recognized in existing law, is unconstitutional on the
existing state of the law.'' 2 Should Professor Schauer
and the other scholars be right, S. 1237 would be invalid and
provide zero protection to our children.
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\2\ Some States have statutes that, if read on their face, seem to
prohibit all material that ``appears'' to depict a minor. But each of
the State high courts that have interpreted their own States' statutes
have read into them a requirement that the prosecution show that a
minor was actually used in the production of the material (even where
it is characterized as a ``drawing''). See, e.g., Iowa v. Gilmour, 522
N.W.2d 595 (Iowa 1994); (conduct prohibited by the State statute is
that of enticing minors into sexually explicit conduct, not
distributing the material); Cinema I Video, Inc. v. Thornburg, 351
S.E.2d 305 (N.C. App. 1986) (use of live minor in drawings and
representations of sexually explicit conduct is an essential element of
the crime).
---------------------------------------------------------------------------
Even if the expansion of current law created by section 4
is ultimately upheld by the Supreme Court, litigation over the
question of its constitutionality will hinder enforcement of
the new law until that ultimate decision is issued. Enacting a
statute of questionable constitutionality is counterproductive
to the strict enforcement of laws against pedophiles and child
molesters. Resources that would otherwise be used in
prosecutions must be diverted to years of litigation on the
constitutionality of the statute as it works its way through
the lower courts. And during that time the statute's
enforcement might be completely blocked by injunctions or other
motions. In the meantime, the promise of protection is empty
and the public understandably becomes disillusioned by the
solutions offered by the Congress.
In contrast to the questions raised about section 4, there
is wide agreement that expanding current law to prohibit visual
depictions of sexually explicit conduct in which an
identifiable minor's likeness is recognizable meets current
constitutional requirements, even where the minor was not
actually engaged in sexual conduct. This would be the case, for
example, when an innocent image of a minor is ``morphed'' or
collaged to make it appear that he was engaged in sexual
conduct, either by putting his face on the picture of someone
else's body engaged in that type of conduct or by otherwise
manipulating the image. These kinds of images cause significant
harm to real children because, although the minor depicted may
not have actually engaged in sexual conduct, the image creates
an apparent record of sexual abuse and thus causes the same
psychological harm to children (in fact, using a minor's
likeness in such a depiction could reasonably be considered a
form of abuse). This is one of the concerns that led the Ferber
court to find child pornography involving actual children in
sexual conduct exempt from first amendment protection. See,
e.g., testimony of Bruce Taylor at 14, n.4. ``Morphed'' images
may also be used to blackmail the child depicted into sexual
activity by intimidating him or by threatening to show the
pictures to others if he does not cooperate. Attorney General's
Commission on Pornography, Final Report, July 1986, at 650.
Child pornography has a life of its own and may be distributed
throughout the world for years after it is initially created,
thus victimizing a child involved in this type of ``morphed''
image again and again. Id. at 650-51. For these reasons, this
prohibition is consistent with the existing constitutional
standard and its underlying rationale of protecting the well-
being of actual children.
Because of the significant constitutional concerns that
section 4 may be struck down--or at the very least litigated
for several years--and because of the importance of moving
quickly to ensure prohibition of morphing and other computer-
generated pornographic images using identifiable minors, the
Committee adopted my amendment adding section 9 to the bill.
The purpose of section 9 is to prohibit this specific type of
child pornography--visual depictions that have been created,
adapted, or modified to appear that an identifiable minor was
engaged in sexually explicit conduct. Section 9 does not
require the prosecution to prove the actual identity of the
minor in the picture, only that the minor is depicted clearly
enough to be identified as an actual person who is a minor. The
prosecution could meet this burden either through factual
evidence or through expert testimony, similar to what
prosecutors use now to establish the elements of the current
statute to show that the depiction of a face is of an actual
person and not different features from different people; and to
show that the bone structure or other facial features are
indeed of a minor.
In all other respects, section 9 mirrors section 4,
including the penalty provisions and the mandatory minimum
sentences for certain repeat offenders. I do not support the
creation of new mandatory minimum sentences. A number of us on
the Committee worked to create the United States Sentencing
Commission so that experts would work out the complicated and
time-consuming issues involved in setting specific penalties
within the larger sentencing scheme. Creating mandatory minimum
sentences--rather than providing instructions to the Commission
regarding the severity of the criminal activity and allowing
the Commission to set specific guidelines--strips the
Commission of the very role it was created to serve. In my
view, this is counterproductive. Nonetheless, because section 9
is a single section in a larger bill, it was drafted to be
consistent with the rest of the provisions in that bill.
I want to briefly address two other issues. First, the
Supreme Court has found that the scienter requirement in the
current Federal child pornography statute applies to each
element of the offense. United States v. X-Citement Video,
Inc., 115 S. Ct. 464 (1994). In X-Citement, Chief Justice
Rehnquist, writing for the majority, interpreted the language
of section 2252 of title 18 to require that the prosecution
prove that the defendant know both the sexually explicit nature
of the material and that the age of the performers was below
minority. Id. at 472. The Supreme Court found that ``a [child
pornography] statute completely bereft of a scienter
requirement as to the age of the performers would raise serious
constitutional doubts.'' In order to uphold the
constitutionality of the Federal statute in that case, the
court interpreted the law--which it found to be unclear on its
face--to in fact require that the defendant know that the
participants were minors. Presumably a similar standard would
apply to the provisions of S. 1237. Because scienter of each
element must be established by the prosecution, the affirmative
defense set forth in section 4 should not be interpreted to
require the defendant to disprove any element of the offense
that the prosecution is required to prove beyond a reasonable
doubt in its case-in-chief. Shifting the burden of proof on any
of those elements to the defendant would clearly be
impermissible under the bill of rights.
Finally, section 9 is structured as a separate section of
title 18 of the United States Code--section 2252B--to make
absolutely clear that it is entirely independent and severable
from the definitions in section 3. Although there is a
severability provision in section 8 of the bill, the exact
scope of severability is often a difficult question for courts
to resolve. This is true even in the case of statutes with
clear severability provisions.3 Moreover, clarity is
especially important where, as here, experts in the field
anticipate there will be extensive litigation which might block
enforcement of one or more of the sections. It will be cold
comfort that one sentence is ultimately severable from another
if enforcement of both is enjoined for years pending that
decision and countless children are emotionally or physically
harmed in the meantime.
---------------------------------------------------------------------------
\3\ See, e.g., Leavitt v. Jane L.,__U.S.__, 64 U.S.L.W. 3834 (1996)
(reversing a 10th Circuit Court of Appeals finding that a provision in
a Utah statute was not severable even where statute had explicit
severability clause); United States v. National Treasury Employees
Union, __U.S. __, 115 S. Ct. 1003 (1995) (refusing to limit an
overbroad honoraria ban on Federal employees to certain types of
speech, because the Court could not be certain its limitation would
have been the severance adopted by Congress).
---------------------------------------------------------------------------
Quick and effective enforcement is especially important in
this case, because the welfare of our children is at stake.
Creating a separate section will ensure that any constitutional
challenge to the ``appears to be a minor'' provision will not
delay enforcement against child pornography involving actual
minors created by new technologies and not covered under
current law. At the same time, it does not diminish in any way
the protections afforded by section 4 should that section
survive a constitutional challenge. Our purpose in enacting
this bill must be to focus on how best to protect our children
from an emerging threat to their personal safety and to assure
the piece of mind of their parents.
Joe R. Biden Jr.
IX. ADDITIONAL VIEWS OF SENATOR KENNEDY
I am in general agreement with the concerns expressed in
the minority views of Senators Simon and Feingold. Despite the
gravity of these concerns, I voted to report S. 1237 favorably
to the full Senate because the bill seeks to address a serious
problem and I wanted the legislative process to move forward.
But it is my hope and expectation that the bill's
constitutional and sentencing-related flaws will be remedied
prior to consideration of the bill by the full Senate.
With respect to the constitutional issues, I am pleased
that the Committee adopted the Biden amendment to provide focus
on conduct involving the display of actual children. There is
substantial reason to believe that the underlying bill is
unconstitutional as applied to the depiction of adults, or as
applied to computer-generated images of fictitious children.
With respect to the sentencing issues, I wish to be fully
associated with the minority views of Senator Simon. As the
author of the Sentencing Reform Act of 1984, it is deeply
distressing for me to see the Judiciary Committee turn its back
on the sentencing system it fought so hard to create.
Mandatory minimum sentencing statutes are outmoded,
unnecessary and counterproductive. Sentencing guidelines
provide tough, certain punishment while maintaining an
appropriate and necessary degree of judicial discretion.
Mandatory minimums don't eliminate sentencing discretion--they
merely serve to take the discretion away from older, wiser,
Senate-confirmed Article III judges and place it in the hands
of young assistant U.S. attorneys engaged in the ``often
competitive enterprise'' of fighting crime, to paraphrase
Justice Cardozo. When judges depart from the guidelines they
are subject to appellate review; when prosecutors dismiss the
count of an indictment that carries a mandatory minimum
sentence, their decision is unreviewable and undertaken without
the benefit of public scrutiny.
If the members of the Senate Judiciary Committee will not
remain true to the principles of sentencing reform they first
articulated, who will?
Ted Kennedy.
X. MINORITY VIEWS OF SENATOR SIMON
I share the concerns of all the members of this Committee
about child pornography. Children must be protected from the
bodily and psychological harm associated with child
pornography. Any effort to exploit and sexually abuse children
is reprehensible, and the law should deal swiftly and surely
with these offenders.
Nonetheless, I voted to oppose S. 1237 because of two major
concerns. First, as eloquently stated by Senator Feingold, the
bill fails to pass constitutional muster. I join in his views.
Second, I oppose S. 1237 because of the mandatory minimum
provisions.
Members of the Judiciary Committee should be well aware of
the history of Federal sentencing reform. For over 10 years, we
fought the House of Representatives to pass the Sentencing
Reform Act of 1984. That Act abolished parole, created truth-
in-sentencing at the Federal level, and established the United
States Sentencing Commission to write binding sentencing
guidelines for the Federal courts.
Both mandatories and guidelines limit the discretion of
judges. However, guidelines do so in a more sophisticated and
sensible way. They take account of all relevant offense and
offender factors. They permit judges to depart upward or
downward from the range, subject to appellate review. This
system makes sense for experienced Federal judges. As Plato
wrote, ``We should exhibit to the judges * * * the outline and
form of the punishment to be inflicted. * * * But when a state
has good courts, and the judges are well trained and
scrupulously tested, the determination of the penalties or
punishments which shall be inflicted on the guilty may fairly
and with advantage be left to them.''
By undermining the coherent system of penalties established
by the Commission, mandatory minimums are unnecessary and
counterproductive. Studies of State and Federal courts have
shown that mandatory minimums are applied unevenly and create
anomalies in sentencing law. Judges and lawyers in all States
have reported that the system is becoming a mess because of
continued congressional reliance on mandatory minimums. Chief
Justice Rehnquist has noted that mandatory minimums ``frustrate
the careful calibration of sentences, from one end of the
spectrum to the other, that the guidelines were intended to
accomplish.'' The parallel and inconsistent sentencing systems
in this country are having disastrous effects on the
administration of justice.
For some time, the Judiciary Committee had made progress
toward recognizing that mandatories are not the right way to
set sentences. Senators Kennedy, Simon, Thurmond, Simpson, and
Leahy proposed the safety valve approach in the 1994 crime
bill. During the markup of the immigration bill, the Committee
accepted a Kennedy-Simon amendment to strike mandatory
penalties and replace them with directions to the Commission.
Chairman Hatch has even written a law review article
questioning the wisdom of mandatory sentences.
Unfortunately, this bill represents a step back from that
progress. The original version of the bill included five
mandatory minimum penalties. The Judiciary Committee adopted
one amendment that included two additional mandatory minimums
and increased the punishment for a mandatory minimum in the
original version of the bill.
The Judiciary Committee also adopted another amendment that
included a ``two-strikes-and-you're-out'' life sentence
provision. The provision imposes a mandatory life sentence on
anyone convicted for the second time for the sexual abuse of
children, where the first conviction is for a Federal or State
offense. The provision permits the life imprisonment of a 19-
year-old who has been twice convicted of having unconsenting
sex with a 15-year-old.
Some will say ``child pornography is a serious crime.'' I
agree completely. But so are all the crimes we deal with--from
drug and gun-related offenses to the most heinous acts of
violence. In all of these areas, we should recognize that the
move from mandatory minimums to the guideline system is not a
matter of being ``weak'' on child pornography or any other
horrible crime. It is just a smarter way to make sentencing
policy.
The type of defendants prosecuted under child pornography
laws varies widely--some turn out to be professionals, and
others are deviants suffering from mental illness. Two years in
Federal prison may be too short a sentence for the former type
of defendant, but too long a sentence for the latter type. The
lack of precision highlights what is wrong with mandatories,
and precisely why this Committee fought for 10 years to create
a Sentencing Commission--to sort out the bad offenders from the
worse offenders in a sophisticated, rational, empirical way.
During the Judiciary Committee's consideration of this
legislation, I supported an amendment offered by Senator
Kennedy to strike the mandatory minimum provisions newly
created by this bill and replace them with a directive to the
Sentencing Commission to provide a ``significant enhancement''
under the guidelines. The Commission is ready, willing and able
to respond to congressional direction.
As described in a report sent to Congress last month, the
Sentencing Commission has already increased child pornography
guidelines dramatically in recent years. The report describes
additional amendments submitted to Congress that take effect
automatically on November 1, 1996, without any congressional
action. These changes include increases for sentences for all
pornography guidelines by approximately 25 percent, increases
for sentences for the promotion of prostitution and prohibited
sexual conduct by one-third, a further 25-percent increase for
the use of computers in child pornography offenses, and a 25-
percent increase for pornography sentences if computers were
used to solicit participation in sexually explicit conduct by
or with a minor for the production of child pornography.
If the sentencing guidelines system is to succeed, Congress
must stop enacting new mandatory minimum sentencing laws.
Paul Simon.
XI. MINORITY VIEWS OF SENATOR FEINGOLD
I join my colleagues in expressing grave concern over the
need to protect those children forced to participate in acts of
child pornography. We must do all within our power to rid our
society of those individuals who prey upon our young people for
gratification and profit. Of this fact there can be no doubt.
However, the failure of S. 1237 to abide by Supreme Court
precedent in this area undermines the goal of protecting
children and risks that this legislation will likely be struck
down as unconstitutional. I fully support efforts to
criminalize the creation and distribution of material deemed to
be child pornography. For such efforts to be of any value,
however, they must remain within the permissible bounds of our
Constitution. Unfortunately, as currently drafted, the
underlying legislation, in my opinion, fails to meet this
standard and therefore I am compelled to oppose its adoption.
It is important to note that this legislation deals with
material which is not deemed to be obscene. If the material in
question were of such a nature as to be obscene, it would be
well within the constitutional power of the State to regulate
it fully. Miller v. California, 413 U.S. 15 (1973). When
sexually oriented material fails to satisfy the Miller
standard, it may not be regulated based solely upon the
indecency, offensiveness or harmful nature of the material.
However, this generally applicable rule gives way, in certain
prescribed circumstances, to an exception--an exception for the
regulation of child pornography. Certain kinds of child
pornography, in essence, constitute a subset of nonobscene
expression which the Supreme Court has held may in fact be
prohibited.
However, this prohibition is limited in scope by the
Supreme Court holding in New York v. Ferber, 458 U.S. 747
(1982). In Ferber, the Court upheld a New York statute which
criminalized the knowing promotion of sexual performances by
children under the age of 16 although the materials depicting
such performances were not necessarily obscene. The New York
law focused upon the protection of the juveniles involved, an
important distinction from the regulation of obscenity which is
aimed at protecting those who view the material in question.
The purpose of the statute in Ferber was, ``not to protect the
consumers who watch a child's sexual performance; it is to
protect the young children from being used and abused in a
sexual performance.'' (Constitutional Law, Nowak and Rotunda,
fifth edition, at 1207). A primary justification utilized by
the Court in upholding the New York regulation was the need to
prevent the harm suffered by the child when a permanent record
of his or her participation in the conduct is created and
circulated.
However, S. 1237 goes beyond the permissible bounds
established in Ferber and extends the definition of child
pornography to drawings or images which ``appear'' to be minors
or visual depictions which ``convey'' the impression of a minor
engaging in sexually explicit conduct, whether an actual minor
is involved or not. According to Harvard Law School Professor
and former Commissioner on the Attorney General's Commission on
Pornography, Frederick Schauer, who testified before the
Judiciary Committee, the definitional expansion sought by S.
1237 is not supported by present case law;
It is thus clear that the exclusive focus of Ferber
and the constitutional permissibility of regulating the
category of child pornography as a separate class is
not on the effects of the images on others, even though
those effects plainly exist, but instead on the harm to
the children actually used in the production of the
materials. Nothing in Ferber suggests that a
justification other than the protection of the actual
children used in the actual production of child
pornography will be constitutionally permissible to
warrant the criminalization of non-obscene material.
The language of S. 1237 would allow the government to regulate
even those materials which in fact do not involve a
recognizable minor. This is a clear departure from precedent
and is a point addressed directly by the Ferber Court. Justice
White, writing for the Court, held that while government is
given ``greater leeway'' in regulating child pornography,
materials or depictions of sexual conduct, ``which do not
involve live performance or photographic or other visual
reproduction of live performances, retains First Amendment
protection.'' 458 U.S. at 764-65, [emphasis added]. In the
words of Professor Schauer, ``* * * it is not that Ferber did
not address the possibility of simulations of non-recognizable
minors. It is that Ferber did address this possibility, and
explicitly held such simulations to be constitutionally
protected.'' S. 1237, in essence, asks the Supreme Court to
adopt a definition of child pornography for materials which do
not involve children--materials previously held to be protected
by the Constitution.
In order for S. 1237 to be upheld, the Supreme Court would
have to depart from its unanimous holding in Ferber and allow
the prohibition of materials which do not involve minors, a
departure the very text of Ferber seems to deem unlikely. While
no one can predict with certainty how the Supreme Court will
rule upon the language of S. 1237, there is no evidence that
the dramatic expansion in the scope of prescribable expression
sought by this legislation will be sustained. The Supreme Court
has repeatedly held, in a number of different areas, that
expression may not be regulated solely for its effect upon
others. In the area of child pornography, regulation has been
sustained in order to protect minors involved in the creation
of these materials.
While I agree with my colleagues that we must be vigilant
in trying to protect young people from those individuals who
would prey upon them, we must do so in a manner consistent with
the United States Constitution. The passage of laws directed at
this type of behavior may provide short term satisfaction, but
the long term consequences are undeniable, time consuming and
costly. As Professor Schauer noted;
* * * enacting laws that are unconstitutional on the
existing state of law, and which are extremely unlikely
to produce a change in existing constitutional law, is
hardly cost-free. Time is expended during which court
challenges may put more of existing child pornography
law than is intended into constitutional limbo, and
resources are expended in litigating constitutional
challenges that might be better spent in prosecuting
child pornographers.
This legislation marks the second occasion that this Congress
has embarked upon an unconstitutional course in seeking to
address activity which is being conducted via modern
technology. Unfortunately, just as the Communications Decency
Act sought to alter our constitutional framework, S. 1237
departs from precedent as well. There can be no doubt that the
advent of emerging computer technology poses challenges to our
society on many fronts, some challenges are positive and some
are not. However, we should not abandon the Constitution in
seeking to resolve those challenges. Rather than devoting
resources to litigating the fate of a seemingly
unconstitutional bill, we should devote those resources to
adapting constitutionally acceptable child pornography laws to
emerging technologies. The passage of legislation which will
ultimately be struck down by the Supreme Court will provide no
safety for the very children it seeks to protect. I fear this
will be the result of S. 1237.
In conclusion, I share the concern of this bill's
proponents in preventing the exploitation of children through
child pornography. I have supported such measures in the past
and will continue to do so in the future. We have an
affirmative obligation to do all we can to end this type of
conduct. However, we also have an obligation to ensure that our
efforts comport, at all times, with the Constitution of the
United States. As S. 1237 fails to abide by either of these
standards, I must respectfully oppose its adoption.
Russ Feingold.
XII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the changes in existing law made
by the bill as reported by the Committee, are shown as follows
(existing law proposed to be omitted is enclosed in bold
brackets, new matter is printed in italic, and existing law
with no changes is printed in roman):
UNITED STATES CODE
* * * * * * *
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN
Sec.
2251. Sexual exploitation of children.
2251A. Selling or buying of children.
2252. Certain activities relating to material involving the sexual
exploitation of minors.
2252A. Certain activities relating to material constituting or
containing child pornography.
2252B. Certain activities relating to material depicting the sexual
exploitation of minors.
* * * * * * *
Sec. 2241. Aggravated sexual abuse
(a) By Force or Threat.--Whoever, in the special maritime
and territorial jurisdiction of the United States or in a
Federal prison, knowingly causes another person to engage in a
sexual act--
* * * * * * *
(c) With Children.--Whoever, crosses a State line with
intent to engage in a sexual act with a person who has not
attained the age of 12 years, or in the special maritime and
territorial jurisdiction of the United States or in a Federal
prison, knowingly engages in a sexual act with another person
who has not attained the age of 12 years, or attempts to do so,
shall be fined under this title, imprisoned for any term of
years, or life, or both. If the defendant has previously been
convicted of another Federal offense under this subsection or
under section 2243(a), or of a State offense that would have
been an offense under either such provision had the offense
occurred in a Federal prison, unless the death penalty is
imposed, the defendant shall be sentenced to life in prison.
* * * * * * *
Sec. 2243. Sexual abuse of a minor or ward
(a) Of a Minor.--Whoever, crosses a State line with intent
to engage in a sexual act with a person who, or in the special
maritime and territorial jurisdiction of the United States or
in a Federal prison, knowingly engages in a sexual act with
another person who--
(1) has attained the age of 12 years but has not
attained the age of 16 years; and
(2) is at least four years younger then the person so
engaging;
or attempts to do so, shall be fined under this title,
imprisoned not more than 15 years, or both. If the defendant
has previously been convicted of another Federal offense under
this subsection or under section 2241(c), or of a State offense
that would have been an offense under either such provision had
the offense occurred in a Federal prison, unless the death
penalty is imposed, the defendant shall be sentenced to life in
prison.
* * * * * * *
Sec. 2251. Sexual exploitation of children
(a) * * *
* * * * * * *
(d) Any individual who violates, or attempts or conspires
to violate, this section shall be fined under this title[,] or
imprisoned [not more than 10 years, or] not less than 10 years
not more than 20 years, and both, but if such [individual]
person has [a] one prior conviction under this chapter or
chapter 109A, or under the laws of any State relating to the
sexual exploitation of children, such [individual] person shall
be fined under this title[,] and imprisoned for not less than
[five] 15 years nor more than [15] 30 years, [or both.] but if
such person has 2 or more prior convictions under this chapter
of chapter 109A, or under the laws of any State relating to the
sexual exploitation of children, such person shall be fined
under this title and imprisoned not less than 30 years nor more
than life. Any organization [which] that violates, or attempts
or conspires to violate, this section shall be fined under this
title. Whoever, in the course of an offense under this section,
engages in conduct that results in the death of a person, shall
be punished by death or imprisoned for any term of years or for
life.
Sec. 2252. Certain activities relating to material involving the sexual
exploitation of minors
(a) Any person who--
(1) * * *
* * * * * * *
(4) either--
(A) in the special maritime and territorial
jurisdiction of the United States, or on any
land or building owned by, leased to, or
otherwise used by or under the control of the
Government of the United States, or in the
Indian country as defined in section 1151 of
this title, knowingly possesses [3 or more
books, magazines, periodicals, films, video
tapes, or other matter which contain any visual
depiction] any book, magazine, periodical,
film, video tape, or other material which
contains 3 or more visual depictions; or
(B) knowingly possesses [3 or more books,
magazines, periodicals, films, video tapes, or
other matter which contain any visual
depiction] any book, magazine, periodical,
film, video tape, or other material which
contains 3 or more visual depictions; or that
has been mailed, or has been shipped or
transported in interstate or foreign commerce,
or which was produced using materials which
have been mailed or so shipped or transported,
by any means including by computer, if--
(I) the producing of such visual
depiction involves the use of a minor
engaging in sexually explicit conduct;
and
(ii) such visual depiction is
of such conduct; shall be
punished as provided in
subsection (b) of this section.
[(b)(1) Whoever violates, or attempts or conspires to
violate, paragraphs (1), (2), or (3) of subsection (a) shall be
fined under this title or imprisoned not more than ten years,
or both, but, if such person has a prior conviction under this
chapter or chapter 109A, such person shall be fined under this
title and imprisoned for not less than five years nor more than
fifteen years.
[(2) Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this title
or imprisoned not more than 5 years, or both.]
(b)(1) Whoever violates, or attempts or conspires to
violate, paragraphs (1), (2), or (3) of subsection (a) shall be
fined under this title or imprisoned not more than 15 years, or
both, but, if such person has a prior conviction under this
chapter or chapter 109A, or under the laws of any State
relating to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, such person shall be fined
under this title and imprisoned for not less than 5 years nor
more than 30 years.
(2) Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this title
or imprisoned not more than 5 years, or both, but, if such
person has a prior conviction under this chapter or chapter
109A, or under the laws of any State relating to the possession
of child pornography, such person shall be fined under this
title and imprisoned for not less than 2 years nor more than 10
years.
Sec. 2252A. Certain activities relating to material constituting or
containing child pornography
(a) Any person who--
(1) knowingly mails, or transports or ships in
interstate or foreign commerce by any means, including
by computer, any child pornography;
(2) knowingly receives or distributes--
(A) any child pornography that has been
mailed, or shipped or transported in interstate
or foreign commerce by any means, including by
computer; or
(B) any material that contains child
pornography that has been mailed, or shipped or
transported in interstate or foreign commerce
by any means, including by computer;
(3) knowingly reproduces any child pornography for
distribution through the mails, or in interstate or
foreign commerce by any means, including by computer;
(4) either--
(A) in the special maritime and territorial
jurisdiction of the United States, or on any
land or building owned by, leased to, or
otherwise used by or under the control of the
United States Government, or in the Indian
country (as defined in section 1151), knowingly
sells or possesses with the intent to sell any
child pornography; or
(B) knowingly sells or possesses with the
intent to sell any child pornography that has
been mailed, or shipped or transported in
interstate or foreign commerce by any means,
including by computer, or that was produced
using materials that have been mailed, or
shipped or transported in interstate or foreign
commerce by any means, including by computer;
or
(5) either--
(A) in the special maritime and territorial
jurisdiction of the United States, or on any
land or building owned by, leased to, or
otherwise used by or under the control of the
United States Government, or in the Indian
country (as defined in section 1151), knowingly
possesses any book, magazine, periodical, film,
videotape, computer disk, or any other material
that contains 3 or more images of child
pornography; or
(B) knowingly possesses any book, magazine,
periodical, film, videotape, computer disk, or
any other material that contains 3 or more
images of child pornography that has been
mailed, or shipped or transported in interstate
or foreign commerce by any means, including by
computer, or that was produced using materials
that have been mailed, or shipped or
transported in interstate or foreign commerce
by any means, including by computer,
shall be punished as provided in subsection (b).
(b)(1) Whoever violates, or attempts or conspires to
violate, paragraphs (1), (2), (3), or (4) of subsection (a)
shall be fined under this title or imprisoned not more than 15
years, or both, but, if such person has a prior conviction
under this chapter or chapter 109A, or under the laws of any
State relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward, or the
production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, such person
shall be fined under this title and imprisoned for not less
than 5 years nor more than 30 years.
(2) Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or imprisoned
not more than 5 years, or both, but, if such person has a prior
conviction under this chapter or chapter 109A, or under the
laws of any State relating to the possession of child
pornography, such person shall be fined under this title and
imprisoned for not less than 2 years nor more than 10 years.
(c) It shall be an affirmative defense to a charge of
violating paragraphs (1), (2), (3), or (4) of subsection (a)
that--
(1) the alleged child pornography was produced using
an actual person or persons engaging in sexually
explicit conduct;
(2) each such person was an adult at the time the
material was produced; and
(3) the defendant did not advertise, promote,
present, describe, or distribute the material in such a
manner as to convey the impression that it is or
contains a visual depiction of a minor engaging in
sexually explicit conduct.
Sec. 2252B Certain activities relating to material depicting the sexual
exploitation of minors
(a) Any person who--
(1) knowingly mails, or transports or ships in
interstate or foreign commerce by any means, including
by computer, any visual depiction, if such visual
depiction has been created, adapted, or modified to
appear that an identifiable minor is engaged in
sexually explicit conduct;
(2) knowingly receives or distributes any visual
depiction or any material that contains a visual
depiction that has been mailed, or shipped or
transported in interstate or foreign commerce by any
means, including by computer, if such visual depiction
has been created, adapted, or modified to appear that
an identifiable minor is engaged in sexually explicit
conduct;
(3) knowingly reproduces any visual depiction for
distribution through the mails, or in interstate or
foreign commerce by any means, including by computer,
if such visual depiction has been created, adapted, or
modified to appear that an identifiable minor is
engaged in sexually explicit conduct;
(4) either--
(A) in the special maritime and territorial
jurisdiction of the United States, or on any
land or building owned by, leased to, or
otherwise used by or under the control of the
United States Government, or in the Indian
country (as defined in section 1151), knowingly
sells or possesses with the intent to sell any
visual depiction; or
(B) knowingly sells or possesses with the
intent to sell any visual depiction that has
been mailed, or shipped or transported in
interstate or foreign commerce by any means,
including computer, or that was produced using
materials that have been mailed, or shipped or
transported in interstate commerce by any
means, including by computer;
if such visual depiction has been created, adapted, or modified
to appear that an identifiable minor is engaged in sexually
explicit conduct; or
(5) either--
(A) in the special maritime and territorial
jurisdiction of the United States, or on any
land or building owned by, leased to, or
otherwise used by or under the control of the
United States Government, or in the Indian
country (as defined in section 1151), knowingly
possesses any book, magazine, periodical, film,
videotape, computer disk, or any other material
that contains 3 or more visual depictions; or
(B) knowingly possesses any book, magazine,
periodical, film, videotape, computer disk, or
any other material that contains 3 or more
visual depictions that has been mailed, or
shipped or transported in interstate or foreign
commerce by any means, including by computer;
if such visual depiction has been created, adapted, or
modified to appear that an identifiable minor is
engaged in sexually explicit conduct;
shall be punished as provided in subsection (b).
(b)(1) Whoever violates, or attempts or conspires to
violate, paragraphs (1), (2), (3), or (4) of subsection (a)
shall be fined under this title or imprisoned not more than 15
years, or both, but, if such person has a prior conviction
under this chapter or chapter 109A, or under the laws of any
State relating to the production, possession, receipt, mailing,
sale, distribution, shipment, or transportation of a visual
depiction that would be prohibited under this chapter if it had
occurred within the special maritime and territorial
jurisdiction of the United States, such person shall be fined
under this title and imprisoned for not less than 5 years nor
more than 30 years.
(2) Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or imprisoned
not more than 5 years, or both, but, if such person has a prior
conviction under this chapter or chapter 109A, or under the
laws of any State relating to the production, possession,
receipt, mailing, sale, distribution, shipment, or
transportation of a visual depiction that would be prohibited
under this chapter if it had occurred within the special
maritime and territorial jurisdiction of the United States,
such person shall be fined under this title and imprisoned for
not less than 2 years nor more than 10 years.
* * * * * * *
Sec. 2256. Definitions for chapter
For the purposes of this chapter, the term--
(1) ``minor'' means any person under the age of
eighteen years;
* * * * * * *
(5) ``visual depiction'' includes undeveloped film and
video tape, and data stored on computer disk or by electronic
means which is capable of conversion into a visual image;
(6) ``computer'' has the meaning given to that term in
section 1030 of this title; [and]
(7) ``custody or control'' includes temporary supervision
over or responsibility for a minor whether legally or illegally
obtained[.]; and
(8) ``child pornography'' means any visual depiction,
including any photograph, film, video, picture, or computer or
computer-generated image or picture, whether made or produced
by electronic, mechanical, or other means, of sexually explicit
conduct, where--
(A) the production of such visual depiction involves
the use of a minor engaging in sexually explicit
conduct;
(B) such visual depiction is, or appears to be, of a
minor engaging in sexually explicit conduct; or
(C) such visual depiction is advertised, promoted,
presented, described, or distributed in such a manner
that conveys the impression that the material is or
contains a visual depiction of a minor engaging in
sexually explicit conduct; and
(9) ``identifiable minor''--
(A) means a person who--
(i) was a minor at the time the visual
depiction was created or at the time the
person's image was captured on the visual
medium used in creating, modifying, or adapting
such visual depiction; and
(ii) is recognizable in the visual depiction
as an actual person by the person's likeness or
other distinguishing physical characteristic,
such as a unique birthmark or other
recognizable feature; and
(B) shall not be construed to require proof
of the actual identity of the minor.
* * * * * * *
TITLE 42--THEN THE PUBLIC HEALTH AND WELFARE
* * * * * * *
Sec. 2000aa. Searches and seizures by government officers and employees
in connection with investigation or prosecution of
criminal offenses
(a) Work product materials--
* * * * * * *
(1) there is probable cause to believe that the
person possessing such materials has committed or is
committing the criminal offense to which the materials
relate: Provided, however, That a government officer or
employee may not search for or seize such materials
under the provisions of this paragraph if the offense
to which the materials relate consists of the receipt,
possession, communication, or withholding of such
materials or the information contained therein (but
such a search or seizure may be conducted under the
provisions of this paragraph if the offense consists of
the receipt, possession, or communication of
information relating to the national defense,
classified information, or restricted data under the
provisions of section 793, 794, 797, or 798 of Title
18, or section 2274, 2275, or 2277 of this title, or
section 783 of Title 50, or if the offense involves the
production, possession, receipt, mailing, sale,
distribution, shipment or transportation of child
pornography, the sexual exploitation of children, or
the sale or purchase of children, under section 2251,
2251A, 2252, 2252A or 2252B of title 18, United States
Code); or
(b) * * *
(1) there is probable cause to believe that the
person possessing such materials has committed or is
committing the criminal offense to which the materials
relate: Provided, however, That a government officer or
employee may not search for or seize such materials
under the provisions of this paragraph if the offense
to which the materials relate consists of the receipt,
possession, communication, or withholding of such
materials or the information contained therein (but
such a search or seizure may be conducted under the
provisions of this paragraph if the offense consists of
the receipt, possession, or communication of
information relating to the national defense,
classified information, or restricted data under the
provisions of section 793, 794, 797, or 798 of Title
18, or section 2274, 2275, or 2277 of this title, or
section 783 of Title 50, or if the offense involves the
production, possession, receipt, mailing, sale,
distribution, shipment or transportation of child
pornography, the sexual exploitation of children, or
the sale or purchase of children, under section 2251,
2251A, 2252, 2252A or 2252B of title 18, United States
Code); or