On January 30, the Senate Judiciary Committee approved, by voice vote, legislation (S. 151) that would ban computer-generated child pornography. A similar bill (S. 2520) was passed by the Senate last November during the 107th Congress (see The Source, 11/15/02).
Sponsored by Sens. Orrin Hatch (R-UT) and Patrick Leahy (D-VT), the bill would rewrite the 1996 Child Pornography and Prevention Act (CPPA) (P.L. 104-208), portions of which were invalidated by the U.S. Supreme Court for violating the First Amendment.
In a 6-3 decision last April, the Court ruled that the CPPA expanded the prohibition on child pornography to include not only pornographic images using real children, but also any computer-generated images that “appear to be” of a minor engaging in sexual activities. The Court said that the 1996 law, aimed at protecting minors from child molesters, was overly broad and unconstitutional because it could ensnare legitimate works of art.
In response to the Court’s decision, the Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act (S. 151) would narrow the definition of virtual child pornography by requiring consideration of the artistic, literary, political, or scientific value of the work as a whole.
The measure would create a new felony for pandering or soliciting material, virtual or real, that conveys the impression that a child is engaging in a sexual activity. This provision would require the pandering to be linked to material determined to be “obscene.” The bill also would create a new felony for using child pornography, virtual or not, to entice a minor into engaging in a sexual activity.
Additionally, S. 151 would establish a victim shield law to keep the identity of child victims out of court, increase the penalties for repeat offenders who cross state lines to sexually molest a minor, and expand the recordkeeping requirements for pornographic material and penalties for false recordkeeping.
“Although the bill is not perfect, it is a good-faith effort to provide powerful tools for prosecutors to deal with the problem of child pornography within constitutional limits,” said Sen. Leahy.
“The Act plugs the loophole that exists today where child pornographers can escape prosecution by claiming that their sexually explicit material did not actually involve real children,” added Sen. Hatch.
The committee approved, by voice vote, an amendment by Sens. Hatch and Leahy that would create a specific intent requirement in the new pandering crime. Sen. Leahy explained that the provision would “require the government to prove beyond a reasonable doubt that the defendant actually intended others to believe that the material in question is obscene child pornography.”
The amendment also would narrow the definition of “sexually explicit conduct” in prosecutions of computer-generated child pornography and would clarify that digital pictures are included in the PROTECT Act.
The committee approved, by voice vote, a second amendment by Sen. Hatch that would make it a crime to pander any material in a manner “that is intended to cause another to believe” that it contains a “visual depiction of a minor, actual or not, engaging in sexually explicit conduct.” According to Sen. Leahy, the amendment “would allow prosecution of anyone who ‘presented’ a movie that was intended to cause another person to believe that it included a minor engaging in sexually explicit conduct, whether or not it was obscene and whether or not any real child was involved.”
