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2467

Keeney Memorandum—Recent Amendments to the Federal Child Pornography and Abuse Statutes—18 U.S.C. § 2252A


MEMORANDUM FOR ALL UNITED STATES ATTORNEYS
FROM:     John C. Keeney
          Acting Assistant Attorney General
SUBJECT:  Recent Amendments to the Federal Child Pornography
          and Abuse Statutes.
This memorandum discusses the latest amendments to the federal child pornography and abuse statutes and provides guidance to federal prosecutors. The amendments, contained in the recently enacted Department of Defense Appropriations Act of 1997, PL 104-208 (HR 3610), 110 STAT 3009 (Sept. 30, 1996) (found in the Westlaw Public Law database), create new child pornography offenses and increased penalties for both child sexual abuse and child pornography crimes. See attached amendments which appear in a Westlaw format. The Senate Report discussing the changes can be found at S. Rept. 358, 104th Cong. 2d Sess. 1996, 1996 WL 506545 (Leg. Hist.). Any questions regarding the application or use of these new statutes should be directed to the Child Exploitation and Obscenity Section (CEOS), 202-514-5780.

1. New prohibition against computer generated child pornography

Congress solicited the Department's views during the drafting process of the Act and in response created a separate statutory scheme for computer generated or altered child pornography. This action assures that the child pornography statutes already in force would not be subject to constitutional challenge if the Act's amendments were challenged. The new statutory prohibitions are contained in a new section 2252A.

Section 2252 prohibits, among other things, the distribution of visual depictions of a child engaged in sexually explicit conduct. Section 2252A expands the definition of the prohibited material by using the much more inclusive term "child pornography" which is defined in amended section 2256. A second difference is found in the possessory offense set forth in section 2252A(a)(5)(B), which makes it illegal to possess any item containing 3 or more images of child pornography. This language, while appearing to assist prosecutors by removing the "three or more items," language from section 2252(a)(4)(B), is problematic, since it would allow the possession of an infinite number of items containing what appears to be child pornography so long as no single item contains more than two images. Thus, a defendant who copied 1000 images of child pornography onto 500 floppy disks would not run afoul of the child pornography possession statute under the new section 2252A(a)(5)(B). The Depart ent brought this to the attention of the Congress prior to final passage of the Bill. The language was also inserted in the existing section 2252(a)(4)(B) but removed upon the request of the Department.

2. New Definition of Child Pornography

Prior to the enactment of the Act, Chapter 110 of Title 18, did not use the term "child pornography," but defined such material as the visual depiction of a child engaging in or assisting another person to engage in the sexually explicit conduct." The term "child pornography," was only a lay term and not a term of art. The Act, however, amends section 2256 and uses the term "child pornography," defining it to include the following: (1) visual depictions where minors are depicted engaging in sexually explicit conduct; (2) visual depiction which are, or appears to be, of a minor engaging in sexually explicit conduct; (3) visual depictions which have been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (4) visual depictions which are 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.

The Act further defines the term "identifiable minor," as a person who was a minor at the time the visual depiction was created, adapted, or modified; or whose image as a minor was used in creating, adapting, or modifying the visual depiction; and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature. In reviewing the proposed language, the Department specifically raised with Congress the concern that the definition of the term "identifiable minor," might be viewed as requiring the Government to prove the specific identity of the child depicted or the child whose body parts are used in the created child pornography. Congress responded with a specific rule of construction that the definition "shall not be construed to require proof of the actual identity of the identifiable minor." New Section 2256(9)(B).

The definition also criminalizes material which is pandered as child pornography or which "conveys the impression that the material is or contains a visual depiction of a minor engaged in sexually explicit conduct." This definition will reach a great deal of material, including material featuring adults if the visual depiction was advertised or pandered as child pornography. Congress has made a clear determination that pseudo-child pornography places children at risk by encouraging certain behaviors and being susceptible to invidious uses by pedophiles to harm children.

The Criminal Division expects that this section will be the subject of an "as applied" constitutional challenge. Prosecutors must consult with the CEOS prior to undertaking any prosecution utilizing the new definition.

3. Congressional Findings

Section 121 of H.R. 3610, the "Child Pornography Prevention Act of 1996" (hereinafter "the Act"), includes Congressional findings which explain the need for the amendments. Prosecutors should be familiar with these findings since they support the current statutes as well as the amendments they precede. The Department worked closely with the Congress as these findings were made to assure accuracy and minimize the ability of defendants to mischaracterize them. Of particular importance are the findings which pertain to the use of new technologies to alter or create images and the dangers posed by such material. For a thorough discussion of the purpose of the Act, see the Senate Report, cited above.

a. Specific uses and effects of child pornography

The Act contains 13 findings. Findings 1-4 pertain to the harm to children from child pornography and its uses by pedophiles. Findings 5 and 6 detail the uses of new photographic and computer imaging technologies to exploit children. Findings 7-10 list the ways such computer generated or altered images may be used to exploit children given that such images may be "virtually impossible for unsuspecting viewers to ...determine if the offending material was produced using children." This particular finding is of critical importance since it should not be read to mean that Congress has found that such images cannot be distinguished from child pornography featuring actual children. The Department worked closely with Congress to assure that the finding read clearly and reflected the current reality that experts are able to view images and determine whether they have been altered. This is critical since defense attorneys are attempting to assert that there is no sa tisfactory method to distinguish actual child pornography from that altered or generated using new technology. Prosecutors are encouraged to call CEOS attorneys who will put them in contact with experts in this area.

b. Harmful effects of child pornography on children and society as a class

Findings 11-13 address the harm to children generally which are caused by sexualizing and eroticizing children through pornography. This finding is critical as an underpinning for the expanded definition of child pornography. Under traditional child pornography jurisprudence, the Courts have recognized the compelling governmental interest in protecting children from child pornography because it is directly related to the welfare of children, both those who are used to make it and those who are manipulated by it. The expanded definition, however, is based on a compelling governmental interest in prohibiting any material, whether it depicts real children, an amalgam of real children, or is wholly fictional but looks real, on the basis that such a prohibition will halt the continued growth of 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."

In sum, these findings significantly expand the basis for governmental action in light of new technologies and threats to children. As this memo illustrates, these findings can be used to support broad new investigative and prosecutive efforts which are aimed not only at hardcore sexually explicit depictions of children, but other less explicit but equally sexually exploitative images. In light of this reality, federal prosecutions under the Act must be undertaken in consultation with the CEOS. The Division expects that the initial prosecutions in this area and any reliance on these findings will be the subject of constitutional challenge and affect national policy and litigation strategies. See Senate Report for a thorough refutation of expected arguments that the new definition of child pornography is overbroad.

4. Penalties

a. Title 18 U.S.C. § 2252A(a)(1)-(a)(4)
  • first offense - a violation of paragraphs 1-4 of subsection (a), prohibiting the knowing mailing, transporting or shipping, receiving, distributing, reproducing for distribution, or possessing with intent to sell or selling on government land of child pornography, is punishable by up to 15 years in prison.

  • subsequent offense - a violation of paragraphs 1-4 by a person with a prior conviction under chapter 110 or 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 trafficking in child pornography incurs a minimum five years' incarceration with a thirty year maximum.

b. Title 18 U.S.C. § 2252A(a)(5)
  • first offense - Possessory offenses under section 2252A(a)(5) have a five year statutory maximum for a first offense.

  • subsequent offense - two year mandatory minimum with ten year statutory maximum if the offender has a prior offense as set forth above.
c. Title 18 U.S.C. § 2251(d)
  • first offense - mandatory minimum sentence of ten years with a twenty year maximum for production of child pornography offenses.

  • second offense - If the offender has one prior conviction for under chapter 110 or chapter 109A, or under the laws of any state relating to the sexual exploitation of children, the mandatory minimum is raised to fifteen years with a maximum sentence of thirty years.

  • subsequent offense - An offender with two or more such prior convictions faces a mandatory minimum of thirty years with a maximum sentence of life in prison.

d. Title 18 U.S.C. § 2252(a)(1)-(a)(3)
  • first offense - a violation of paragraphs 1-3 of subsection (a), prohibiting the knowing mailing, transporting or shipping, receiving, distributing, reproducing for distribution, or possessing with intent to sell or selling on government land of visual depictions of minors engaged in sexually explicit conduct, is punishable by up to 15 years in prison.
  • subsequent offense - a violation of paragraphs 1-3 by a person with a prior conviction under chapter 110 or 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 trafficking in child pornography incurs a minimum five years' incarceration with a thirty year maximum.
    e. Title 18 U.S.C. § 2252(a)(4)

    • first offense - possessory offenses under section 2252(a)(4) have a five year statutory maximum for a first offense.

    • subsequent offense - two year mandatory minimum with ten year statutory maximum if the offender has a prior offense as set forth above.

    f. Title 18 U.S.C. § 2241(c)
    Subsection 7, the Amber Hagerman Child Protection Act, creates a new § 2241(c) by adding the offenses of crossing a state line with intent to engage in a sexual act with a person under 12, which is also an offense under 18 U.S.C. § 2423(b), and aggravated sexual abuse of a person between the ages of twelve and sixteen by anyone more than four years older than the victim.

    • first offense - punishable by any term of years or life.

    • subsequent offense - a violation of subsection (c) by a person that has previously been convicted of another federal offense under this subsection, 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, shall be sentenced to life in prison.

    • Recommendations for Charging -If the minor is under age 12 and the travel is domestic, 18 U.S.C. § 2241(c) should now be used; if the minor is over age 12, or if the travel was across international, and not state lines, 18 U.S.C. §  2423(b) is the appropriate statute. 18 U.S.C. § 2241(c) should be used if the conditions warrant the charge of aggravated sexual assault; if those conditions are not present, and the victim is between ages 12-16, and the offender is more than four years older, then 18 U.S.C. § 2243(a) should be used.
    The Act also amends Title 18 U.S.C. § 2243(a), which prohibits knowing sexual activity with a minor under 12 years of age in the special maritime and territorial jurisdiction of the United States. This prohibition now extends to crossing a state line with intent to engage in sexual activity with a minor under 12 years of age; this offense is also included in 18 U.S.C. § 2423(b), but here is restricted by age of the victim and solely domestic travel. This amendment appears to duplicate the offense added in § 2241(c).

    In sum, the impact of the Amber Hagerman provisions is enhanced penalties for sex with minors under age 16.

    5. The Privacy Protection Act

    The Privacy Protection Act (PPA), Title 42 U.S.C. § 2000aa, severely limits the ability of law enforcement to search for or seize documentary or work product materials from a person who is reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication--generally requiring law enforcement to use subpoenas instead. Although the original statute did not protect such materials when there is probable cause to believe they are evidence of crime in the hands of a suspect, a series of exceptions and subexceptions limited the scope of this provision: the statute continued to cover evidentiary materials possessed by a suspect when the crime consisted of the possession, communication, or withholding of those same documentary or work product materials--unless the crime involved classified information or restricted data. In the most recent legislation, Congress added child pornography offenses to this last exc usion.While this amendment is certainly welcome, it does not really address the Department's concerns about the statute. The PPA often creates substantial problems for law enforcement where computers are used to commit or facilitate crime. For example, individuals who distribute materials or who are preparing materials for distribution via the internet may fall into the protected category of public communicators, and the seizure of this material--whether the object of the warrant or incidental to it--may result in strict civil liability for the government. In child pornography cases where the intended target of a search operated a bulletin board system, operated a business, or published information via the internet, agents routinely encounter the risk of violating the PPA, because targets of the search often commingle protected material with contraband or other permissible objects of the warrant. In the event that unrelated work product or documentary materials are searched or seiz ed incidentally pursuant to a warrant, the PPA may still apply, and an aggrieved party may have a civil cause of action for damages for such search or seizure. Thus, the major problem of incidental searches and seizures has not been addressed by this amendment.

    Prosecutors and agents should continue to consult with the CEOS and must seek the approval of the Assistant Attorney General for the Criminal Division, through the Office of Enforcement Operations, prior to undertaking a search or seizure for documentary or work product materials from a person who is reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. Prosecutors are also encouraged to familiarize themselves with the requirements of 28 CFR section 59 et seq.

    6. Fourth Circuit Opinion Reversing Conviction Because of Technical Error in Original Drafting of Section 2423(b).

    Title 18 U.S.C. section 2423(b) prohibits travel with the intent to engage in a criminal sexual act with a juvenile. When Section 2423(b) was enacted, there was a minor drafting error made in the cross-referencing to the definitions section of 109A. Therefore, from September, 1994 until the glitch was corrected in December, 1995, the statute inadvertently cross-referenced to 18 U.S.C. section 2245 (sexual abuse resulting in death) rather than the intended statute 18 U.S.C. 2246 (definitions for chapter). A result of this drafting error was the Fourth Circuit's decision in U.S. v. Childress, ___ F.3d ___, 1996 WL 741799 (4th Cir. (Md), Dec. 31, 1996)(No. 96-4122) to overturn the defendant's conviction. This is the first case to face such a challenge. If similar challenges are presented, arguments should be made citing legislative intent and the drafting amendment. Any cases in which the cause of action occurred subsequent to December, 1995, will not be affected by the decision.

    [updated January 1998] [cited in Criminal Resource Manual 1969; USAM 9-75.001]