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] |