|9-75.001||Introduction—Child Abuse, Child Pornography and Obscenity Crimes|
|9-75.020||General Prosecution Policies and Priorities|
|9-75.030||Coordination of Cases and Investigations|
|9-75.040||Use of a Computer to Commit Child Pornography Crimes|
|9-75.100||Multiple District Investigations and Prosecutions|
|9-75.200||Sexual Abuse—18 U.S.C. §§ 2241 et seq.|
|9-75.300||Transportation for Illegal Sexual Activity and Related Crimes—18 U.S.C. §§ 2421 et seq.|
|9-75.420||Obscenity/Sexual Exploitation—Federal-State Relations|
|9-75.500||Obscenity/Sexual Exploitation—Forfeiture, Restitution, and Civil Remedies|
|9-75.510||Obscenity/Sexual Exploitation—Request to Re-export|
|9-75.610||Child Victims' and Child Witnesses' Rights|
9-75.001 - Introduction—Child Abuse, Child Pornography and Obscenity Crimes
Obscenity crimes are prosecuted under 18 U.S.C. §§ 1460 through 1469. The substantive crimes are set forth in sections 1460-1466 and 1468. Section 1467 authorizes criminal forfeiture of the obscene items, the profits or proceeds obtained from the commission of the crimes, and the property used to commit or promote the commission of the obscenity crimes.
Prosecutions involving child pornography and the sexual exploitation of children are initiated under 18 U.S.C. §§ 2251 through 2260. The substantive statutes are sections 2251, 2251A, 2252, 2252A and 2260 and the relevant definitions are set forth in section 2256. Section 2253 authorizes criminal forfeiture, and section 2254 authorizes civil forfeiture, of the items depicting child pornography, the profits or proceeds obtained from the commission of the crimes, and the property used to commit or promote the commission of the crimes. Section 2255 provides a civil remedy for victims and section 2259 provides mandatory restitution to victims. Section 2257 creates record keeping requirements for items depicting sexually explicit conduct and section 2258 creates a misdemeanor crime for failure to report child abuse.
Sexual abuse crimes are prosecuted under 18 U.S.C. §§2241 through 2248. The age of the victim and whether force was used are two important facts that help determine the appropriate statute and punishment. Section 2247 increases the maximum penalties for repeat offenders and section 2248 mandates restitution to the victims.
Crimes involving the transportation of individuals for illegal sexual activities are governed by 18 U.S.C. §§ 2421 through 2423. Section 2424 creates reporting requirements for individuals operating homes or other places for prostitution or related activities. Section 2425 addresses the use of interstate facilities to transmit information about a minor. Section 2426 provides that the maximum term of imprisonment for a violation of a Chapter 117 crime after a prior sex offenses conviction shall be two times the term otherwise specified. Finally, Section 2427 includes the production of child pornography in the definition of "sexual activity for which any person can be charged with a criminal offense" in travel cases.
Section 1305 of Title 19 prohibits the importation of obscene items and authorizes the seizure and forfeiture of such items. Sections 3008 and 3010 of Title 39 impose requirements on how and to whom sexually oriented advertisements may be mailed. Individuals who violate these requirements may be prosecuted under 18 U.S.C. §§ 1735 and 1737. Section 223 of Title 47 prohibits, in certain situations, obscene or indecent telephone calls.
For an overview of the statutes that can be used to prosecute persons who commit obscenity, etc. violations, see the below-listed sections of the Criminal Resource Manual
|Distribution of Obscene Matter—Statutes||Criminal Resource Manual at 1963|
|Immoral Articles—Prohibition of Importation||Criminal Resource Manual at 1964|
|Sexually Oriented Advertisements||Criminal Resource Manual at 1965|
|Sexual Exploitation of Children||Criminal Resource Manual at 1966|
|Selling or Buying of Children (Section 2251A)||Criminal Resource Manual at 1967|
|Certain Activities Relating to Material Involving the Sexual Exploitation of Minors—18 U.S.C. § 2252||Criminal Resource Manual at 1968|
|Certain activities relating to material involving the sexual exploitation of minors—18 U.S.C. § 2252A||Criminal Resource Manual at 1969
|Criminal Forfeiture||Criminal Resource Manual at 1970|
|Civil Forfeiture||Criminal Resource Manual at 1971|
|Civil Remedy for Personal Injuries||Criminal Resource Manual at 1972|
|Definitions for 18 U.S.C. §§ 2251, 2251A, 2252A and 2252||Criminal Resource Manual at 1973|
|Record keeping requirements||Criminal Resource Manual at 1974|
|Failure to report child abuse||Criminal Resource Manual at 1975|
|Production of Sexually Explicit Depictions of a Minor for Importation into the United States||Criminal Resource Manual at 1976|
|Mandatory Restitution (18 U.S.C. § 2259)||Criminal Resource Manual at 1977|
9-75.020 - General Prosecution Policies and Priorities
Prosecution of all crimes involving the sexual abuse or sexual exploitation of children and the distribution of child pornography is strongly encouraged. Investigation has shown that many individuals who produce, import or consensually exchange child pornography do so repeatedly and with full knowledge that it is illegal to do so. In addition, many of these individuals engage in child sexual abuse or would like to do so, given the right opportunity. Many of these people also intentionally engage in occupations or activities that bring them into frequent contact with children. Finally, many people use child pornography to encourage their child victims to engage in sexual activity. In evaluating such cases, consideration should be given to,inter alia, characteristics of the material, such as the age of the involved child, the type of conduct depicted, the number of involved children, the quantity of the involved material, whether violence or force is used against the child, and characteristics of the target, such as whether the target currently is engaging in sexual activity with children, whether the target is the parent or guardian, or is in a position of trust with the depicted children, whether the target has shown the material to children, whether the target is making money from the conduct, whether the target has committed any prior offenses involving child sexual abuse or exploitation, and the safety of the community.
Prosecution of large scale distributors of obscene material who realize substantial income from their multi-state operations also is encouraged. Prosecution priority should be given to cases in which there is evidence of involvement by known organized crime figures. However, prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations. Therefore, prosecution of such distributors also may be appropriate on a case-by-case basis. In evaluating obscenity cases, substantial deference should be given to the United States Attorney's determination of the viability of the case based upon the factors set forth in Miller v. California, 413 U.S. 15 (1973). Under the legal test of obscenity set forth in that case, material is obscene if, taken as a whole, the average person in the community would find that the material appeals to the prurient interest of its intended audience, depicts sexual conduct in a patently offensive way, and a reasonable person would find the material, taken as a whole, lacks serious literary, artistic, political or scientific value.
9-75.030 - Coordination of Cases and Investigations
CEOS and USAOs will work together to ensure that crimes involving child pornography, child sexual abuse, child sexual exploitation and obscenity are vigorously enforced throughout the nation. Generally, such crimes are prosecuted by the USAO in the relevant district. However, USAOs shall inform CEOS of all significant investigations and cases being prosecuted in the district as well as all significant judicial decisions issued in such cases.
CEOS attorneys have substantial experience in prosecuting these types of crimes and they are available to assist in the investigative stage and/or to handle trials as chair or co-chair. CEOS attorneys may also initiate any activity related to an investigation or prosecution in a district, but before doing so, CEOS shall notify the United States Attorney for that district. If the United States Attorney objects to CEOS initiating the activity, the matter shall be resolved by the Deputy Attorney General.
See also the notification requirement for 18 U.S.C. § 1591 prosecutions in JM 8-3.120.
9-75.040 - Use of a Computer to Commit Child Pornography Crimes
Title 18, United States Code, Section 2252 prohibits, among other things, the interstate distribution of visual depictions of a child engaged in sexually explicit conduct. This statute is applicable regardless of the method of distribution (via mail, shipping, computer, etc.) but it requires that a real child be involved in the production of the sexually explicit depiction. Improved computer technology, such as "morphing," has created a potential defense to section 2252 crimes. Morphing is the term given to the ability to use a computer to change or create an image from another image. An example of morphing is taking a computer image depicting adult pornography and using a computer and specific types of software to change the faces and bodies of the participants so that they appear to depict children.
To address this and other problems, Congress passed the Child Pornography Prevention Act of 1996, which became effective September 30, 1996. This Act created a new crime, 18 U.S.C. § 2252A, that incorporates an expanded definition of prohibited material by using the term "child pornography." The Act also created "child pornography" definitions, 18 U.S.C. § 2256(8) and (9), that eliminate the requirement that a real child be involved in the production of the visual depiction. The constitutionality of the new statute, including the "child pornography" definitions, is being challenged in jurisdictions throughout the nation. See the Criminal Resource Manual at 1969 for further information.
9-75.050 - Telecommunications
Title 47 U.S.C. § 223 makes it a Federal offense for any person in interstate or foreign communication by means of a telecommunication device to knowingly make, create or solicit and initiate transmission of any communication which is obscene, lewd, or indecent. This section was amended by the Communications Decency Act of 1996 (CDA). The indecency part of the Act was challenged, and on June 26, 1997, the United States Supreme Court held that the CDA's "indecent transmission" and "patently offensively display" provisions under Sections 223(a)(1)(B) and (a)(2) and 223(d) abridge the freedom of speech protected by the First Amendment. Reno v. ACLU, 521 U.S. 824 (1997). On July 30, 1997, the United States District Court in Philadelphia signed a final order permanently enjoining the Attorney General, the Department of Justice, and all acting under the Attorney General's discretion and control, from enforcing, prosecuting, investigating, or reviewing any matter premised upon "indecent communications." The Department, however, is not enjoined from enforcing, prosecuting, investigating, or reviewing allegations of violations of the Section based on prohibited obscenity or child pornography. See the Criminal Resource Manual at 2465
This section was also amended by the Child Online Protection Act of 1998 which was intended to restrict the dissemination of "obscene" or "harmful to minors" materials over the World Wide Web and provided for civil and criminal penalties. This statute was likewise challenged in ACLU et al. v. Janet Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999). The court has entered a stay of proceedings in the case pending the appeal of the preliminary injunction entered by the court.
For additional information related to the section 223 amendments, see the below-listed sections of the Criminal Resource Manual
|Telecommunications Offenses Described||Criminal Resource Manual at 1978|
|Special Considerations in Obscene or Harassing Telephone Calls||Criminal Resource Manual at 1979|
|Obscene or Harassing Telephone Calls—Jury Trial||Criminal Resource Manual at 1980|
9-75.100 - Multiple District Investigations and Prosecutions
Multiple district investigations are investigations in which either (1) the target commits the criminal conduct in more than one district or (2) there are multiple targets who may be located in different districts. An example of the first type of investigation is an individual who coerces victims in multiple states to produce and send him sexually explicit images and, therefore, is subject to prosecution in every district where a victim is located. An example of the second type of investigation is that of a child exploitation enterprise engaged in advertising, distributing, and receiving child pornography over the Internet, where the targets are located in many different districts.
All districts implicated in a multiple district investigation shall consult with each other to determine how best to proceed. Coordination with the Child Exploitation and Obscenity Coordinator in each district is encouraged. Generally, multiple prosecutions are not favored. See JM 9-2.031 for policies relating to multiple prosecutions. In deciding in which district(s) to initiate charges or enter into a global plea agreement with the defendant(s), the following factors should be considered: (1) which district initiated the investigation; (2) the resources devoted by the district to the investigation; (3) where the most serious offense was committed, (4) where the most harm was caused, (5) residence of witnesses, (6) residences of victims, (7) location of evidence, and (8) applicable law. Consistent with the Attorney General’s Guidelines for Victim and Witness Assistance, restitution should be considered early in the investigation and throughout the prosecution.
In multi-district investigations that are likely to generate leads and prosecutions in numerous districts (but are not national investigations under JM 9-75.110 involving more than 15 districts), USAOs should notify CEOS as early as possible in the investigative stage to permit coordination and early resolution of venue issues, if any.
9-75.110 - Nationwide Investigations
"Nationwide Investigations" are investigations that will likely have an impact in at least fifteen districts. (See JM 9-75.100 "Multiple District Investigations and Prosecutions" if the investigation will likely affect less than fifteen but more than one district.) Because such investigations will have a broad impact, an attorney should always supervise their development and implementation. The supervising attorney can be either a USAO or CEOS attorney. The supervising attorney, whether from CEOS or a USAO, shall notify CEOS and the Child Exploitation Working Group of the AGAC (through CEOS) during the development of a nationwide investigation, and shall cause all United States Attorneys to be notified of the nationwide investigation prior to its implementation.
The supervising attorney conducting a nationwide investigation shall notify the Child Exploitation and Obscenity Coordinator in each district where a potential defendant is located as soon as that information develops. This will permit any United States Attorney to provide input regarding potential problems with the initiative that may hinder later prosecutions in his or her district.
The supervising attorney shall keep CEOS and the involved Coordinators apprised of the progress of the investigation The supervising attorney shall also complete and submit to CEOS and the Child Exploitation Working Group of the AGAC (CEO Working Group), a "Notification of Child Exploitation Investigation" form.
A review of the proposed nationwide investigation will be performed by an Advisory Committee (appointed by the Child Exploitation and Obscenity Working Group of the AGAC). The Advisory Committee is comprised of six Assistant United States Attorneys (AUSAs) with expertise in the area of child exploitation investigations, one attorney from the Child Exploitation and Obscenity Section of the United States Department of Justice, and technical advisor(s) as deemed necessary by the Advisory Committee. The six AUSAs selected by the CEO Working Group should be selected with consideration of subject-matter expertise, experience, and office size and/or location; and should represent a diversity of viewpoints. Upon reconfiguration of the Advisory Committee in 2014, members will serve terms on a staggered basis with two members leaving the Advisory Committee every two years. The two Advisory Committee members with the most experience with the Department will be the first members to have their terms expire. Every two years, the terms of the most experienced members on the committee will expire. No Advisory Committee member shall serve a term of longer than six years.
Prior to the expiration of an Advisory Committee member's term, the EOUSA liaison to the CEO Working Group shall advertise for new AUSA members to be nominated by the United States Attorneys to fill the vacancy. CEOS will submit a recommendation to the CEO Working Group for any vacancy of the CEOS Advisory Committee member. The EOUSA liaison will forward the nominated AUSA candidates to the CEO Working Group. Membership selection decisions will be made by the Chair of CEO Working Group, in consultation with all Working Group members.
The Advisory Committee will review all proposals for nationwide child exploitation investigations and offer advice regarding the investigation. The Advisory Committee, upon receiving a notification, will notify all districts that a notification has been received and is under consideration by the Advisory Committee. The Advisory Committee will discuss the proposal with the initiating district and present advice to the initiating district. The Advisory Committee will prepare a brief report regarding its advice and disseminate the report to all districts within fourteen working days of receiving the notification.
The Advisory Committee also provides consultation, advice, and and recommendations to the Child Exploitation and Obscenity Working Group of the AGAC on an as-needed basis.
9-75.200 - Sexual Abuse—18 U.S.C. §§ 2241 et seq.
The primary federal statutes concerning sexual abuse are in Chapter 109A, 18 U.S.C. §§ 2241 to 2245.
For more information on the sexual abuse statutes, see the following sections of the Criminal Resource Manual
9-75.300 - Transportation for Illegal Sexual Activity and Related Crimes—18 U.S.C. §§ 2421 et seq.
Section 2421 of Title 18 prohibits anyone from knowingly transporting an individual in interstate or foreign commerce with the intent that the individual engage in prostitution or any criminal sexual activity, or attempts to do so, and imposes a maximum punishment of ten years' imprisonment and/or a fine under Title 18. For information on § 2422 (Coercion and Enticement), see the Criminal Resource Manual at 2001. For information on § 2423 (Transportation of Minors), see the Criminal Resource Manual at 2002. See also JM 9-79.100.
9-75.400 - Obscenity/Sexual Exploitation—Venue
Cases under the obscenity and child pornography statutes in which the proscribed item is mailed may be prosecuted in the district where the material is mailed or deposited with a facility of interstate commerce, the district of receipt, or any intermediate district through which the material passes. See 18 U.S.C. § 3237. In cases where there are complaints by postal patrons about the unsolicited receipt of child pornography or obscene material, the district of receipt would appear to be the appropriate choice of venue. On the other hand, in cases involving numerous mailings by a distributor into various districts, the district of origin may be the appropriate venue for the case. Furthermore, if a case is to be based solely upon test purchases by postal inspectors, it may be venued in the district of receipt where the government has some information showing that there were prior mailings into the recipient districts by the individual involved. Prosecutions should not be brought in jurisdictions through which obscene material passes in transit except in unusual circumstances.
Cases under the child pornography and obscenity statutes in which the crime was committed via computer may be prosecuted in the district where the defendant committed any of the acts proscribed in the statutes. In general, in cases in which the crime was committed via the computer, all of the charges distribution, receipt, possession, etc.) should be brought in the district in which the target and his computer are located. Multiple prosecutions generally are discouraged.
9-75.410 - Pre-trial Diversion
Pre-trial diversion for crimes involving child pornography, child sexual abuse, the sexual exploitation of children and obscenity is generally not favored, however, it may be an appropriate and just disposition in certain cases.
9-75.420 - Obscenity/Sexual Exploitation—Federal-State Relations
Federal prosecution of obscenity and child pornography cases should focus upon producers and interstate distributors. However, cases involving straight possession may warrant federal prosecution and production and distribution cases may be more appropriately prosecuted in state court. Moreover, many cases include both federal charges (such as distribution of pornography) and local charges (such as sexual abuse). Hence, cooperation between federal and local officers and prosecutors is strongly encouraged and can be highly productive in both federal and local efforts. See Fed. R. Cr. P. 6(e). The formation of multi-agency and multi-jurisdictional task forces is strongly encouraged.
9-75.500 - Obscenity/Sexual Exploitation—Forfeiture, Restitution, and Civil Remedies
Statutes within the child sexual exploitation and obscenity chapters authorize the forfeiture of any property (1) depicting child pornography or obscene material, (2) constituting or traceable to proceeds obtained from a child pornography obscenity crime or (3) used, or intended to be used, to commit such an offense. 18 U.S.C. §§ 1467, 2253, 2254.
Section 2248 mandates that restitution to sexual abuse victims be imposed upon conviction of violations of sections 2241-2244. Section 2259 mandates the same restitution be made to child pornography or child exploitation victims upon conviction of violations of 18 U.S.C. §§ 2251, 2251A, 2252, 2252A and 2260. Both restitution orders may be enforced by either the government or a victim.
Section 2255 of Title 18 permits a minor victim of a section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 violation to sue for actual damages in any appropriate United States District Court. Sustained damages are deemed to be no less than $150,000.
9-75.510 - Obscenity/Sexual Exploitation—Request to Re-export
For a discussion of requests to re-export, see Criminal Resource Manual at 2469.
9-75.610 - Child Victims' and Child Witnesses' Rights
The Victims of Child Abuse Act of 1990 (VCAA) (18 U.S.C. § 3509) was enacted in response to the alarming increase in reports of suspected child abuse cases made each year. In such cases, because the investigation and prosecution of child abuse is extremely complex, too often the system has not paid sufficient attention to the needs and welfare of the child victim, thus aggravating the trauma that the child victim had already experienced. Therefore, in order to address this, the VCAA provided, inter alia, authorization for training and technical assistance to judges, attorneys and others involved in State and Federal court child abuse cases; requires certain professionals to report suspected cases of child abuse under Federal jurisdiction; and amends the United States criminal code to ensure protection of children's rights in court and throughout the criminal justice system.
The Attorney General Guidelines for Victim and Witness Assistance 2000 state that the primary goal of every Justice Department law enforcement officer, investigator, prosecutor, victim/witness professional and staff member shall be to reduce the trauma to child victims and child witnesses caused by the criminal justice system. To that end, Justice Department personnel are required to provide child victims with referrals for services, and should provide child witnesses with services referrals.
For additional information regarding victims, see JM 3-7.300 et seq.
[updated November 2000]