Extracts from Public Law 108-21
PENALTIES AGAINST SEX TOURISM.
(a) IN GENERAL.--Section 2423 of title 18,
United States Code, is amended by striking
subsection (b) and inserting the following:
"(b) TRAVEL WITH INTENT TO
ENGAGE IN ILLICIT SEXUAL CONDUCT.--A person who travels in interstate commerce
or travels into the United States, or a United States citizen or an alien
admitted for permanent residence in the United States who travels in foreign
commerce, for the purpose of engaging in any illicit sexual conduct with
another person shall be fined under this title or imprisoned not more than 30
years, or both.
"(c) ENGAGING IN ILLICIT SEXUAL CONDUCT
IN FOREIGN PLACES.--Any United States citizen or alien admitted for permanent
residence who travels in foreign commerce, and engages in any illicit sexual
conduct with another person shall be fined under this title or imprisoned not
more than 30 years, or both.
"(d) ANCILLARY OFFENSES.--Whoever, for
the purpose of commercial advantage or private financial gain, arranges,
induces, procures, or facilitates the travel of a person knowing that such a
person is traveling in interstate commerce or foreign commerce for the purpose
of engaging in illicit sexual conduct shall be fined under this title,
imprisoned not more than 30 years, or both.
"(e) ATTEMPT AND CONSPIRACY.--Whoever
attempts or conspires to violate subsection (a), (b), (c), or (d) shall be
punishable in the same manner as a completed violation of that subsection.
"(f) DEFINITION.--As used in this
section, the term 'illicit sexual conduct' means
(1) a sexual act (as defined in section 2246) with a person under 18 years of
age that would be in violation of chapter 109A if the sexual act occurred in
the special maritime and territorial jurisdiction of the United States; or (2)
any commercial sex act (as defined in section 1591) with a person under 18
years of age.
"(g) DEFENSE.--In a prosecution under
this section based on illicit sexual conduct as defined in subsection (f)(2),
it is a defense, which the defendant must establish by a preponderance of the
evidence, that the defendant reasonably believed that the person with whom the
defendant engaged in the commercial sex act had attained the age of 18
Congress finds the following:
(1) Obscenity and child pornography are not
entitled to protection under the First Amendment under Miller v. California,
413 U.S. 15 (1973) (obscenity), or New York v. Ferber, 458 U.S. 747 (1982)
(child pornography) and thus may be prohibited.
(2) The Government has a compelling state
interest in protecting children from those who sexually exploit them, including
both child molesters and child pornographers. "The prevention of sexual
exploitation and abuse of children constitutes a government objective of
surpassing importance," New York v. Ferber, 458 U.S. 747, 757 (1982), and
this interest extends to stamping out the vice of child pornography at all
levels in the distribution chain. Osborne v. Ohio, 495 U.S. 103, 110 (1990).
(3) The Government thus has a compelling
interest in ensuring that the criminal prohibitions against child pornography
remain enforceable and effective. "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."
Ferber, 458 U.S. at 760.
(4) In 1982, when the Supreme Court decided
Ferber, the technology did not exist to:
(A) computer generate depictions
of children that are indistinguishable from depictions of real children;
(B) use parts of images of real
children to create a composite image that is unidentifiable as a particular
child and in a way that prevents even an expert from concluding that parts of
images of real children were used; or
(C) disguise pictures of real
children being abused by making the image look computer-generated.
(5) Evidence submitted to the Congress,
including from the National Center for Missing and Exploited Children,
demonstrates that technology already exists to disguise depictions of real
children to make them unidentifiable and to make depictions of real children
appear computer-generated. The technology will soon exist, if it does not already,
to computer generate realistic images of children.
(6) The vast majority of child
pornography prosecutions today involve images contained on computer hard
drives, computer disks, and/or related media.
(7) There is no substantial evidence that any
of the child pornography images being
trafficked today were made other than by the abuse of real children.
Nevertheless, technological advances since Ferber have led many criminal
defendants to suggest that the images of child pornography they possess are not
those of real children, insisting that the government prove beyond a reasonable
doubt that the images are not computer-generated. Such challenges increased
significantly after the decision in Ashcroft v. Free Speech Coalition, 535 U.S.
(8) Child pornography circulating on the
Internet has, by definition, been digitally uploaded or scanned into computers
and has been transferred over the Internet, often in different file formats,
from trafficker to trafficker. An image seized from a collector of child
pornography is rarely a first-generation product, and the retransmission of images
can alter the image so as to make it difficult for even an expert conclusively
to opine that a particular image depicts a real child. If the original image
has been scanned from a paper version into a digital format, this task can be
even harder since proper forensic assessment may depend on the quality of the
image scanned and the tools used to scan it.
(9) The impact of the Free Speech Coalition
decision on the Government's ability to prosecute child pornography offenders
is already evident. The Ninth Circuit has seen a significant adverse effect on
prosecutions since the 1999 Ninth Circuit
Court of Appeals decision in Free Speech Coalition. After that decision,
prosecutions generally have been brought in the Ninth Circuit only in the most
clear-cut cases in which the government can specifically identify the child in
the depiction or otherwise identify the origin of the image. This is a fraction
of meritorious child pornography cases. The National Center for Missing and
Exploited Children testified that, in light of the Supreme Court's affirmation
of the Ninth Circuit decision, prosecutors in various parts of the country have
expressed concern about the continued viability of previously indicted cases as
well as declined potentially meritorious prosecutions.
(10) Since the Supreme Court's decision in
Free Speech Coalition, defendants in child pornography cases have almost
universally raised the contention that the images in question could be virtual,
thereby requiring the government, in nearly every child pornography
prosecution, to find proof that the child is real. Some of these defense efforts
have already been successful. In addition, the number of prosecutions being
brought has been significantly and adversely affected as the resources required
to be dedicated to each child pornography case now are significantly higher
than ever before.
(11) Leading experts agree that, to the extent
that the technology exists to computer generate realistic images of child
pornography, the cost in terms of time, money, and expertise is--and for the
foreseeable future will remain-- prohibitively
expensive. As a result, for the foreseeable future, it will be more
cost-effective to produce child pornography using real children. It
will not, however, be difficult or expensive to use readily available
technology to disguise those depictions of real children to make them unidentifiable
or to make them appear computer-generated.
(12) Child pornography results from the abuse
of real children by sex offenders; the production of child pornography is a
byproduct of, and not the primary reason for, the sexual abuse of children. There
is no evidence that the future development of easy and inexpensive means of
computer generating realistic images of children would stop or even reduce the
sexual abuse of real children or the practice of visually recording that abuse.
(13) In the absence of congressional action,
the difficulties in enforcing the child pornography laws will continue to grow
increasingly worse. The mere prospect that the technology exists to create
composite or computer-generated depictions that are indistinguishable from
depictions of real children will allow defendants who possess images of real
children to escape prosecution; for it threatens to create a reasonable doubt
in every case of computer images even when a real child was abused. This
threatens to render child pornography laws that protect real children unenforceable.
Moreover, imposing an additional requirement that the Government prove beyond a
reasonable doubt that the defendant knew
that the image was in fact a real child--as some courts have done--threatens to
result in the de facto legalization of the possession, receipt, and
distribution of child pornography for all except the original producers of the
(14) To avoid this grave threat to the
Government's unquestioned compelling interest in effective enforcement of the
child pornography laws that protect real children, a statute must be adopted
that prohibits a narrowly-defined subcategory of images.
(15) The Supreme Court's 1982 Ferber v. New
York decision holding that child pornography was not protected drove child
pornography off the shelves of adult bookstores. Congressional action is
necessary now to ensure that open and notorious trafficking in such materials
does not reappear, and even increase, on the Internet.
IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY.
(a) Section 2256(8) of title 18, United States
Code, is amended--
(1) so that subparagraph (B) reads as
"(B) such visual depiction
is a digital image, computer image, or computer-generated image that is, or is
indistinguishable from, that of a minor engaging in sexually explicit conduct;
striking "; or" at the end of subparagraph (C) and inserting a
striking subparagraph (D).
Section 2256(2) of title 18, United States Code, is amended to read as follows:
"(2)(A) Except as provided in
subparagraph (B), 'sexually explicit conduct' means actual or simulated--
intercourse, including genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same or opposite sex;
"(iv) sadistic or
masochistic abuse; or
"(v) lascivious exhibition
of the genitals or pubic area of any person;
"(B) For purposes of subsection 8(B) of this
section, 'sexually explicit conduct' means--
"(i) graphic sexual
intercourse, including genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same or opposite sex, or lascivious
simulated sexual intercourse where the genitals, breast, or pubic area of any
person is exhibited;
"(ii) graphic or lascivious
or masochistic abuse; or
"(iii) graphic or simulated
lascivious exhibition of the genitals or pubic area of any person;".
Section 2256 is amended by inserting at the end the following new paragraphs:
"(10) 'graphic', when used with respect
to a depiction of sexually explicit conduct, means that a viewer can observe
any part of the genitals or pubic area of any depicted person or animal during
any part of the time that the sexually explicit conduct is being depicted; and
"(11) the term 'indistinguishable' used
with respect to a depiction, means virtually indistinguishable, in that the depiction
is such that an ordinary person viewing the depiction would conclude that the
depiction is of an actual minor engaged in sexually explicit conduct. This
definition does not apply to depictions that are drawings, cartoons, sculptures,
or paintings depicting minors or adults.".
Section 2252A(c) of title 18, United States Code, is amended to read as
"(c) It shall be an affirmative defense
to a charge of violating paragraph (1), (2),
(3)(A), (4), or (5) of subsection (a) that--
"(1)(A) the alleged child pornography was
produced using an actual person or persons engaging in sexually explicit
"(B) each such person was an adult at the
time the material was produced; or
"(2) the alleged child pornography was
not produced using any actual minor or minors.
affirmative defense under subsection (c)(2) shall be available in any
prosecution that involves child pornography as described in section 2256(8)(C).
A defendant may not assert an affirmative defense to a charge of violating paragraph
(1), (2), (3)(A), (4), or (5) of subsection (a) unless, within the time
provided for filing pretrial motions or at such time prior to trial as the
judge may direct, but in no event later than 10 days before the commencement of
the trial, the defendant provides the court and the United States with notice
of the intent to assert such defense and the substance of any expert or other
specialized testimony or evidence upon which the defendant intends to rely. If
the defendant fails to comply with this subsection, the court
shall, absent a finding of extraordinary circumstances that prevented timely
compliance, prohibit the defendant from asserting such defense to a charge of
violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) or presenting any evidence for which the defendant
has failed to provide proper and timely notice.".
(a) IN GENERAL.--Section 2257 of title 18,
United States Code, is amended--
subsection (d)(2), by striking "of this section" and inserting
"of this chapter or chapter 71,";
(2) in subsection (h)(3), by inserting
", computer generated image, digital image, or picture," after
"video tape"; and
(A) by striking "not more
than 2 years" and inserting "not more than 5 years"; and
(B) by striking "5
years" and inserting "10 years".
REPORT.--Not later than 1 year after enactment of this Act, the Attorney
General shall submit to Congress a report detailing the number of times since
January 1993 that the Department of Justice has inspected the records of any
producer of materials regulated pursuant to section 2257 of title 18, United
States Code, and section 75 of title 28 of the Code of Federal Regulations. The
Attorney General shall indicate the number of violations prosecuted as a result
of those inspections.
(a) APPOINTMENT OF TRIAL ATTORNEYS.--
(1) IN GENERAL.--Not later than 6 months after
the date of enactment of this Act, the Attorney General shall appoint 25
additional trial attorneys to the Child Exploitation and Obscenity Section of
the Criminal Division of the Department of Justice or to appropriate United
States Attorney's Offices, and those trial attorneys shall have as their
primary focus, the investigation and prosecution of Federal child pornography
and obscenity laws.
AUTHORIZATION OF APPROPRIATIONS.--There are authorized to be appropriated to
the Department of Justice such sums as may be necessary to carry out this
MISLEADING DOMAIN NAMES ON THE INTERNET.
GENERAL.--Chapter 110 of title 18, United States Code, is amended by inserting
after section 2252A the following:
"§ 2252B. Misleading domain names on
"(a) Whoever knowingly uses a misleading
domain name on the Internet with the intent to deceive a person into viewing
material constituting obscenity shall be fined under this title or imprisoned
not more than 2 years, or both.
"(b) Whoever knowingly uses a misleading
domain name on the Internet with the intent to deceive a minor into viewing
material that is harmful to minors on the Internet shall be fined under this
title or imprisoned not more than 4 years, or both.
"(c) For the purposes of this section, a
domain name that includes a word or words to indicate the sexual content of the
site, such as 'sex' or 'porn', is not misleading.
"(d) For the purposes of this section,
the term 'material that is harmful to minors' means any communication, consisting
of nudity, sex, or excretion, that, taken as a whole and with reference to its
"(1) predominantly appeals to a prurient
interest of minors;
"(2) is patently offensive to prevailing
standards in the adult community as a whole with respect to what is suitable
material for minors; and
"(3) lacks serious literary, artistic,
political, or scientific value for minors.
"(e) For the purposes of subsection (d),
the term 'sex' means acts of masturbation, sexual intercourse, or physcial
contact with a person's genitals, or the condition of human male or female
genitals when in a state of sexual stimulation or arousal.".
SENSE OF CONGRESS.
(a) FOCUS OF INVESTIGATION AND
PROSECUTION.--It is the sense of Congress that the Child Exploitation and
Obscenity Section of the Criminal Division of the Department of Justice should
focus its investigative and prosecutorial efforts on major producers,
distributors, and sellers of obscene material and child pornography that use misleading
methods to market their material to children.
(b) VOLUNTARY LIMITATION ON WEBSITE FRONT
PAGES.--It is the sense of Congress that the online commercial adult
entertainment industry should voluntarily refrain from placing obscenity, child
pornography, or material that is harmful to minors on the front pages of their
websites to protect juveniles from material that may negatively impact their
social, moral, and psychological development.
2010-2012 J. D. Obenberger. All rights reserved. No Claim is made as to
works in the public domain, to the text of statutes, administrative
regulations, and judicial decisions.
article is written to generally inform the public and does not provide
legal advice nor does it establish an attorney-client relationship. If
you have a legal issue or question, contact a lawyer. If you are
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Obenberger is a Chicago Loop lawyer concentrating in the law of free
expression and liberty under the United States Constitution, and his
firm has represented many owners, employees, and customers of
adult-oriented businesses, both online and in the real world. He can be
reached in the office at 312 558-6420. His e-mail address is
D. Obenberger and Associates are available for consultation,
representation, and defense of adult-oriented businesses.