3. Child Pornography

Part: 
Three
Chapter: 
3

No clearer measure exists of the radical shift in the issues confronted by the Commission on Obscenity and Pornography in 1970 and those facing this one than the problem of child pornography. In its description of "the industries" producing sexually explicit material the 1970 Commission nowhere mentioned or alluded to child pornography,[387] and its Traffic and Distribution Panel reported that "the taboo against pedophilia... has remained almost inviolate" even in the hardest of "hard-core" materials.[388] The recommendations of the 1970 Commission included repeal of all laws restraining distribution of sexually explicit materials to children; no exception was stated for materials depicting children engaged in sexual conduct.[389]

This Commission, by contrast, has devoted a very substantial proportion of its time and energy to examining the extent and nature of child pornography. Indeed, one set of the Commission's hearings was devoted almost entirely to the problem, while extensive oral and written testimony on the subject was received throughout the year. No aspect of the pornography industry has more occupied the attention of Congress and the general public during the past decade, and this Commission has made a wide range of recommendations for further legislative and public action. The very novelty of child pornography as a matter for public concern, however, requires at least a general overview of the rise of the "kiddie porn" industry, the nature of and the rationale for the governmental response to it, the effects on the children involved, and the contours of the industry's surviving components. That overview must begin with attention to what "child pornography" by definition is and what it is not.

Drawings of children engaged in sexual intercourse with adults date at least from ancient Greece,[390] and a graphic written description of child sexual abuse was to be found in seventeenth century France.[391] Yet although these portrayals or accounts might be deemed "obscene," and although they deeply offend modern sensibilities regarding the rearing and protection of children, they are not "child pornography" in the specific legal and clinical sense that term has acquired over the past fifteen years. As defined by the United States Supreme Court in the 1982 decision, New York v Ferber, the category of "child pornography" is "limited to works that visually depict sexual conduct by children below a specified age."[392] It is clear from the Court's language, and in all statutory and scholarly definitions of the term, that "child pornography" is only appropriate as a description of material depicting real children.[393]

The basis for these limitations is evident from the very nature of the outrage child pornography engenders-anger over the sexual abuse of children used in its production. While concern over "pornography" generally has centered on the impact of sexually explicit materials on the audience, "child pornography" has been defined, and attacked, in terms of its effects on the children who appear in it. Thus, as the Court found in Ferber, the category of "child pornography" is both broader and narrower than that of "obscenity." Broader in that it includes materials which are not "patently offensive," which do not appeal to the "prurient interest of the average individual," and which show children in sexual conduct even as an incidental part of the work (rather than "taken as a whole"),[394] Narrower, however, in that written materials are wholly excluded, as are visual materials which do not show actual children engaged in sexual conduct. Thus a rewrite of Lolita which included graphic descriptions of sexual activity with a young girl could never be "child pornography," nor could a fully explicit film of the novel which starred an adult actress playing the part of the young girl. Such a film which used a minor actress, however, could be "child pornography" even if not "patently offensive" by prevailing community standards, and (although this is less clear) even if it possessed serious artistic, literary, scientific or educational value.[395] In the context of "child pornography," alone among all the issues considered by the Commission, the definition of "obscenity" proclaimed in Miller v. California[396] and its progeny is wholly irrelevant. Indeed, the advent of "kiddie porn" in the years after Miller provides vivid illustration of the inadequacy of the concept of "obscenity" for protecting the interests of performers in sexually explicit material.[397]

The irrelevance of Miller to child pornography is loaded with some historic ironies, for it was later in the very year of that decision, 1973, that the first child pornography ring-involving some fourteen adults using boys under age thirteen for sex and production of pornographic materials-was brought to public view.[398] In the four years that followed police and reporters uncovered a wide range of activities involving the sexual exploitation of children, much of it involving child pornography.[399] Early in 1976 two employees of a large Los Angeles corporation publishing sexually explicit magazines were convicted of pandering for hiring a fourteen-year-old girl to engage in numerous acts of photographed sexual intercourse for publication in the company's magazines.[400] Later in that year the Los Angeles Police Department established a special Sexually Exploited Child Unit to combat child pornography and prostitution,[401] and in the spring of 1977 a string of investigative articles in the Chicago Tribune, Time and other major publications helped prompt a full Congressional investigation of the problem.[402]

What Congress discovered in its hearings-which involved one Senate and two House subcommittees over ten dates and four cities from May to September of 1977[403]-was summarized by the Senate Judiciary Committee in its report:

 

Child pornography and child prostitution have become highly organized, multi-million dollar industries that operate on a nationwide scale.... [404]

 

According to evidence at the hearings, those industries were producing some 264 different commercial magazines each month showing children nude or engaged in sexual conduct,[405] and the founder of the Los Angeles Sexually Exploited Child Unit reported that "We have 30,000 sexually exploited children in that city."[406] One producer and distributor was reported to have made five to seven million dollars in his own child-pornography business,[407] while other witnesses before Congress described the kidnapping of small children by pornographers,[408] and even their sale by parents.[409]

Child pornography had, in short, become a part of the commercial mainstream of pornography by 1977, sold "over the counter" and in considerable quantities. While a substantial amount of such material was of foreign origin,[410] much of it was made using American children. This wholly unanticipated by-product of the "pornography boom" prompted an angry legislative response from Congress and nearly all state legislatures-a response that in itself seems to have reshaped completely the nature of the child-pornography industry.

The governmental battle against sexual exploitation of children has been an ongoing, evolutionary one, marked by an extraordinary degree of consensus among legislators on both the federal and state levels. Detailed analysis of the wide array of statutes which have resulted from this shared concern is beyond the scope of this report. Nevertheless, a general review of applicable federal statutes, along with attention to significant features of current states, is a crucial backdrop to the Commission's recommendations, and, more importantly to understanding the substantial changes in the child-pornography industry since 1977.

Notes

  1. Report of the Commission on Obscenity and Pornography 7-23 (1970).
  2. Id., p. 139.
  3. Id., pp. 57-67.
  4. See, Photographic vase drawings in K. J. Dover, Greek Homosexuality (1978).
  5. See, description of P. Aries, Centuries of Childhood, pp. 100-102 (1962) (diary of Heroard, physician to Henri IV, who set down graphic details of sexual "play" with the child Louis XIII).
  6. 458 U.S. 474, 746 (1982). The Court also required that the "category of'sexual conduct' proscribed must also be suitable limited and described;' id., and must not include mere "nudity." Id., p. 765 n. 18. The New York statutes in question, Penal Law 263.15, was found to fit these requirements even though it included "lewd exhibition of the genitals" in its definition of proscribed sexual conduct. Id.. p. 773.
  7. The Ferber Court began its analysis of "child pornography" by noting the judgment of legislators and clinicians that "the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child;" a judgment the Court found "easily passes muster under the First Amendment:" Id., p. 758. Ferber thus rests squarely on the assumption that the materials in question are limited to those in the production of which actual children have been used.
  8. Id., p. 764.
  9. Thus the Court found that "a work which, taken as a whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography:' Compare, id, pp. 774-775 (O'Connor, J., concurring) (no defense based on "serious value" should be allowed) with id., pp. 775-777 (Brennan, I., concurring in the judgment) (such a defense required by First Amendment).
  10. 413 U.S. 15 (1973).
  11. For the full discussion of the problem of the use of adult performers in commercial pornography, See, Chapter 17.
  12. S. O'Brien, Child pornography, p. 60 (1983) (arrests by Los Angeles police). In August of 1973 the sexually sadistic murder of twenty-seven young boys by Dean Corll was uncovered, while several other call-boy rings were also exposed that year.
  13. See R. Lloyd, For Money or Love: Boy Prostitution in America (1977); C. Linedecker, Children in Chains 212-242 (1981).
  14. People v Fixler, 128 Cal. Rptr. 363, 56 Cal. App. 3d 321 (2d Dist. 1976).
  15. Sexual Exploitation of Children, Hrgs. Before the Subcomm. on the judiciary, U.S. House, 95th Cong., 1st Sess. 63 (1977) (statement of Investigator Lloyd Martin, Los Angeles Police Dep't) (hearings hereinafter referred to as "Subcommittee on Crime Hearings").
  16. For a reprint of the most influential articles See, Subcommittee on Crime Hearings, supra note 401, pp. 422-443.
  17. Subcommittee on Crime Hearings, supra note 401; Sexual Exploitation of Children, Hrgs. Before the Subcomm. on Select Education, Comm. on Education and Labor, U.S. House, 95th Cong., 1st Sess. (1977) (hereinafter "Select Education Subcommittee Hearings"); (Protection of Children Against Sexual Exploitation, Hrgs. Before the Subcomm. to Investigate Juvenile Delinquency, Comm. on the judiciary, U.S. Senate, 95th Cong., 1st Sess. (1977) (hereinafter "1977 Senate Hearings").
  18. S. Rep. No. 438, 95th Cong., 1st Sess. 5 (1977).
  19. Subcommittee on Crime Hearings, supra note 402, p. 43 (testimony of Dr. Judianne Denses-Gerber, Presl, Odyssey Institute).
  20. Id., p. 59 (testimony of Lloyd Martin).
  21. Id., p. 117 (statement of Michael Sneed, reporter, Chicago Tribune).
  22. Select Education Subcommittee Hearings, supra note 403, p. 116. (statement of Robin Lloyd).
  23. Id., pp. 42-43 (testimony of Lloyd Martin).
  24. For an excellent overview of the production of child pornography in the Netherlands, Denmark and other northern European countries-as well as the repackaging for shipment to the United States of material originally produced in America -- see, Child Pornography and Pedophilia, Hrgs. Before the Perm. Subcommittee on Investigations, Comm. on Governmental Affairs, U. S. Senate, 98th Cong., 2d Sess; Part 1 (1984) (especially testimony of Kenneth J. Herrmann, Jr., and Michael Jupp, and Toby Tyler, id., pp. 322-37); and Child Pornography and Pedophilia, Hrg. Before the Perm. Comm. on Investigations, Comm. on Governmental Affairs, U.S. Senate, 99th Cong., 1st Sess., Part 2 (1985) (especially testimony of Elliott Abrams, et al., members of federal interagency group which traveled to Denmark, The Netherlands, and Sweden to discuss problem of child pornography with government officials) (hearing hereinafter referred to as "1985 Hearings").