Federal Statutes

Part: 
Three
Chapter: 
3

Federal Statutes.

Comparison of the two major Congressional acts designed to fight sexual exploitation, approved six years apart, provides perhaps the best evidence of how a changing child pornography industry has taxed legislative ingenuity:[411]

  1. The Protection of Children from Sexual Exploitation Act of 1977 (the "1977 Act").[412]
    The immediate response of Congress to the evidence gathered in its 1977 investigations was this law, approved February 6, 1978.

     

    It categorically prohibited the production of any "sexually explicit" material using a child under age sixteen, if such material is destined for, or has already travelled in interstate commerce.[413] The definition of the phrase "sexually explicit" included any conduct involving sexual intercourse of any variety, bestiality, masturbation, sadomasochistic abuse, or "lewd exhibition of the genitals or pubic area."[414] Stern penalties (10 years imprisonment and/or $10,000 fine) were imposed for violating these provisions,[415] and were made applicable, as well, to parents or other custodians who knowingly permit a child to participate in such production.[416]

    With regard to the traffic in child pornography already produced, the 1977 Act took a somewhat different approach. With the evidence gathered at the hearings centering overwhelmingly on the commercial character of such traffic, Congress understandably directed its prohibitions against the transportation, shipping, mailing, or receipt of child pornography in interstate commerce "for the purpose of sale or distribution for sale."[417] Thus bartering or simply giving away child pornography was not prohibited even if conducted through the mail. Further, constitutional concerns led Congress to restrict the application of these provisions to material depicting children engaged in "sexually explicit" activity, which was also "obscene" under the Miller test.[418] As under the production provisions, the age limit for children protected was set at sixteen, and the penalties imposed were identical.[419]

     

  2. The Child Protection Act of 1984 (the "1984 Act").[420]
    Strong as it appeared to be on its face, the 1977 Act was soon found by federal law enforcement officials to be of only limited practical value. The production of child pornography is so clandestine in character that from 1978 to 1984 only one person had been convicted under that portion of the 1977 Act.[421] As for distribution of the material, the traffic in child pornography went underground after 1978, and commercial magazines such as those shown to Congress in 1977 were no longer available "over-the-counter" in pornography outlets. Rather, as a Postal official told Congress in 1982, the "bulk of child pornography traffic is noncommercial."[422] This meant, as a Federal Bureau of Investigation witness told the same hearing, that federal enforcement of the 1977 Act was "seriously impaired" by its "for sale" requirements.[423] Further, the limitation of the trafficking provision of the 1977 Act to "obscene" child pornography placed substantial obstacles in the path of prosecutors.[424]

     

    Confronted by this evidence, and reinforced by the Ferber decision removing any doubt about the necessity of "obscenity" limitations, Congress in May, 1984, approved a broad revision of the 1977 Act. The Child Protection Act of 1984 removed the requirement that interstate trafficking, receipt, or mailing of child pornography be for the purpose of "sale" to be criminal.[425] Further, it wholly eliminated the "obscenity" restrictions of the 1977 Act,[426] and raised the age limit of protection to eighteen.[427] Provisions raising the amount of potential fines were included,[428] along with new sections authorizing criminal and civil forfeiture actions against violators.[429] The definition of "sexually explicit" material was adjusted slightly: the first word in "lewd exhibition of the genitals or pubic area" was changed to "lascivious," and "sadistic or masochistic abuse" was substituted for "sado-masochistic abuse."[430] Written materials, finally, were clearly excluded from the law's reach in this area: only "visual depictions" of children are criminally actionable."[431]

    The result of these revisions was a dramatic increase in federal prosecutions. In the first nine months after passage of the 1984 Act virtually the same number of people were indicted for federal child pornography offenses as had been indicted during the previous six years.[432] The production provisions, however, continued to produce few indictments, in part because of the extraordinary difficulties of investigation and proof, and in part, perhaps, because the more easily used trafficking provisions often may be invoked against suspected producers instead. It appears, in any case, that the 1977 Act effectively halted the bulk of the commercial child pornography industry, while the 1984 revisions have enabled federal officials to move against the noncommercial, clandestine mutation of that industry.

Notes

  1. For a more complete discussion and comparison of the relevant federal statutes, see, Laken, The Federal Battle Against Child Sexual Exploitation; Proposals for Reform, Harv. Women's L. J. (1986).
  2. P. L. 95-225, 92 Stat. 7 (1978), codified, p. 18 U.S.C.S. SS2251-2253 (1979).
  3. 18 U.S.C.S. S2251(a) (1979).
  4. 18 U.S.C.S. 52253 (1979).
  5. 18 U.S.C.S. S2251(c) (1979).
  6. 18 U.S.C.S. S2251(b) (1979).
  7. 18 U.S.C.S. 52252 (1979).
  8. Id.
  9. Id.
  10. P. L. 98-299, 98 Stat. 204 (1984), codified at 18 U.S.C.S SS2251-2255 (1985 Supp.). The constitutionality of this act has recently been sustained by two different federal court. United States v. Tolczeki, 614 F. Supp. 1424 (N.D. Ohio 1985).
  11. 1985 Hearing, supra note 410, p. 104 (statement of Victoria Toensing, Dep'y Asst. Attorney General).
  12. Exploited and Missing Children, Hrg. Before the Subcomm. on juvenile justice, Comm. on the Judiciary, 97th Cong., 2nd Sess. 47 (statement of Charles P. Nelson).
  13. Id. at 39 (statement of Dana E. Caro).
  14. Child Pornography, Hrg. Before the Subcomm. on juvenile Justice, Senate Comm. on the judiciary, 97th Cong., 2nd Sess. (1982) (statement of Robert Pitler, Bureau Chief, Appeals Bureau, District Attorney's Office for New York County).
  15. 18 U.S.C.S. S2252(a) (1979).
  16. Id.
  17. 18 U.S.C.S. 52255 (1) (1979).
  18. 18 U.S.C.S. SS2251, 2252 (1979).
  19. 18 U.S.C.S. SS2253, 2254 (1979).
  20. 18 U.S.C.S. 52255 (1979).
  21. 18 U.S.C.S. SS2251, 2252 (1979).
  22. 1985 Hearing, supra note 410, at 104 (Victoria Toensing). Statitstics provided to the Commission by the Department of Justice indicate that 183 of the 255 indictments under federal child pornography laws from 1978 to February 27, 1986, were obtained after passage of the 1984 Act on May 21, 1984.