RECOMMENDATION 37

Part: 
Three
Chapter: 
3

Congress should enact a statute requiring the producers, retailers or distributors of sexually explicit visual depictions to maintain records containing consent forms and proof of performers' ages

Pornographers use minors as performers in films and other visual depictions.[458] The consumer demand for youthful performers has also created a class of pornography referred to as pseudo child pornography.[459] The growth of pseudo child pornography has made it increasingly difficult for law enforcement officers to ascertain whether an individual in a film or other visual depiction is a minor. Minors deserve special protection from the risks inherent in the production of pornographic materials.[460] The performers may be subjected to threats and coercion, provided with controlled substances or exposed to a variety of sexually transmitted diseases.[461] The Child Protection Act of 1984[462] is designed to prohibit employing, using, persuading, inducing, enticing, or coercing any minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.[483]

This proposed legislation should afford protection to minors through every level of the pornography industry. The recordkeeping obligation should be imposed on wholesalers, retailers, distributors, producers and anyone engaged in the sale or trade of sexually explicit material as described by the Child Protection Act.

The concern to be addressed through this legislation is the safety and well-being of children. The current law contains gaps which allow the exploitation of minors to continue. Legislation should be drafted to close the gaps and afford children full protection in every phase of the production and distribution of sexually explicit materials.

Producers would be required to obtain proof of the age of the performer and record the same on a signed release form if the performer engages in any sexual act which would be in violation of the Child Protection Act.[464]

Despite the umbrella protection provided by the Child Protection Act of 1984, loopholes remain that permit the continued exploitation of children. For example, experts and law enforcement officers have found it difficult to extend this protection because in many instances, ascertaining the real ages of adolescent performers is impossible. By viewing a visual depiction, how does one decide if the performer is fourteen or eighteen, seventeen or twenty-one? The growth of the category of pseudo child pornography has further confused the issue.

The above legislation will assist officials in assuring the safety and well being of children.

The recommended legislation would require producers to obtain release forms from each performer with proof of age.[465] The forms would be filed at a specified location listed in the opening or closing footage of a film, the inside cover of the magazine or standard locations in or on other material containing visual depictions.[466]

The name, official title and location of the responsible person or corporate agent supervising such records would also be listed to avoid use of corporate shields. The release forms should be available for inspection by any duly authorized law enforcement officer upon demand as a regulatory function for the limited purposes of determining consent and proof of age.[467] The information contained in these records should not be used as evidence of obscenity or related offenses in a grand jury proceeding or by a petit jury or trier of fact, but should only be used for prosecution of this offense. This exception from use in evidence is necessary to secure compliance by the largest number of persons and avoid Fifth Amendment problems.

A producer should be required to maintain these records for a minimum period of five years.[468] Failure to comply with any of these requirements would be punishable as a felony. This legislation would not only protect minors from abuse, but it would also place the burden of ensuring this protection was implemented squarely on the producers of the materials. The proposed legislation would serve a record-keeping purpose comparable to that found in environmental and similar statutes.[469] Performers in pornography face more risks than just sexual abuse. A decision by young performers to appear in pornographic materials has serious implications for his or her future personal life and career prospects. The existence of the material and its intermittent resurfacing may destroy employment prospects and threaten family stability.[470]

Notes

  1. Pseudo child pornography or "teasers" involve women allegedly over the age of eighteen who are "presented in such a way as to make them appear to be children or youths. Models used in such publications are chosen for their youthful appearance (e.g., in females, slim build and small breasts); and are presented with various accoutrements designed to enhance the illusion of immaturity (e.g., hair in ponytails or ringlets, toys, teddy bears etc.).
  2. 'Pseudo child pornography' is of concern since it may appeal to the same tastes and may evoke responses similar or identical to those elicited by true child pornography. However, it is distinct from, and is not 'genuine' child pornography in the sense that it is older adolescents or adults who are displayed in these sexually explicit depictions. It is not individual children who have been directly exploited in the making of such materials. Committee on Sexual Offences Against Children and Youth, 2 Sexual Offences Against Children, 1192 (1984). [hereinafter cited as Sexual Offences Against Children].
  3. See, New York v. Ferber, 458 U.S., (1982), p. 758.
  4. See, The discussion of performers, infra.
  5. 18 U.S.C. SS 2251-2252 (1985).
  6. Id.
  7. Producers may fulfill the proof of age requirement through obtaining a driver's license, birth certificate or other verifiable and acceptable form of age documentation.
  8. The release forms should also include the stage names of the performers as well as any other aliases the performer may use, fingerprints to avoid forgery or fraudulent certification and the last known address and telephone number for the purpose of verification.
  9. "I think consent is a very important part of freedom ... we all want to increase volunteerism and decrease lack of consent whether that be by models or purchasers of magazines." New York Hearing, Vol. II, Alan Dershowitz, p. 312.
  10. This inspection requirement would be similar to the inspection provision included in section 3007 of the Resource Conservation Recovery Act of 1976, as amended in that search warrant would not be necessary for routine examination of records.
  11. The five-year requirement would commence the date the film was released or the magazine was distributed.
  12. Examples of similar recordkeeping legislation and the penalties are: The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) which provides, "The Administrator may prescribe regulations requiring producers to maintain such records with respect to their operations and the pesticides and devices produced as he determines are necessary for the effective enforcement of this Act." 7 U.S.C. S1361 (3) FIFRA also gives the administrator of the Environmental Protection Agency the authority to inspect the premises to ensure compliance. "(b) Inspection-For the purposes of enforcing the provision of this Act, any producer, distributor, carrier, dealer, or any other person who sells or offers for sale, delivers or offers for delivery any pesticide or device subject to this Act, shall, upon request of any officer or employee of the Environmental Protection Agency or of any State or political subdivision, duly designated by the Administrator, furnish or permit such person at all reasonable times to have access to, and to copy: (1) all records showing the delivery, movement, or holding of such pesticide or device, including the quantity, the date of shipment and receipt, and the name of the consignor and consignee; or (2) in the event of the inability of any person to produce records containing such information, all other records and information relating to such delivery, movement, or holding of the pesticide or device:" 7 U.S.C. S 1361; Failure to comply with the provision may result in civil or criminal penalties. "Any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who knowingly violates any provision of this Act shall be guilty of a misdemeanor and shall on conviction be fined not more than $25,000, or imprisoned for not more than one year, or both:" 7 U.S.C. S136n. The Resource Conservation and Recovery Act of 1976 requires hazardous waste generators, transporters and owners and operators of treatment, storage and disposal facilities to maintain adequate business records. See, 42 U.S.C. SS3002, 3003, 3004. If the records are not maintained, the owner, operator, generator or transporter of hazardous waste may be subject to civil and criminal penalties. "Any person who" (3) knowingly omits material information or makes any false material statement or representation in any application, label, manifest, record, report, permit or other document filed, maintained, or used for purposes of compliance with regulations promulgated by the Administrator under this subtitle: shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed two years (five years in the case of a violation of paragraph (1) or (2), or both). If the conviction is for a violation committed after a first conviction of such person under this paragraph, shall be doubled with respect to both fine and imprisonment." 42 U.S.C. S3008.
  13. Los Angeles Hearing, Vol. II, Miki Garcia, pp. 118-20; Washington, D.C., Hearing, Vol. II, Tom, p. 50.