RECOMMENDATION 41

Part: 
Three
Chapter: 
3

Congress should amend 18 U.S.C. S2255 to define the term "Visual Depiction" and include undeveloped film in that definition.

The Child Protection Act prohibits the transportation of certain sexually explicit visual depictions. The predecessor to the present Act specifically defined visual depictions. The language of the current Act has been used successfully by defense attorneys to exclude undeveloped film that has been legally seized.[517] In an effort to curb the continued exploitation of children, it is necessary to define the term "visual depictions" to include images contained on rolls of undeveloped film, video tape and sketches, drawings or paintings of actual persons.[518] This amendment will afford United States Attorneys the opportunity to bring an indictment under the Child Protection Act for offenses depicted on film undeveloped while under the control of an offender.

The current statute creates a dilemma for law enforcement agents and prosecutors in the case of undeveloped film. If the indictment is brought while film is yet to be developed the depictions contained on the undeveloped film are not subject to prosecution. If the film is allowed to remain in the hands of the offender until developed it is virtually impossible to prevent the pictures from entering circulation which is the very harm sought to be eliminated. This amendment would end the dilemma and enable the prosecution of child pornography contained on undeveloped film possessed by the offender.

Notes

  1. See, Letter from Joyce A. Karlin to Henry E. Hudson (Dec. 20, 1985).
  2. Id.