RECOMMENDATION 81

Part: 
Three
Chapter: 
3

Local agencies should allocate victims of crimes funds to provide monies for psychiatric evaluation and treatment and medical treatment of victims and their families.[682]

Sexual exploitation through the production of child pornography leaves a tremendous cost in its wake. This cost is in economic terms as well as human emotional devastation. Many children suffer physical and emotional damage as well as the effects of sexually transmitted diseases.

An effective response to cases of suspected child sexual exploitation requires a sensitive and comprehensive medical examination of the child that will:

  1. Accurately diagnose physical evidence of recent or past sexual assault, and
  2. Provide substantial documentation for protective or prosecutorial action.

Evidence of child sexual abuse is more difficult to obtain than evidence of other types of physical abuse which results in external bruising, lacerations, scarring or severe malnutrition. Obtaining any medical evidence of sexual abuse which results from the production of child pornography requires special expertise and special sensitivity to the needs of the child. Such evidence is only a component of the evaluation and interpretation of findings which must be used with caution and understanding.

Sexually exploited children often must also undergo extensive psychotherapy to restore their mental health. Therapy is costly and may often be outside the limits of ordinary medical insurance. Monies available in the state victims of crimes fund should be used to defray the cost of this evaluation and treatment. The distribution of monies from these funds also recognizes the real injury which these children have suffered.

Notes

  1. Senator Arlen Specter has introduced the Pornography Victims Protection Act. This act would allow an injured child the opportunity to recover damages from producers and distributors. This legislation would expand judicial remedies available to a victimized child and his or her family. Counselors and therapists must be qualified to assist the child and the family. This legislation would permit victims of child pornography and adults who are coerced, intimidated, or fraudulently induced into posing or performing in pornography to institute federal civil actions against the producers and distributors. A victim could recover treble damages and the costs of the action, as well as seek an injunction to prevent further dissemination of the pornography.

    The legislation provides:

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That this Act may be cited as the "Pornography Victims Protection Act of 1985."

    Sec. 2 Section 2251 of title 18, United States Code, is amended-

    1. in subsection (a), by striking out "subsection (c)" and inserting in lieu thereof "subsection (d)" and by inserting before the period at the end thereof the following: "or if such person knows or has reason to know that the minor was transported in interstate or foreign commerce for the purpose of producing any such visual depiction of such conduct":
    2. in subsection (b), by striking out "subsection (c)" and inserting in lieu thereof "subsection (d)" and by inserting before the period at the end thereof the following: "or if such person knows or has reason to know that the minor was transported in interstate or foreign commerce for the purpose of producing any such visual depiction of such conduct":
    3. by inserting immediately after subsection (b) the following:

      "(c) (1) Any person who coerces, intimidates, or fraudulently induces an individual, 18 years or older to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct shall be punished as provided under subsection (d), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if such visual depiction has actually been transported in interstate or foreign commerce or mailed, or if such person knows or has reason to know that the individual 18 years or older was transported in interstate or foreign commerce for the purpose of producing any such visual depiction of such conduct.

      "(2) Proof of one or more of the following facts or conditions shall not, without more, negate a finding of coercion under this subsection:

      "(A) that the person is or has been a prostitute;

      "(B) that the person is connected by blood or marriage to anyone involved in or related to the making of the pornography;

      "(C) that the person has previously had, or been thought to have had, sexual relations with anyone, including anyone involved in or related to the making of the pornography;

      "(D) that the person has previously posed for sexually explicit pictures for or with anyone, including anyone involved in or related to the making of the pornography at issue;

      "(E) that anyone else, including a spouse or other relative, has given permission on the person's behalf;

      "(F) that the person actually consented to a use of the performance that is changed into pornography:

      "(G) that the person knew that the purpose of the acts or events in question was to make pornography;

      "(H) that the person signed a contract to produce pornography; or

      "(I) that the person was paid or otherwise compensated";

    4. in subsection (c), by striking out "(c)" and inserting in lieu thereof "(d)" and
    5. by amending the heading to read as follows:

      S2251. "Sexual exploitation".

    Sec. 3 (a) Section 2252 (a) (1) of title 18, United States Code, is amended by adding at the end thereof the following:

    "(C) the producing of such visual depiction involved the use of an adult who was coerced, intimidated, or fraudulently induced to engage in sexually explicit conduct and the person knows or has reason to know that the adult was coerced, intimidated, or fraudulently induced; and

    "(D) such visual depiction depicts such conduct; or".

    (b) Section 2252 (a) (2) is amended by –

    (1) striking out "and" and the semicolon in clause (A) and inserting in lieu thereof "or the production of visual depiction involved the use of an adult who was coerced, intimidated, or fraudulently induced to engage in sexually explicit conduct and the person knows or has reason to know that the adult was coerced, intimidated, or fraudulently induced; and

    (c) the heading for section 2252 is amended to read as follows:

    S2252. "CERTAIN ACTIVITIES RELATING TO MATERIAL INVOLVING SEXUAL EXPLOITATION."

    Sec. 4. (a) Chapter 110 of part 1 of Title 18. United States Code,is amended by redesignating section 2252 as section 2261.

    (b) Chapter 110 of part J of title 18, United States Code, is amended by inserting after section 2254 the following:

    S2252. CIVIL REMEDIES.

    "(a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 2251 or 2252 by issuing appropriate orders, including –

    "(1) ordering any person to divest himself of any interest, direct or indirect, in any legal or business entity;

    "(2) imposing reasonable restrictions on the future activities or investments of any person including prohibiting such person from engaging in the same type of legal or business endeavor; or

    "(3) ordering dissolution or reorganization of any legal or business entity after making due provision for the rights of innocent persons.

    "(b) The Attorney General or any person threatened with loss or damage by reason of a violation of section 2251 or 2252 may institute proceedings under section (a) and, in the event that the party bringing suit prevails, such party shall recover the cost of the suit, including a reasonable attorney's fee. Pending final determination, the court may at any time enter such restraining orders or prohibitions, or take such other actions, including the acceptance of satisfactory performance bonds, as it shall deem proper. For purposes of this section, a violation of section 2251 or 2252 shall be determined by a preponderance of the evidence.

    "(c) Any victim of a violation of section 2251 or 2252 who suffers physical injury, emotional distress, or property damage as a result of such violation may sue to recover damages in any appropriate United States district court and shall recover threefold the damages such person sustains as a result of such violation and the cost of the suit, including a reasonable attorney's fee. For purposes of this section, a violation of section 2251 or 2252 shall be determined by a preponderance of the evidence.

    "(d) A final judgment or decree rendered in favor of the United States in any criminal proceeding brought by the United States under this chapter shall estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding.

    "(e) Nothing in this section shall be construed to authorize any order restraining the exhibition, distribution or dissemination of any visual material without a full adversary proceeding and a final judicial determination that such material contains a visual depiction of sexually explicit conduct, as defined by section 2262 of this chapter, engaged in by a minor or by a person who was coerced, intimidated, or fraudulently induced to engage in such sexually explicit conduct.

    S2256. CIVIL PENALTIES.

    "(a) Any person found to violate section 2252 or 2252 by preponderance of the evidence shall be liable to the United States Government for a civil penalty of $100,000 and the forfeiture of any interest in property described in section 2254. The Attorney General may bring an action for recovery of any such civil penalty or forfeiture against any such person. If the Attorney General prevails he may also recover the cost of the suit, including a reasonable attorney's fee.

    "(b) If the identity of any victim of an offense provided in section 2251 or 2252 is established prior to an award of a civil penalty made to the United States under this section, the victim shall be entitled to the award. If there is more than one victim, the court shall apportion the award among the victims on an equitable basis after considering the harm suffered by each such victim.

    S2257. VENUE AND PROCESS.

    "(a) Any civil action or proceeding brought under this chapter may be instituted in the district court of the United States for an district in which the defendant resides, is found, has an agent, or transacts his affairs.

    "(b) In any action under section 2252 or 2256 of this chapter in any district court of the United States in which it is shown that the ends of justice require that other parties residing in any other district be brought before the court, the court may cause such parties to be summoned, and process for that purpose may be served in any judicial district of the United States by the marshall of such judicial district.

    "(c) In any civil or criminal action or proceeding under this chapter in the district court of the United States for any judicial district, a subpoena issued by such court to compel the attendance of witnesses may be served in any other judicial district except that no subpoena shall be issued for service upon any individual who resides in another district at the place more than one hundred miles from the place at which such court is held without approval given by a judge of such court upon a showing of good cause.

    "(d) All other process in any action or proceeding under this chapter may be served on any person in any judicial district in which such person resides, is found, has an agent, or transacts his affairs.

    S2258. EXPEDITION OF ACTIONS.

    "In any civil action instituted under this chapter by the United States in any district court of the United States, the Attorney General may file with the clerk of such court a certificate stating that in his opinion the case is of general public importance. A copy of that certificate shall be furnished immediately by such clerk to the chief judge or in his absence to the presiding district judge of the district in which such action is pending. Upon receipt of such copy, such judge shall designate immediately a judge of that district to hear and determine the action. The judge designated to hear and determine the action shall assign the action for hearing as soon as practicable and hold hearings and make a determination as expeditiously as possible.

    S2259. EVIDENCE.

    "In any proceeding ancillary to or in any civil action instituted under this chapter the proceedings may be opened or closed to the public at the discretion of the court after consideration of the rights of affected persons.

    S2260. LIMITATIONS.

    "A civil action under section 2255 or 2256 of this chapter must be brought within six years from the date the violation is committed. In any such action brought by or on behalf of a person who was a minor at the date the violation was committed, the running of such six-year period shall be deemed to have been tolled during the period of such person's minority."

    Sec. 5(a) The section analysis for chapter 110 of part 1 of Title 18, United States Code, is amended to read as follows:

    "CHAPTER 110-SEXUAL EXPLOITATION "See:
    "2251. Sexual Exploitation.
    "2252. Certain activities relating to material sexual exploitation.
    "2253. Criminal forfeiture.
    "2254. Civil forfeiture.
    "2255. Civil remedies.
    "2256. Civil penalties.
    "2257. Expedition of actions.
    "2259. Evidence.
    "2260. Limitations.
    "2261. Definitions for chapter.
    "2262. Severability.

    (b) The chapter analysis for part 1 of title 18, United States Code, is amended by striking the item relating to chapter 110 and inserting in lieu thereof the following:

    "110. Sexual Exploitation ...................... . ........ . . . . . ............. 2251".

    Sec. 6 Chapter 110 of title 18, United States Code, is amended by inserting after section 2261 the following:

    "If the provisions of any part of this Act or the amendments made by this Act, or the application thereof, to any person or circumstances is held invalid, the provisions of the other parts of this Act or the amendments made by this Act and their applications to other persons or circumstances shall not be affected:"