CITE

    18 USC Sec. 1466A                                           01/05/2009

EXPCITE

    TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
    PART I - CRIMES
    CHAPTER 71 - OBSCENITY

HEAD

    Sec. 1466A. Obscene visual representations of the sexual abuse of
      children

STATUTE

      (a) In General. - Any person who, in a circumstance described in
    subsection (d), knowingly produces, distributes, receives, or
    possesses with intent to distribute, a visual depiction of any
    kind, including a drawing, cartoon, sculpture, or painting, that -
        (1)(A) depicts a minor engaging in sexually explicit conduct;
      and
        (B) is obscene; or
        (2)(A) depicts an image that is, or appears to be, of a minor
      engaging in graphic bestiality, sadistic or masochistic abuse, or
      sexual intercourse, including genital-genital, oral-genital, anal-
      genital, or oral-anal, whether between persons of the same or
      opposite sex; and
        (B) lacks serious literary, artistic, political, or scientific
      value;
    or attempts or conspires to do so, shall be subject to the
    penalties provided in section 2252A(b)(1), including the penalties
    provided for cases involving a prior conviction.
      (b) Additional Offenses. - Any person who, in a circumstance
    described in subsection (d), knowingly possesses a visual depiction
    of any kind, including a drawing, cartoon, sculpture, or painting,
    that -
        (1)(A) depicts a minor engaging in sexually explicit conduct;
      and
        (B) is obscene; or
        (2)(A) depicts an image that is, or appears to be, of a minor
      engaging in graphic bestiality, sadistic or masochistic abuse, or
      sexual intercourse, including genital-genital, oral-genital, anal-
      genital, or oral-anal, whether between persons of the same or
      opposite sex; and
        (B) lacks serious literary, artistic, political, or scientific
      value;
    or attempts or conspires to do so, shall be subject to the
    penalties provided in section 2252A(b)(2), including the penalties
    provided for cases involving a prior conviction.
      (c) Nonrequired Element of Offense. - It is not a required
    element of any offense under this section that the minor depicted
    actually exist.
      (d) Circumstances. - The circumstance referred to in subsections
    (a) and (b) is that -
        (1) any communication involved in or made in furtherance of the
      offense is communicated or transported by the mail, or in
      interstate or foreign commerce by any means, including by
      computer, or any means or instrumentality of interstate or
      foreign commerce is otherwise used in committing or in
      furtherance of the commission of the offense;
        (2) any communication involved in or made in furtherance of the
      offense contemplates the transmission or transportation of a
      visual depiction by the mail, or in interstate or foreign
      commerce by any means, including by computer;
        (3) any person travels or is transported in interstate or
      foreign commerce in the course of the commission or in
      furtherance of the commission of the offense;
        (4) any visual depiction involved in the offense has been
      mailed, or has been shipped or transported in interstate or
      foreign commerce by any means, including by computer, or was
      produced using materials that have been mailed, or that have been
      shipped or transported in interstate or foreign commerce by any
      means, including by computer; or
        (5) the offense is committed in the special maritime and
      territorial jurisdiction of the United States or in any territory
      or possession of the United States.
      (e) Affirmative Defense. - It shall be an affirmative defense to
    a charge of violating subsection (b) that the defendant -
        (1) possessed less than 3 such visual depictions; and
        (2) promptly and in good faith, and without retaining or
      allowing any person, other than a law enforcement agency, to
      access any such visual depiction -
          (A) took reasonable steps to destroy each such visual
        depiction; or
          (B) reported the matter to a law enforcement agency and
        afforded that agency access to each such visual depiction.
      (f) Definitions. - For purposes of this section -
        (1) the term "visual depiction" includes undeveloped film and
      videotape, and data stored on a computer disk or by electronic
      means which is capable of conversion into a visual image, and
      also includes any photograph, film, video, picture, digital image
      or picture, computer image or picture, or computer generated
      image or picture, whether made or produced by electronic,
      mechanical, or other means;
        (2) the term "sexually explicit conduct" has the meaning given
      the term in section 2256(2)(A) or 2256(2)(B); and
        (3) the term "graphic", when used with respect to a depiction
      of sexually explicit conduct, means that a viewer can observe any
      part of the genitals or pubic area of any depicted person or
      animal during any part of the time that the sexually explicit
      conduct is being depicted.

SOURCE

    (Added Pub. L. 108-21, title V, Sec. 504(a), Apr. 30, 2003, 117
    Stat. 680.)

SENTENCING GUIDELINES

      Pub. L. 108-21, title V, Sec. 504(c), Apr. 30, 2003, 117 Stat.
    682, provided that:
      "(1) Category. - Except as provided in paragraph (2), the
    applicable category of offense to be used in determining the
    sentencing range referred to in section 3553(a)(4) of title 18,
    United States Code, with respect to any person convicted under
    section 1466A of such title, shall be the category of offenses
    described in section 2G2.2 of the Sentencing Guidelines.
      "(2) Ranges. - The Sentencing Commission may promulgate
    guidelines specifically governing offenses under section 1466A of
    title 18, United States Code, if such guidelines do not result in
    sentencing ranges that are lower than those that would have applied
    under paragraph (1)."
                    REPORT TO CONGRESSIONAL COMMITTEES
      Pub. L. 108-21, title V, Sec. 513(b), Apr. 30, 2003, 117 Stat.
    685, provided that:
      "(1) In general. - Not later than 9 months after the date of
    enactment of this Act [Apr. 30, 2003], and every 2 years
    thereafter, the Attorney General shall report to the Chairpersons
    and Ranking Members of the Committees on the Judiciary of the
    Senate and the House of Representatives on the Federal enforcement
    actions under chapter 110 or section 1466A of title 18, United
    States Code.
      "(2) Contents. - The report required under paragraph (1) shall
    include -
        "(A) an evaluation of the prosecutions brought under chapter
      110 or section 1466A of title 18, United States Code;
        "(B) an outcome-based measurement of performance; and
        "(C) an analysis of the technology being used by the child
      pornography industry."