TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 110 - SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN
HEAD
Sec. 2251. Sexual exploitation of children
STATUTE
(a) Any person who employs, uses, persuades, induces, entices, or
coerces any minor to engage in, or who has a minor assist any other
person to engage in, or who transports any minor in or affecting
interstate or foreign commerce, or in any Territory or Possession
of the United States, with the intent that such minor engage in,
any sexually explicit conduct for the purpose of producing any
visual depiction of such conduct or for the purpose of transmitting
a live visual depiction of such conduct, shall be punished as
provided under subsection (e), if such person knows or has reason
to know that such visual depiction will be transported or
transmitted using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce or
mailed, if that visual depiction was produced or transmitted using
materials that have been mailed, shipped, or transported in or
affecting interstate or foreign commerce by any means, including by
computer, or if such visual depiction has actually been transported
or transmitted using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce or
mailed.
(b) Any parent, legal guardian, or person having custody or
control of a minor who knowingly permits such minor to engage in,
or to assist any other person to engage in, sexually explicit
conduct for the purpose of producing any visual depiction of such
conduct or for the purpose of transmitting a live visual depiction
of such conduct shall be punished as provided under subsection (e)
of this section, if such parent, legal guardian, or person knows or
has reason to know that such visual depiction will be transported
or transmitted using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce or
mailed, if that visual depiction was produced or transmitted using
materials that have been mailed, shipped, or transported in or
affecting interstate or foreign commerce by any means, including by
computer, or if such visual depiction has actually been transported
or transmitted using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce or
mailed.
(c)(1) Any person who, in a circumstance described in paragraph
(2), employs, uses, persuades, induces, entices, or coerces any
minor to engage in, or who has a minor assist any other person to
engage in, any sexually explicit conduct outside of the United
States, its territories or possessions, for the purpose of
producing any visual depiction of such conduct, shall be punished
as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that -
(A) the person intends such visual depiction to be transported
to the United States, its territories or possessions, by any
means, including by using any means or facility of interstate or
foreign commerce or mail; or
(B) the person transports such visual depiction to the United
States, its territories or possessions, by any means, including
by using any means or facility of interstate or foreign commerce
or mail.
(d)(1) Any person who, in a circumstance described in paragraph
(2), knowingly makes, prints, or publishes, or causes to be made,
printed, or published, any notice or advertisement seeking or
offering -
(A) to receive, exchange, buy, produce, display, distribute, or
reproduce, any visual depiction, if the production of such visual
depiction involves the use of a minor engaging in sexually
explicit conduct and such visual depiction is of such conduct; or
(B) participation in any act of sexually explicit conduct by or
with any minor for the purpose of producing a visual depiction of
such conduct;
shall be punished as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that -
(A) such person knows or has reason to know that such notice or
advertisement will be transported using any means or facility of
interstate or foreign commerce or in or affecting interstate or
foreign commerce by any means including by computer or mailed; or
(B) such notice or advertisement is transported using any means
or facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce by any means including by computer
or mailed.
(e) Any individual who violates, or attempts or conspires to
violate, this section shall be fined under this title and
imprisoned not less than 15 years nor more than 30 years, but if
such person has one prior conviction under this chapter, section
1591, chapter 71, chapter 109A, or chapter 117, or under section
920 of title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to aggravated
sexual abuse, sexual abuse, abusive sexual contact involving a
minor or ward, or sex trafficking of children, or the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, such person shall be fined
under this title and imprisoned for not less than 25 years nor more
than 50 years, but if such person has 2 or more prior convictions
under this chapter, chapter 71, chapter 109A, or chapter 117, or
under section 920 of title 10 (article 120 of the Uniform Code of
Military Justice), or under the laws of any State relating to the
sexual exploitation of children, such person shall be fined under
this title and imprisoned not less than 35 years nor more than
life. Any organization that violates, or attempts or conspires to
violate, this section shall be fined under this title. Whoever, in
the course of an offense under this section, engages in conduct
that results in the death of a person, shall be punished by death
or imprisoned for not less than 30 years or for life.
SOURCE
(Added Pub. L. 95-225, Sec. 2(a), Feb. 6, 1978, 92 Stat. 7; amended
Pub. L. 98-292, Sec. 3, May 21, 1984, 98 Stat. 204; Pub. L. 99-500,
Sec. 101(b) [title VII, Sec. 704(a)], Oct. 18, 1986, 100 Stat. 1783-
39, 1783-75, and Pub. L. 99-591, Sec. 101(b) [title VII, Sec.
704(a)], Oct. 30, 1986, 100 Stat. 3341-39, 3341-75; Pub. L. 99-628,
Secs. 2, 3, Nov. 7, 1986, 100 Stat. 3510; Pub. L. 100-690, title
VII, Sec. 7511(a), Nov. 18, 1988, 102 Stat. 4485; Pub. L. 101-647,
title XXXV, Sec. 3563, Nov. 29, 1990, 104 Stat. 4928; Pub. L. 103-
322, title VI, Sec. 60011, title XVI, Sec. 160001(b)(2), (c), (e),
title XXXIII, Sec. 330016(1)(S)-(U), Sept. 13, 1994, 108 Stat.
1973, 2037, 2148; Pub. L. 104-208, div. A, title I, Sec. 101(a)
[title I, Sec. 121[4]], Sept. 30, 1996, 110 Stat. 3009, 3009-26,
3009-30; Pub. L. 105-314, title II, Sec. 201, Oct. 30, 1998, 112
Stat. 2977; Pub. L. 108-21, title I, Sec. 103(a)(1)(A), (b)(1)(A),
title V, Secs. 506, 507, Apr. 30, 2003, 117 Stat. 652, 653, 683;
Pub. L. 109-248, title II, Sec. 206(b)(1), July 27, 2006, 120 Stat.
614; Pub. L. 110-358, title I, Sec. 103(a)(1), (b), Oct. 8, 2008,
122 Stat. 4002, 4003; Pub. L. 110-401, title III, Sec. 301, Oct.
13, 2008, 122 Stat. 4242.)
CODIFICATION
Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
AMENDMENTS
2008 - Subsecs. (a), (b). Pub. L. 110-401 inserted "or for the
purpose of transmitting a live visual depiction of such conduct"
after "for the purpose of producing any visual depiction of such
conduct" and "or transmitted" after "will be transported", after
"was produced", and after "has actually been transported".
Pub. L. 110-358, Sec. 103(a)(1)(A), (B), (b), inserted "using any
means or facility of interstate or foreign commerce or" after "be
transported" and after "been transported" and substituted "in or
affecting interstate" for "in interstate" wherever appearing.
Subsec. (c)(2). Pub. L. 110-358, Sec. 103(a)(1)(C), substituted
"using any means or facility of interstate or foreign commerce" for
"computer" in subpars. (A) and (B).
Subsec. (d)(2)(A). Pub. L. 110-358, Sec. 103(a)(1)(A), (b),
inserted "using any means or facility of interstate or foreign
commerce or" after "be transported" and substituted "in or
affecting interstate" for "in interstate".
Subsec. (d)(2)(B). Pub. L. 110-358, Sec. 103(a)(1)(D), (b),
inserted "using any means or facility of interstate or foreign
commerce or" after "is transported" and substituted "in or
affecting interstate" for "in interstate".
2006 - Subsec. (e). Pub. L. 109-248 inserted "section 1591,"
after "one prior conviction under this chapter," and substituted
"aggravated sexual abuse, sexual abuse, abusive sexual contact
involving a minor or ward, or sex trafficking of children, or the
production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography" for "the sexual
exploitation of children" and "not less than 30 years or for life"
for "any term of years or for life".
2003 - Subsecs. (a), (b). Pub. L. 108-21, Sec. 506(1),
substituted "subsection (e)" for "subsection (d)".
Subsec. (c). Pub. L. 108-21, Sec. 506(3), added subsec. (c).
Former subsec. (c) redesignated (d).
Subsec. (c)(1). Pub. L. 108-21, Sec. 506(1), substituted
"subsection (e)" for "subsection (d)" in concluding provisions.
Subsec. (d). Pub. L. 108-21, Sec. 506(2), redesignated subsec.
(c) as (d). Former subsec. (d) redesignated (e).
Pub. L. 108-21, Sec. 103(a)(1)(A), (b)(1)(A), substituted "and
imprisoned not less than 15" for "or imprisoned not less than 10",
"30 years" for "20 years", "25 years" for "15 years", "more than 50
years" for "more than 30 years", and "35 years nor more than life"
for "30 years nor more than life", and struck out "and both,"
before "but if such person has one".
Subsec. (e). Pub. L. 108-21, Sec. 507, inserted "chapter 71,"
before "chapter 109A," in two places and "or under section 920 of
title 10 (article 120 of the Uniform Code of Military Justice),"
before "or under the laws" in two places.
Pub. L. 108-21, Sec. 506(2), redesignated subsec. (d) as (e).
1998 - Subsec. (a). Pub. L. 105-314, Sec. 201(a), inserted "if
that visual depiction was produced using materials that have been
mailed, shipped, or transported in interstate or foreign commerce
by any means, including by computer," before "or if".
Subsec. (b). Pub. L. 105-314, Sec. 201(b), inserted ", if that
visual depiction was produced using materials that have been
mailed, shipped, or transported in interstate or foreign commerce
by any means, including by computer," before "or if".
Subsec. (d). Pub. L. 105-314, Sec. 201(c), substituted ", chapter
109A, or chapter 117" for "or chapter 109A" in two places.
1996 - Subsec. (d). Pub. L. 104-208 amended subsec. (d)
generally. Prior to amendment, subsec. (d) read as follows: "Any
individual who violates, or attempts or conspires to violate, this
section shall be fined under this title, imprisoned not more than
10 years, or both, but, if such individual has a prior conviction
under this chapter or chapter 109A, such individual shall be fined
under this title, imprisoned not less than five years nor more than
15 years, or both. Any organization which violates, or attempts or
conspires to violate, this section shall be fined under this title.
Whoever, in the course of an offense under this section, engages in
conduct that results in the death of a person, shall be punished by
death or imprisoned for any term of years or for life."
1994 - Pub. L. 103-322, Sec. 330016(1)(S)-(U), which directed the
amendment of this section by substituting "under this title" for
"not more than $100,000", "not more than $200,000", and "not more
than $250,000", could not be executed because those phrases did not
appear in text subsequent to amendment of subsec. (d) by Pub. L.
103-322, Sec. 160001(b)(2). See below.
Subsec. (d). Pub. L. 103-322, Sec. 160001(e), inserted ", or
attempts or conspires to violate," after "violates" in two places.
Pub. L. 103-322, Sec. 160001(c), substituted "conviction under
this chapter or chapter 109A" for "conviction under this section".
Pub. L. 103-322, Sec. 160001(b)(2)(C), substituted "fined under
this title" for "fined not more than $250,000" in penultimate
sentence.
Pub. L. 103-322, Sec. 160001(b)(2)(B), substituted "fined under
this title," for "fined not more than $200,000, or" before
"imprisoned not less than five years".
Pub. L. 103-322, Sec. 160001(b)(2)(A), substituted "fined under
this title," for "fined not more than $100,000, or" before
"imprisoned not more than 10 years".
Pub. L. 103-322, Sec. 60011, inserted at end "Whoever, in the
course of an offense under this section, engages in conduct that
results in the death of a person, shall be punished by death or
imprisoned for any term of years or for life."
1990 - Subsec. (a). Pub. L. 101-647 substituted "person to engage
in," for "person to engage in,,".
1988 - Subsec. (c)(2)(A), (B). Pub. L. 100-690 inserted "by any
means including by computer" after "commerce".
1986 - Subsec. (a). Pub. L. 99-628, Secs. 2(1), (3), inserted ",
or who transports any minor in interstate or foreign commerce, or
in any Territory or Possession of the United States, with the
intent that such minor engage in," after "assist any other person
to engage in," and substituted "subsection (d)" for "subsection
(c)".
Subsec. (b). Pub. L. 99-628, Sec. 2(2), substituted "subsection
(d)" for "subsection (c)".
Subsecs. (c), (d). Pub. L. 99-628, Sec. 2(3), (4), added subsec.
(c) and redesignated former subsec. (c) as (d).
Pub. L. 99-500 and Pub. L. 99-591 substituted "five years" for
"two years" in subsec. (c).
1984 - Subsecs. (a), (b). Pub. L. 98-292, Sec. 3(1), (2),
substituted "visual depiction" for "visual or print medium" in
three places and substituted "of" for "depicting" before "such
conduct".
Subsec. (c). Pub. L. 98-292, Sec. 3(3)-(6), substituted
"individual" for "person" in three places, "$100,000" for
"$10,000", and "$200,000" for "$15,000", and inserted "Any
organization which violates this section shall be fined not more
than $250,000."
SHORT TITLE OF 2006 AMENDMENT
Pub. L. 109-248, title VII, Sec. 707(a), July 27, 2006, 120 Stat.
650, provided that: "This section [amending section 2255 of this
title] may be cited as 'Masha's Law'."
SHORT TITLE OF 1996 AMENDMENT
Section 101(a) [title I, Sec. 121] of div. A of Pub. L. 104-208
provided in part that: "This section [enacting section 2252A of
this title, amending this section, sections 2241, 2243, 2252, and
2256 of this title, and section 2000aa of Title 42, The Public
Health and Welfare, and enacting provisions set out as notes under
this section and section 2241 of this title] may be cited as the
'Child Pornography Prevention Act of 1996'."
SHORT TITLE OF 1990 AMENDMENT
Section 301(a) of title III of Pub. L. 101-647 provided that:
"This title [amending sections 1460, 2243, 2252, and 2257 of this
title and enacting provisions set out as notes under section 2257
of this title and section 994 of Title 28, Judiciary and Judicial
Procedure] may be cited as the 'Child Protection Restoration and
Penalties Enhancement Act of 1990'."
SHORT TITLE OF 1988 AMENDMENT
Section 7501 of title VII of Pub. L. 100-690 provided that: "This
subtitle [subtitle N (Secs. 7501-7526) of title VII of Pub. L. 100-
690, enacting sections 1460, 1466 to 1469, 2251A, and 2257 of this
title, amending this section, sections 1465, 1961, 2252 to 2254,
2256, and 2516 of this title, section 1305 of Title 19, Customs
Duties, and section 223 of Title 47, Telegraphs, Telephones, and
Radiotelegraphs, and enacting provisions set out as a note under
section 2257 of this title] may be cited as the 'Child Protection
and Obscenity Enforcement Act of 1988'."
SHORT TITLE OF 1986 AMENDMENTS
Section 1 of Pub. L. 99-628 provided that: "This Act [enacting
sections 2421 to 2423 of this title, amending this section and
sections 2255 and 2424 of this title, and repealing former sections
2421 to 2423 of this title] may be cited as the 'Child Sexual Abuse
and Pornography Act of 1986'."
Section 101(b) [title VII, Sec. 701] of Pub. L. 99-500 and Pub.
L. 99-591 provided that: "This title [enacting section 2255 of this
title, amending this section and section 2252 of this title,
redesignating former section 2255 of this title as 2256, and
enacting provisions set out as notes under this section] may be
cited as the 'Child Abuse Victims' Rights Act of 1986'."
SHORT TITLE OF 1984 AMENDMENT
Section 1 of Pub. L. 98-292 provided: "That this Act [enacting
sections 2253 and 2254 of this title, amending this section and
sections 2252, 2255, and 2516 of this title, and enacting
provisions set out as notes under this section and section 522 of
Title 28, Judiciary and Judicial Procedure] may be cited as the
'Child Protection Act of 1984'."
SHORT TITLE
Section 1 of Pub. L. 95-225 provided: "That this Act [enacting
this chapter and amending section 2423 of this title] may be cited
as the 'Protection of Children Against Sexual Exploitation Act of
1977'."
SEVERABILITY
Pub. L. 110-401, title V, Sec. 503, Oct. 13, 2008, 122 Stat.
4252, provided that: "If any provision of this title [enacting
sections 2258A to 2258E of this title, amending section 2702 of
this title, and repealing section 13032 of Title 42, The Public
Health and Welfare] or amendment made by this title is held to be
unconstitutional, the remainder of the provisions of this title or
amendments made by this title -
"(1) shall remain in full force and effect; and
"(2) shall not be affected by the holding."
Section 101(a) [title I, Sec. 121[8]] of Pub. L. 104-208 provided
that: "If any provision of this Act [probably means section 121 of
Pub. L. 104-208, div. A, title I, Sec. 101(a), see Short Title of
1996 Amendment note above], including any provision or section of
the definition of the term child pornography, an amendment made by
this Act, or the application of such provision or amendment to any
person or circumstance is held to be unconstitutional, the
remainder of this Act, including any other provision or section of
the definition of the term child pornography, the amendments made
by this Act, and the application of such to any other person or
circumstance shall not be affected thereby."
Section 4 of Pub. L. 95-225 provided that: "If any provision of
this Act [see Short Title note set out above] or the application
thereof to any person or circumstances is held invalid, the
remainder of the Act and the application of the provision to other
persons not similarly situated or to other circumstances shall not
be affected thereby."
CONGRESSIONAL FINDINGS
Pub. L. 110-358, title I, Sec. 102, Oct. 8, 2008, 122 Stat. 4001,
provided that: "Congress finds the following:
"(1) Child pornography is estimated to be a multibillion dollar
industry of global proportions, facilitated by the growth of the
Internet.
"(2) Data has shown that 83 percent of child pornography
possessors had images of children younger than 12 years old, 39
percent had images of children younger than 6 years old, and 19
percent had images of children younger than 3 years old.
"(3) Child pornography is a permanent record of a child's abuse
and the distribution of child pornography images revictimizes the
child each time the image is viewed.
"(4) Child pornography is readily available through virtually
every Internet technology, including Web sites, email, instant
messaging, Internet Relay Chat, newsgroups, bulletin boards, and
peer-to-peer.
"(5) The technological ease, lack of expense, and anonymity in
obtaining and distributing child pornography over the Internet
has resulted in an explosion in the multijurisdictional
distribution of child pornography.
"(6) The Internet is well recognized as a method of
distributing goods and services across State lines.
"(7) The transmission of child pornography using the Internet
constitutes transportation in interstate commerce."
Pub. L. 109-248, title V, Sec. 501, July 27, 2006, 120 Stat. 623,
provided that: "Congress makes the following findings:
"(1) The effect of the intrastate production, transportation,
distribution, receipt, advertising, and possession of child
pornography on the interstate market in child pornography:
"(A) The illegal production, transportation, distribution,
receipt, advertising and possession of child pornography, as
defined in section 2256(8) of title 18, United States Code, as
well as the transfer of custody of children for the production
of child pornography, is harmful to the physiological,
emotional, and mental health of the children depicted in child
pornography and has a substantial and detrimental effect on
society as a whole.
"(B) A substantial interstate market in child pornography
exists, including not only a multimillion dollar industry, but
also a nationwide network of individuals openly advertising
their desire to exploit children and to traffic in child
pornography. Many of these individuals distribute child
pornography with the expectation of receiving other child
pornography in return.
"(C) The interstate market in child pornography is carried on
to a substantial extent through the mails and other
instrumentalities of interstate and foreign commerce, such as
the Internet. The advent of the Internet has greatly increased
the ease of transporting, distributing, receiving, and
advertising child pornography in interstate commerce. The
advent of digital cameras and digital video cameras, as well as
videotape cameras, has greatly increased the ease of producing
child pornography. The advent of inexpensive computer equipment
with the capacity to store large numbers of digital images of
child pornography has greatly increased the ease of possessing
child pornography. Taken together, these technological advances
have had the unfortunate result of greatly increasing the
interstate market in child pornography.
"(D) Intrastate incidents of production, transportation,
distribution, receipt, advertising, and possession of child
pornography, as well as the transfer of custody of children for
the production of child pornography, have a substantial and
direct effect upon interstate commerce because:
"(i) Some persons engaged in the production,
transportation, distribution, receipt, advertising, and
possession of child pornography conduct such activities
entirely within the boundaries of one state. These persons
are unlikely to be content with the amount of child
pornography they produce, transport, distribute, receive,
advertise, or possess. These persons are therefore likely to
enter the interstate market in child pornography in search of
additional child pornography, thereby stimulating demand in
the interstate market in child pornography.
"(ii) When the persons described in subparagraph (D)(i)
enter the interstate market in search of additional child
pornography, they are likely to distribute the child
pornography they already produce, transport, distribute,
receive, advertise, or possess to persons who will distribute
additional child pornography to them, thereby stimulating
supply in the interstate market in child pornography.
"(iii) Much of the child pornography that supplies the
interstate market in child pornography is produced entirely
within the boundaries of one state, is not traceable, and
enters the interstate market surreptitiously. This child
pornography supports demand in the interstate market in child
pornography and is essential to its existence.
"(E) Prohibiting the intrastate production, transportation,
distribution, receipt, advertising, and possession of child
pornography, as well as the intrastate transfer of custody of
children for the production of child pornography, will cause
some persons engaged in such intrastate activities to cease all
such activities, thereby reducing both supply and demand in the
interstate market for child pornography.
"(F) Federal control of the intrastate incidents of the
production, transportation, distribution, receipt, advertising,
and possession of child pornography, as well as the intrastate
transfer of children for the production of child pornography,
is essential to the effective control of the interstate market
in child pornography.
"(2) The importance of protecting children from repeat
exploitation in child pornography:
"(A) The vast majority of child pornography prosecutions
today involve images contained on computer hard drives,
computer disks, and related media.
"(B) Child pornography is not entitled to protection under
the First Amendment and thus may be prohibited.
"(C) The government has a compelling State interest in
protecting children from those who sexually exploit them, and
this interest extends to stamping out the vice of child
pornography at all levels in the distribution chain.
"(D) Every instance of viewing images of child pornography
represents a renewed violation of the privacy of the victims
and a repetition of their abuse.
"(E) Child pornography constitutes prima facie contraband,
and as such should not be distributed to, or copied by, child
pornography defendants or their attorneys.
"(F) It is imperative to prohibit the reproduction of child
pornography in criminal cases so as to avoid repeated violation
and abuse of victims, so long as the government makes
reasonable accommodations for the inspection, viewing, and
examination of such material for the purposes of mounting a
criminal defense."
Pub. L. 108-21, title V, Sec. 501, Apr. 30, 2003, 117 Stat. 676,
provided that: "Congress finds the following:
"(1) Obscenity and child pornography are not entitled to
protection under the First Amendment under Miller v. California,
413 U.S. 15 (1973) (obscenity), or New York v. Ferber, 458 U.S.
747 (1982) (child pornography) and thus may be prohibited.
"(2) The Government has a compelling state interest in
protecting children from those who sexually exploit them,
including both child molesters and child pornographers. 'The
prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance,' New
York v. Ferber, 458 U.S. 747, 757 (1982), and this interest
extends to stamping out the vice of child pornography at all
levels in the distribution chain. Osborne v. Ohio, 495 U.S. 103,
110 (1990).
"(3) The Government thus has a compelling interest in ensuring
that the criminal prohibitions against child pornography remain
enforceable and effective. 'The most expeditious if not the only
practical method of law enforcement may be to dry up the market
for this material by imposing severe criminal penalties on
persons selling, advertising, or otherwise promoting the
product.' Ferber, 458 U.S. at 760.
"(4) In 1982, when the Supreme Court decided Ferber, the
technology did not exist to -
"(A) computer generate depictions of children that are
indistinguishable from depictions of real children;
"(B) use parts of images of real children to create a
composite image that is unidentifiable as a particular child
and in a way that prevents even an expert from concluding that
parts of images of real children were used; or
"(C) disguise pictures of real children being abused by
making the image look computer-generated.
"(5) Evidence submitted to the Congress, including from the
National Center for Missing and Exploited Children, demonstrates
that technology already exists to disguise depictions of real
children to make them unidentifiable and to make depictions of
real children appear computer-generated. The technology will soon
exist, if it does not already, to computer generate realistic
images of children.
"(6) The vast majority of child pornography prosecutions today
involve images contained on computer hard drives, computer disks,
and/or related media.
"(7) There is no substantial evidence that any of the child
pornography images being trafficked today were made other than by
the abuse of real children. Nevertheless, technological advances
since Ferber have led many criminal defendants to suggest that
the images of child pornography they possess are not those of
real children, insisting that the government prove beyond a
reasonable doubt that the images are not computer-generated. Such
challenges increased significantly after the decision in Ashcroft
v. Free Speech Coalition, 535 U.S. 234 (2002).
"(8) Child pornography circulating on the Internet has, by
definition, been digitally uploaded or scanned into computers and
has been transferred over the Internet, often in different file
formats, from trafficker to trafficker. An image seized from a
collector of child pornography is rarely a first-generation
product, and the retransmission of images can alter the image so
as to make it difficult for even an expert conclusively to opine
that a particular image depicts a real child. If the original
image has been scanned from a paper version into a digital
format, this task can be even harder since proper forensic
assessment may depend on the quality of the image scanned and the
tools used to scan it.
"(9) The impact of the Free Speech Coalition decision on the
Government's ability to prosecute child pornography offenders is
already evident. The Ninth Circuit has seen a significant adverse
effect on prosecutions since the 1999 Ninth Circuit Court of
Appeals decision in Free Speech Coalition. After that decision,
prosecutions generally have been brought in the Ninth Circuit
only in the most clear-cut cases in which the government can
specifically identify the child in the depiction or otherwise
identify the origin of the image. This is a fraction of
meritorious child pornography cases. The National Center for
Missing and Exploited Children testified that, in light of the
Supreme Court's affirmation of the Ninth Circuit decision,
prosecutors in various parts of the country have expressed
concern about the continued viability of previously indicted
cases as well as declined potentially meritorious prosecutions.
"(10) Since the Supreme Court's decision in Free Speech
Coalition, defendants in child pornography cases have almost
universally raised the contention that the images in question
could be virtual, thereby requiring the government, in nearly
every child pornography prosecution, to find proof that the child
is real. Some of these defense efforts have already been
successful. In addition, the number of prosecutions being brought
has been significantly and adversely affected as the resources
required to be dedicated to each child pornography case now are
significantly higher than ever before.
"(11) Leading experts agree that, to the extent that the
technology exists to computer generate realistic images of child
pornography, the cost in terms of time, money, and expertise is -
and for the foreseeable future will remain - prohibitively
expensive. As a result, for the foreseeable future, it will be
more cost-effective to produce child pornography using real
children. It will not, however, be difficult or expensive to use
readily available technology to disguise those depictions of real
children to make them unidentifiable or to make them appear
computer-generated.
"(12) Child pornography results from the abuse of real children
by sex offenders; the production of child pornography is a
byproduct of, and not the primary reason for, the sexual abuse of
children. There is no evidence that the future development of
easy and inexpensive means of computer generating realistic
images of children would stop or even reduce the sexual abuse of
real children or the practice of visually recording that abuse.
"(13) In the absence of congressional action, the difficulties
in enforcing the child pornography laws will continue to grow
increasingly worse. The mere prospect that the technology exists
to create composite or computer-generated depictions that are
indistinguishable from depictions of real children will allow
defendants who possess images of real children to escape
prosecution; for it threatens to create a reasonable doubt in
every case of computer images even when a real child was abused.
This threatens to render child pornography laws that protect real
children unenforceable. Moreover, imposing an additional
requirement that the Government prove beyond a reasonable doubt
that the defendant knew that the image was in fact a real child -
as some courts have done - threatens to result in the de facto
legalization of the possession, receipt, and distribution of
child pornography for all except the original producers of the
material.
"(14) To avoid this grave threat to the Government's
unquestioned compelling interest in effective enforcement of the
child pornography laws that protect real children, a statute must
be adopted that prohibits a narrowly-defined subcategory of
images.
"(15) The Supreme Court's 1982 Ferber v. New York decision
holding that child pornography was not protected drove child
pornography off the shelves of adult bookstores. Congressional
action is necessary now to ensure that open and notorious
trafficking in such materials does not reappear, and even
increase, on the Internet."
Section 101(a) [title I, Sec. 121[1]] of Pub. L. 104-208 provided
that: "Congress finds that -
"(1) the use of children in the production of sexually explicit
material, including photographs, films, videos, computer images,
and other visual depictions, is a form of sexual abuse which can
result in physical or psychological harm, or both, to the
children involved;
"(2) where children are used in its production, child
pornography permanently records the victim's abuse, and its
continued existence causes the child victims of sexual abuse
continuing harm by haunting those children in future years;
"(3) child pornography is often used as part of a method of
seducing other children into sexual activity; a child who is
reluctant to engage in sexual activity with an adult, or to pose
for sexually explicit photographs, can sometimes be convinced by
viewing depictions of other children 'having fun' participating
in such activity;
"(4) child pornography is often used by pedophiles and child
sexual abusers to stimulate and whet their own sexual appetites,
and as a model for sexual acting out with children; such use of
child pornography can desensitize the viewer to the pathology of
sexual abuse or exploitation of children, so that it can become
acceptable to and even preferred by the viewer;
"(5) new photographic and computer imagining [sic] technologies
make it possible to produce by electronic, mechanical, or other
means, visual depictions of what appear to be children engaging
in sexually explicit conduct that are virtually indistinguishable
to the unsuspecting viewer from unretouched photographic images
of actual children engaging in sexually explicit conduct;
"(6) computers and computer imaging technology can be used to -
"(A) alter sexually explicit photographs, films, and videos
in such a way as to make it virtually impossible for
unsuspecting viewers to identify individuals, or to determine
if the offending material was produced using children;
"(B) produce visual depictions of child sexual activity
designed to satisfy the preferences of individual child
molesters, pedophiles, and pornography collectors; and
"(C) alter innocent pictures of children to create visual
depictions of those children engaging in sexual conduct;
"(7) the creation or distribution of child pornography which
includes an image of a recognizable minor invades the child's
privacy and reputational interests, since images that are created
showing a child's face or other identifiable feature on a body
engaging in sexually explicit conduct can haunt the minor for
years to come;
"(8) the effect of visual depictions of child sexual activity
on a child molester or pedophile using that material to stimulate
or whet his own sexual appetites, or on a child where the
material is being used as a means of seducing or breaking down
the child's inhibitions to sexual abuse or exploitation, is the
same whether the child pornography consists of photographic
depictions of actual children or visual depictions produced
wholly or in part by electronic, mechanical, or other means,
including by computer, which are virtually indistinguishable to
the unsuspecting viewer from photographic images of actual
children;
"(9) the danger to children who are seduced and molested with
the aid of child sex pictures is just as great when the child
pornographer or child molester uses visual depictions of child
sexual activity produced wholly or in part by electronic,
mechanical, or other means, including by computer, as when the
material consists of unretouched photographic images of actual
children engaging in sexually explicit conduct;
"(10)(A) the existence of and traffic in child pornographic
images creates the potential for many types of harm in the
community and presents a clear and present danger to all
children; and
"(B) it inflames the desires of child molesters, pedophiles,
and child pornographers who prey on children, thereby increasing
the creation and distribution of child pornography and the sexual
abuse and exploitation of actual children who are victimized as a
result of the existence and use of these materials;
"(11)(A) the sexualization and eroticization of minors through
any form of child pornographic images has a deleterious effect on
all children by encouraging a societal perception of children as
sexual objects and leading to further sexual abuse and
exploitation of them; and
"(B) this sexualization of minors creates an unwholesome
environment which affects the psychological, mental and emotional
development of children and undermines the efforts of parents and
families to encourage the sound mental, moral and emotional
development of children;
"(12) prohibiting the possession and viewing of child
pornography will encourage the possessors of such material to rid
themselves of or destroy the material, thereby helping to protect
the victims of child pornography and to eliminate the market for
the sexual exploitative use of children; and
"(13) the elimination of child pornography and the protection
of children from sexual exploitation provide a compelling
governmental interest for prohibiting the production,
distribution, possession, sale, or viewing of visual depictions
of children engaging in sexually explicit conduct, including both
photographic images of actual children engaging in such conduct
and depictions produced by computer or other means which are
virtually indistinguishable to the unsuspecting viewer from
photographic images of actual children engaging in such conduct."
Section 101(b) [title VII, Sec. 702] of Pub. L. 99-500 and Pub.
L. 99-591 provided that: "The Congress finds that -
"(1) child exploitation has become a multi-million dollar
industry, infiltrated and operated by elements of organized
crime, and by a nationwide network of individuals openly
advertising their desire to exploit children;
"(2) Congress has recognized the physiological, psychological,
and emotional harm caused by the production, distribution, and
display of child pornography by strengthening laws prescribing
such activity;
"(3) the Federal Government lacks sufficient enforcement tools
to combat concerted efforts to exploit children prescribed by
Federal law, and exploitation victims lack effective remedies
under Federal law; and
"(4) current rules of evidence, criminal procedure, and civil
procedure and other courtroom and investigative procedures
inhibit the participation of child victims as witnesses and
damage their credibility when they do testify, impairing the
prosecution of child exploitation offenses."
Section 2 of Pub. L. 98-292 provided that: "The Congress finds
that -
"(1) child pornography has developed into a highly organized,
multi-million-dollar industry which operates on a nationwide
scale;
"(2) thousands of children including large numbers of runaway
and homeless youth are exploited in the production and
distribution of pornographic materials; and
"(3) the use of children as subjects of pornographic materials
is harmful to the physiological, emotional, and mental health of
the individual child and to society."
REPORT BY ATTORNEY GENERAL
Section 101(b) [title VII, Sec. 705] of Pub. L. 99-500 and Pub.
L. 99-591 required Attorney General, within one year after Oct. 18,
1986, to submit a report to Congress detailing possible changes in
Federal Rules of Evidence, Federal Rules of Criminal Procedure,
Federal Rules of Civil Procedure, and other Federal courtroom,
prosecutorial, and investigative procedures which would facilitate
the participation of child witnesses in cases involving child abuse
and sexual exploitation.
ANNUAL REPORT TO CONGRESS
Attorney General to report annually to Congress on prosecutions,
convictions, and forfeitures under this chapter, see section 9 of
Pub. L. 98-292, set out as a note under section 522 of Title 28,
Judiciary and Judicial Procedure.
Transactional Records Access
Clearinghouse, Syracuse University
Copyright 2010