(Sec. 4) Makes certain information identifying minors depicted in child pornography, on motion of the Government, except for good cause shown, inadmissible and subject to redaction from any otherwise admissible evidence in any prosecution of such an act. Increases penalties for violation of record-keeping requirements.
(Sec. 5) Modifies the definition of "minor" to provide that it shall not be construed to require proof of the actual identity of the person under age 18. Revises the definition of "child pornography" to include any visual depiction of sexually explicit conduct: (1) that is, or appears to be, of a minor actually engaging in bestiality, sadistic or masochistic abuse, or sexual intercourse, whether between persons of the same or opposite sex; and (2) that lacks serious literary, artistic, political, or scientific value; or (3) the production of which involves the use of an identifiable minor engaging in sexually explicit conduct. Amends the definition of "identifiable minor" to include a computer or computer generated image that is virtually indistinguishable from an actual minor. Defines "virtually indistinguishable" to mean that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor.
(Sec. 6) Revises the definition of "produces" to cover computer generated images or pictures. Increases penalties for violating prohibitions against sexual exploitation of children.
(Sec. 7) Amends the Victims of Child Abuse Act of 1990 to: (1) authorize disclosure to State officials by a law enforcement agency of a report of child pornography by an electronic communication service provider indicating a violation of State criminal law; and (2) authorize disclosure of child pornography by such a service provider to the National Center for Missing and Exploited Children.
(Sec. 9) Sets penalties for employing, using, persuading, inducing, enticing, or coercing a minor to engage in, or having a minor assist any other person to engage in, sexually explicit conduct outside of the United States for the purpose of producing any visual depiction of such conduct, intending that such depiction be transported to, or transporting it to, the United States.
(Sec. 10) Authorizes civil remedies for offenses relating to material constituting or containing child pornography.
(Sec. 11) Makes persons previously convicted of obscenity eligible for enhanced recidivist penalties for sexual child exploitation.
(Sec. 12) Directs the United States Sentencing Commission to review the Federal sentencing guidelines to ensure that penalties are adequate in cases that involve interstate travel with intent to engage in a sexual act with a juvenile.
(Sec. 13) Directs the Attorney General to: (1) appoint 25 additional trial attorneys to focus on the investigation and prosecution of Federal child pornography laws (authorizes appropriations); and (2) report to specified congressional officials on Federal enforcement actions regarding sexual exploitation of children, including an evaluation of prosecutions brought, an outcome-based measurement of performance, and an analysis of the technology being used by the child pornography industry.
Directs the Commission to review and amend sentencing guidelines and policy statements to ensure that such guidelines are adequate to deter and punish conduct involving a violation under this Act.
[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2520 Introduced in Senate (IS)]
107th CONGRESS
2d Session
S. 2520
To amend title 18, United States Code, with respect to the sexual
exploitation of children.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 15, (leislative day, May 9), 2002
Mr. Hatch (for himself, Mr. Leahy, Mr. Sessions, Mr. Hutchinson, Mr.
Brownback, Mr. Edwards, and Mr. DeWine) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 18, United States Code, with respect to the sexual
exploitation of children.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Prosecutorial Remedies and Tools
Against the Exploitation of Children Today Act of 2002''.
SEC. 2. CERTAIN ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR
CONTAINING CHILD PORNOGRAPHY.
Section 2252A of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by striking paragraph (3) and inserting the
following:
``(3) knowingly--
``(A) reproduces any child pornography for
distribution through the mails, or in interstate or
foreign commerce by any means, including by computer;
or
``(B) advertises, promotes, presents, describes,
distributes, or solicits through the mails, or in
interstate or foreign commerce by any means, including
by computer, any material in a manner that conveys the
impression that the material is, or contains, an
obscene visual depiction of a minor engaging in
sexually explicit conduct;'';
(B) in paragraph (4), by striking ``or'' at the
end;
(C) in paragraph (5), by striking the period at the
end and inserting ``; or''; and
(D) by adding at the end the following:
``(6) knowingly distributes, offers, sends, or provides to
a minor any visual depiction, including any photograph, film,
video, picture, or computer generated image or picture, whether
made or produced by electronic, mechanical, or other means, of
sexually explicit conduct where such visual depiction is, or
appears to be, of a minor engaging in sexually explicit
conduct--
``(A) that has been mailed, shipped, or transported
in interstate or foreign commerce by any means,
including by computer;
``(B) that was produced using materials that have
been mailed, shipped, or transported in interstate or
foreign commerce by any means, including by computer;
or
``(C) which distribution, offer, sending, or
provision is accomplished using the mails or by
transmitting or causing to be transmitted any wire
communication in interstate or foreign commerce,
including by computer,
for purposes of inducing or persuading such minor to
participate in any activity that is illegal.'';
(2) in subsection (b)(1), by striking ``(1), (2), (3), or
(4)'' and inserting ``(1), (2), (3), (4), or (6)''; and
(3) by striking subsection (c) and inserting the following:
``(c) It shall be an affirmative defense to a charge of violating
paragraph (1), (2), (3), (4), or (5) of subsection (a) that--
``(1)(A) the alleged child pornography was produced using
an actual person or persons engaging in sexually explicit
conduct; and
``(B) each such person was an adult at the time the
material was produced; or
``(2) the alleged child pornography was not produced using
any actual minor or minors.
No affirmative defense shall be available in any prosecution that
involves obscene child pornography or child pornography as described in
section 2256(8)(D). A defendant may not assert an affirmative defense
to a charge of violating paragraph (1), (2), (3), (4), or (5) of
subsection (a) unless, within the time provided for filing pretrial
motions or at such time prior to trial as the judge may direct, but in
no event later than 10 days before the commencement of the trial, the
defendant provides the court and the United States with notice of the
intent to assert such defense and the substance of any expert or other
specialized testimony or evidence upon which the defendant intends to
rely. If the defendant fails to comply with this subsection, the court
shall, absent a finding of extraordinary circumstances that prevented
timely compliance, prohibit the defendant from asserting a defense to a
charge of violating paragraph (1), (2), (3), (4), or (5) of subsection
(a) or presenting any evidence for which the defendant has failed to
provide proper and timely notice.''.
SEC. 3. ADMISSIBILITY OF EVIDENCE.
Section 2252A of title 18, United States Code, is amended by adding
at the end the following:
``(e) Admissibility of Evidence.--In any prosecution under this
chapter, the name, address, or other identifying information, other
than the age or approximate age, of any minor who is depicted in any
child pornography shall not be admissible and the jury shall be
instructed, upon request of the United States, that it can draw no
inference from the absence of such evidence in deciding whether the
child pornography depicts an actual minor .''.
SEC. 4. DEFINITIONS.
Section 2256 of title 18, United States Code, is amended--
(1) in paragraph (1), by inserting before the semicolon the
following: ``and shall not be construed to require proof of the
actual identity of the person'';
(2) in paragraph (8)--
(A) in subparagraph (B), by inserting ``is obscene
and'' before ``is'';
(B) in subparagraph (C), by striking ``or'' at the
end; and
(C) by striking subparagraph (D) and inserting the
following:
``(D) such visual depiction--
``(i) is of a minor, or an individual who
appears to be a minor, actually engaging in
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
``(ii) lacks serious literary, artistic,
political, or scientific value; or
``(E) the production of such visual depiction
involves the use of an identifiable minor engaging in
sexually explicit conduct; and''; and
(3) in paragraph (9)(A)(ii)--
(A) by striking ``(ii) who is'' and inserting the
following:
``(ii)(I) who is''; and
(B) by striking ``and'' at the end and inserting
the following: ``or
``(II) who is virtually indistinguishable
from an actual minor; and''.
SEC. 5. RECORDKEEPING REQUIREMENTS.
Section 2257 of title 18, United States Code, is amended--
(1) in subsection (d)(2), by striking ``of this section''
and inserting ``of this chapter or chapter 71,'';
(2) in subsection (h)(3), by inserting ``, computer
generated image or picture,'' after ``video tape''; and
(3) in subsection (i)--
(A) by striking ``not more than 2 years'' and
inserting ``not more than 5 years''; and
(B) by striking ``5 years'' and inserting ``10
years''.
SEC. 6. FEDERAL VICTIMS' PROTECTIONS AND RIGHTS.
Section 227(f)(1)(D) of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032(f)(1)(D)) is amended to read as follows:
``(D) where the report discloses a violation of
State criminal law to an appropriate official of that
State or subdivision of that State for the purpose of
enforcing such State law.''.
SEC. 7. CONTENTS DISCLOSURE OF STORED COMMUNICATIONS.
Section 2702 of title 18, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (5), by striking ``or'' at the
end;
(B) in paragraph (6)--
(i) in subparagraph (A)(ii), by inserting
``or'' at the end;
(ii) by striking subparagraph (B); and
(iii) by redesignating subparagraph (C) as
subparagraph (B);
(C) by redesignating paragraph (6) as paragraph
(7); and
(D) by inserting after paragraph (5) the following:
``(6) to the National Center for Missing and Exploited
Children, in connection with a report submitted under section
227 of the Victims of Child Abuse Act of 1990 (42 U.S.C.
13032); or''; and
(2) in subsection (c)--
(A) in paragraph (4), by striking ``or'' at the
end;
(B) by redesignating paragraph (5) as paragraph
(6); and
(C) by inserting after paragraph (4) the following:
``(5) to the National Center for Missing and Exploited
Children, in connection with a report submitted under section
227 of the Victims of Child Abuse Act of 1990 (42 U.S.C.
13032); or''.
SEC. 8. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR
DISTRIBUTION IN THE UNITED STATES.
Section 2251 of title 18, United States Code, is amended--
(1) by striking ``subsection (d)'' each place that term
appears and inserting ``subsection (e)'';
(2) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
(3) by inserting after subsection (b) the following:
``(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 computer or mail; or
``(B) the person transports such visual depiction to the
United States, its territories or possessions, by any means,
including by computer or mail.''.
SEC. 9. CIVIL REMEDIES.
Section 2252A of title 18, United States Code, as amended by this
Act, is amended by adding at the end the following:
``(f) Civil Remedies.--
``(1) In general.--Any person aggrieved by reason of the
conduct prohibited under subsection (a) or (b) may commence a
civil action for the relief set forth in paragraph (2).
``(2) Relief.--In any action commenced in accordance with
paragraph (1), the court may award appropriate relief,
including--
``(A) temporary, preliminary, or permanent
injunctive relief;
``(B) compensatory and punitive damages; and
``(C) the costs of the civil action and reasonable
fees for attorneys and expert witnesses.''.
SEC. 10. ENHANCED PENALTIES FOR RECIDIVISTS.
Sections 2251(d), 2252(b), and 2252A(b) of title 18, United States
Code, are amended by inserting ``chapter 71,'' before ``chapter 109A,''
each place it appears.
SEC. 11. SENTENCING ENHANCEMENTS FOR INTERSTATE TRAVEL TO ENGAGE IN
SEXUAL ACT WITH A JUVENILE.
Pursuant to its authority under section 994(p) of title 18, United
States Code, and in accordance with this section, the United States
Sentencing Commission shall review and, as appropriate, amend the
Federal Sentencing Guidelines and policy statements to ensure that
guideline penalties are adequate in cases that involve interstate
travel with the intent to engage in a sexual act with a juvenile in
violation of section 2423 of title 18, United States Code, to deter and
punish such conduct.
SEC. 12. MISCELLANEOUS PROVISIONS.
(a) Appointment of Trial Attorneys.--Not later than 6 months after
the date of enactment of this Act, the Attorney General shall appoint
25 additional trial attorneys to the Child Exploitation and Obscenity
Section of the Criminal Division of the Department of Justice or to
appropriate U.S. Attorney's Offices, and those trial attorneys shall
have as their primary focus, the investigation and prosecution of
Federal child pornography laws.
(b) Report to Congressional Committees.--
(1) In general.--Not later than 9 months after the date of
enactment of this Act, 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 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 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.
(c) Sentencing Guidelines.--Pursuant to its authority under section
994(p) of title 18, United States Code, and in accordance with this
section, the United States Sentencing Commission shall review and, as
appropriate, amend the Federal Sentencing Guidelines and policy
statements to ensure that the guidelines are adequate to deter and
punish conduct that involves a violation of paragraph (3)(B) or (6) of
section 2252A(a) of title 18, United States Code, as created by this
Act. With respect to the guidelines for section 2252A(a)(3)(B), the
Commission shall consider the relative culpability of promoting,
presenting, describing, or distributing material in violation of that
section as compared with solicitation of such material.
SEC. 13. SEVERABILITY.
If any provision of this Act, 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,
the amendments made by this Act, and the application of the provisions
of such to any person or circumstance shall not be affected
thereby.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S4391-4392)
Read twice and referred to the Committee on the Judiciary. (text of measure as introduced: CR S4392-4393)
Committee on the Judiciary. Hearings held. Hearings printed: S.Hrg. 107-974.
Sponsor introductory remarks on measure. (CR S10487-10488)
Committee on the Judiciary. Ordered to be reported with an amendment in the nature of a substitute favorably.
Committee on the Judiciary. Reported with an amendment in the nature of a substitute. Without written report.
Committee on the Judiciary. Reported with an amendment in the nature of a substitute. Without written report.
Placed on Senate Legislative Calendar under General Orders. Calendar No. 759.
Passed/agreed to in Senate: Passed Senate with an amendment by Unanimous Consent.(consideration: CR S11150-11153; text as passed Senate: CR S11150-11153)
Passed Senate with an amendment by Unanimous Consent. (consideration: CR S11150-11153; text as passed Senate: CR S11150-11153)
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Received in the House.
Held at the desk.
Message on Senate action sent to the House.