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House Subcommittee Approves Bill to Revise Child Pornography Law

On May 9, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security approved, by voice vote, legislation (H.R. 4623) aimed at combating computer-generated child pornography. Sponsored by Subcommittee Chair Lamar Smith (R-TX), the bill responds to a recent U.S. Supreme Court decision that invalidated a portion of the Child Pornography Prevention Act of 1996 (P.L. 104-208), which expanded the definition of child pornography to include computer-generated images of children as well as real-life images. The subcommittee held a hearing on the Court’s decision on May 1 (see The Source, 5/3/02).

The Child Obscenity and Pornography Prevention Act (H.R. 4623) would narrow the definition of child pornography to include only a computer image or a computer-generated image that appears “virtually indistinguishable from” actual child pornography. The bill also would make it illegal to possess or distribute material that depicts images, real or virtual, of prepubescent children engaged in sexually explicit acts and would prevent child molesters from using pornography to exploit children.

Supporters of the legislation contend that the Court’s decision will have a detrimental effect on the ability of the government to prosecute cases against child pornographers. “Child pornography, virtual or otherwise, is detrimental to children,” said Rep. Smith. “Without amending the current law, we face a proliferation of child pornography,” he added.

Opponents of the bill, such as Rep. Bobby Scott (D-VA), say that the bill is still as unconstitutional as the 1996 law. “The Supreme Court made it clear that if it’s not a real child, it’s not illegal and it’s not obscene,” he argued. “If you can’t distinguish the images, it’s not the defendant’s problem, it’s your problem,” he added.

The subcommittee adopted, by voice vote, a substitute amendment by Rep. Smith. In addition to making technical corrections, the amendment would modify language in the bill that refers to images that are “virtually indistinguishable from that of a minor engaging in sexually explicit conduct.” The amendment would strike “virtual” and replace it with “nearly.”

The subcommittee also approved, by voice vote, an amendment by Rep. Bob Barr (R-GA) that would eliminate the section of the bill that calls for the creation of a database for the purpose of “identifying child pornography produced with actual children.” Rep. Barr pointed out that the language would allow the identity of and information about the child victim to be released. “We should protect children from undue public exposure and minimize intrusions into the lives of child victims and their families,” he said.

Additionally, the subcommittee approved, by voice vote, a second bill (H.R. 4477) that would make it easier to prosecute individuals who travel to foreign countries for the purpose of engaging in sex with a minor. Sponsored by House Judiciary Committee Chair James Sensenbrenner (R-WI), the bill would eliminate the requirement in current law that prosecutors prove the “intent” of a suspect who travels abroad to have sex with a minor.

Subcommittee Hearing
On the same day, prior to approving the bills, the subcommittee held a hearing to examine both legislative proposals. The lone witness at the hearing, Daniel Collins of the Department of Justice (DoJ), focused his testimony on H.R. 4623.

Mr. Collins described his agency’s disappointment in the U.S. Supreme Court’s ruling to nullify provisions in the 1996 pornography law. The Court’s decision “took away one of the most important legal tools we have in combating the scourge of child pornography,” he said.

He testified that H.R. 4623 was drafted by the DoJ and addresses the constitutional concerns raised by the Court’s decision. The legislation, he said, “strikes the right balance by adopting a range of complementary provisions that aim to further the government’s compelling interest in protecting children, while avoiding infringement of First Amendment rights.”

For instance, in addition to limiting the definition of child pornography, the bill would “narrow the definition of ‘sexually explicit conduct,’” he explained. Specifically, the bill would ban any computer-generated image of a child engaged in illicit sexual conduct “only if the depiction is ‘lascivious’ and involves the exhibition of the ‘breasts or pubic area,’” he added.

H.R. 4623, introduced by Rep. Smith, has a bipartisan group of 39 cosponsors.

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