The U.S. Senate on Feb. 24 approved a bill that would give prosecutors powerful new tools to fight child pornographers. The bill aims to help authorities track down internet pedophiles while avoiding free-speech concerns that toppled a similar law last year.
The measure makes it harder for producers of computer-generated child pornography to evade prosecution, creates new crimes aimed at those who would entice minors into sexual activity, and requires greater proof from pornographers that they are not using children.
“We have a compelling interest in protecting our children from harm,” said Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, who sponsored the bill along with the panel’s top Democrat, Patrick Leahy of Vermont. “The ‘Protect Act’ strikes a necessary balance between this goal and the First Amendment.”
The Senate bill, which passed on an 84-0 vote, grew out of a Supreme Court ruling last April that struck down most of a 1996 law to ban “virtual,” or computer-generated, child pornography. The court, in its 6-3 decision, said the law was unconstitutionally vague and overreaching because it prohibited images that only appeared to, but did not actually, depict children engaged in sex.
The Hatch-Leahy bill was written with that decision in mind, and the Bush administration said it strongly supports the revisions. Passage “would be an important step in protecting children from abuse by ensuring effective child pornography prosecutions,” a White House statement said.
There was no indication how quickly the measure would be taken up in the House.
Child pornography has become more widely available in recent years as pedophiles worldwide use internet chat groups and visit web sites featuring child porn.
Specifically, the bill prohibits the pandering or solicitation of anything represented to be obscene child pornography. Responding to the court ruling, it requires the government to prove beyond a reasonable doubt that a person intended others to believe the material was obscene child pornography.
The bill also plugs a loophole where pornographers could avoid prosecution by claiming that their sexually explicit material was computer-generated and involved no real children. Under an “affirmative defense” provision, the defendant would be required to prove that real children were not a part of the production.
The bill narrows the definition of “sexually explicit conduct” for prosecutions of computer-created child pornography and requires people who produce sexually explicit material to keep more extensive records so that they can prove that minors were not used in making it.
It also creates a new crimethe use of child pornography by sexual predators to entice minors to engage in sexual activity or the production of new child pornographyand increases penalties for child pornographers.
Still, Leahy said he was worried that some provisions of the bill would be challenged in court. “The last thing we want to do is to create years of legal limbo for our nation’s children,” he said.
Leahy mentioned language that would allow prosecution of anyone who “presented” a movie intended to cause another person to believe that a minor was engaging in sexually explicit conduct. By that definition, he said, a movie theater presenting the movies Romeo and Juliet or American Beauty would be guilty of a felony.
Youthful sexuality is a venerable theme in art, from Shakespeare to Academy Award-winning movies, the Supreme Court ruled in striking down key provisions of the 1996 law. That law would call into question legitimate educational, scientific, or artistic depictions of youthful sex, Justice Anthony M. Kennedy wrote in the majority opinion.
Another section of the 1996 law was not challenged and remains in effect. It bans prurient computer alteration of innocent images of children, such as the grafting of a child’s school picture onto a naked body.
Bill Lyon of the Free Speech Coalition, an adult entertainment trade group that challenged the 1996 law, said the Hatch-Leahy bill appeared “much more confined to the specific area of child pornography.” The original bill, he said, “went way beyond protecting kids and was really a covert attempt to destroy the entire adult entertainment industry.”
The Senate bill is S. 151.
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Sen. Orrin Hatch
Sen. Patrick Leahy