|
U.S. SENATOR PATRICK
LEAHY
|
CONTACT: Office of Senator
Leahy, 202-224-4242 |
VERMONT |
Statement of Senator Patrick Leahy
on The Prosecutorial Remedies and Tools against
the
Exploitation of Children Today Act (APROTECT
Act@)
of 2003
I join with Senator Hatch, the Chairman of the
Judiciary Committee, in urging passage of S. 151, the Hatch-Leahy PROTECT
Act, a bill providing important new tools to fight child pornography. I
commend Senator Hatch for his leadership and his unflagging efforts to
protect our nation’s children from exploitation by child pornographers.
When Senator Hatch and I introduced this bill last
month, I supported passing a bill that was identical to the measure that we
worked so hard on in the last Congress. That bill had passed the Judiciary
Committee and the Senate unanimously in the 107th Congress. It
did not become law last year because, even though the Senate was still
meeting, considering and passing legislation, the House of Representatives
had adjourned and would not return to take action on this measure that had
passed the Senate unanimously or to work out our differences.
As I said when we introduced the Hatch-Leahy PROTECT
Act and again as the Judiciary Committee considered this measure, although
this bill is not perfect, it is a good faith effort to provide powerful
tools for prosecutors to deal with the problem of child pornography within
constitutional limits. We failed to do that in the 1996 Child Pornography
Protection Act (“CPPA”), much of which the Supreme Court struck down last
year. We must not make the same mistake again. The last thing we want to
do is to create years of legal limbo for our nation’s children, after which
the courts strike down yet another law as unconstitutional.
I also said at our Judiciary Committee meeting that I
hoped we could pass the bill in the same form as it unanimously passed in
the last Congress. That is still my position and I believe it would have
been wiser to proceed in that manner. Since my colleagues on the other
side of the aisle and the Administration have jointly decided not to follow
this route, however, I have nevertheless continued to work with Senator
Hatch to craft the strongest bill possible that will produce convictions
that will stick under the constitution.
I urge the Senate to pass this legislation, and I
strongly urge the Republican leadership in the House of Representatives to
take this second opportunity to pass this important legislation in the form
that we send to them. I urge the Administration to support this bipartisan
measure, instead of using this debate as an opportunity to add more changes
that strive to make an ideological statement, but which may not withstand
Constitutional scrutiny and may bog down the bill. If we act in a
bipartisan manner, we can have a bill to the President that can begin
working for America’s children in short order.
Efforts to Pass the PROTECT Act in the 107th
Congress: I want to take a moment to speak again about the
history of this important bill and the joint effort that it took to get
to this point. In May of 2002, I came to the Senate floor and joined
Senator Hatch in introducing the PROTECT Act , after the Supreme Court's
decision in Ashcroft v. Free Speech Coalition (AFree
Speech@).
Although there were some others who raised constitutional concerns about
specific provisions in that bill, I believed that unlike legislative
language proposed by the Administration in the last Congress, it was a
good faith effort to work within the First Amendment.
Everyone in the Senate agrees that we should do all
we can to protect our children from being victimized by child
pornography. That would be an easy debate and vote. The more difficult
thing is to write a law that will both do that and will produce
convictions that stick. In 1996, when we passed the CPPA many warned us
that certain provisions of that Act violated the First Amendment. The
Supreme Court's decision last year in Free Speech has proven them
correct.
We should not sit by and do nothing. It is important
that we respond to the Supreme Court’s decision. It is just as
important, however, that we avoid repeating our past mistakes. Unlike
the CPPA, this time we should respond with a law that passes
constitutional muster. Our children deserve more than a press conference
on this issue. They deserve a law that will last rather than be stricken
from the law books.
It is important that we do all we can to end the
victimization of real children by child pornographers, but it is also
important that we pass a law that will withstand First Amendment scrutiny.
We need a law with real bite, not one with false teeth.
After joining Senator Hatch in introducing the PROTECT
Act in the 107th Congress, as Chairman of the Judiciary
Committee in the last Congress, I convened a hearing on October 2, 2002 on
the legislation. We heard from the Administration, from the National
Center for Missing and Exploited Children (ANCMEC@),
and from experts who came and told us that our bill, as introduced, would
pass constitutional muster, but the House‑passed bill supported by the
Administration would not.
I then placed the Hatch-Leahy PROTECT Act on the
Judiciary Committee's calendar for the October 8, 2002, business meeting. I
continued to work with Senator Hatch to improve the bill so that it could
be quickly enacted. Unfortunately the Judiciary Committee was unable to
consider it because of procedural maneuvering by my colleagues that had
nothing to do with this important legislation.
I still wanted to get this bill done. That is why,
for a full week in October, I worked to clear and have the full Senate
pass a substitute to the bill that tracked the Hatch‑Leahy proposed
committee substitute in nearly every area. Indeed, the substitute I
offered even adopted parts of the House bill which would help the NCMEC
work with local and state law enforcement on
these cases. Twice, I spoke on the Senate floor
imploring that we approve such legislation. As I stated then, every
single Democratic Senator cleared that measure. I then urged Republicans
to work on their side of the aisle to clear this measure‑‑so similar to
the joint Hatch‑Leahy substitute‑‑so that we could swiftly enact a law
that would pass constitutional muster. Unfortunately, they did not.
Facing the recess before the mid‑term elections, we were stymied again.
Even after the last election, however, during our
lame duck session, I continued to work with Senator Hatch to pass this
legislation through the Senate. As I had stated I would do prior to the
election, I called a meeting of the Judiciary Committee on November 14,
2002. In the last meeting of the Judiciary Committee under my
Chairmanship in the 107th Congress, I placed S. 2520, the Hatch‑Leahy
PROTECT Act, on the agenda yet again. At that meeting the Judiciary
Committee amended and approved this legislation. We agreed on a
substitute and to improvements in the victim shield provision that I
authored.
Although I did not agree with certain of Senator
Hatch's amendments, because I thought that they risked having the bill
declared unconstitutional, I nevertheless both called for the Committee
to approve the bill and voted for the bill in its amended form. That is
the legislative process. I compromised on some issues, and Senator Hatch
compromised on others. Even though the bill was not exactly as either of
us would have wished, we both worked fervently to seek its passage.
I sought, the same day as the bill unanimously passed
the Judiciary Committee, to gain the unanimous consent of the full Senate
to pass the Hatch-Leahy PROTECT Act as reported, and I worked with Senator
Hatch to clear the bill on both sides of the aisle. I am pleased that the
Senate did pass the bill by unanimous consent. I want to thank Senator
Hatch for all he did to help clear the bill for passage in the 107th
Congress. Unfortunately, the House failed to act on this measure last year
and the Administration decided not to push for passage. If they had, we
could have passed a bill, sent it to the President, and already had a new
law on the books.
Instead, we were forced to repeat the entire process
again, and I am here again with Senator Hatch asking yet again that this
bill be enacted. I am glad to have been able to work hand-in-hand with
Senator Hatch on the PROTECT Act because, it is a bill that gives
prosecutors and investigators the tools they need to combat child
pornography. The Hatch‑Leahy PROTECT Act strives to be a serious response
to a serious problem. Let me outline some of the bill=s
important provisions:
Key Provisions of the PROTECT Act:
Section 3 of the bill creates two new crimes aimed at people who
distribute child pornography and those who use such material to entice
children to do illegal acts. Each of these new crimes carries a 15 year
maximum prison sentence for a first offense and double that term for
repeat offenders. First, the bill criminalizes the pandering of
child pornography, creating a new crime to respond to the Supreme Court=s
recent ruling striking down the CPPA=s
definition of pandering. This provision is narrower than the old
Apandering@
definition in at least one way that responds to a specific Court
criticism. The new crime only applies to the people who actually pander
the child pornography or solicit it, not to all those who possess the
material Adownstream@
and it requires the government to demonstrate that the defendant acted
with the specific intent that the material is believed to be child
pornography. The bill also contains a directive to the Sentencing
Commission which asks it to distinguish between those who pander or
distribute such material and those who only “solicit” the material. As
with narcotics cases, distributors and producers are more culpable than
users and should be more harshly punished for maximum deterrent effect.
I would have liked for the pandering provision to be
crafted more narrowly so that
Apurported@
material was not included and so that all pandering prosecutions would be
linked to “obscenity” doctrine. That is the way that Senator Hatch and I
originally wrote and introduced this provision in the last Congress.
Unfortunately, the amendment process has resulted in some expansions to
this once non-controversial provision that may subject it to a
constitutional challenge. Thus, while it responds to some specific
concerns raised by the Supreme Court there are constitutional issues that
the courts will have to seriously consider with respect to this
provision. I will discuss these issues later.
Second, the bill creates a new crime that I
proposed to take direct aim at one of the chief evils of child pornography:
namely, its use by sexual predators to entice minors either to engage in
sexual activity or the production of more child pornography. This was one
of the compelling arguments made by the government before the Supreme Court
in support of the CPPA, but the Court rejected that argument as an
insufficient basis to ban the production, distribution or possession of
Avirtual@
child pornography. This bill addresses that same harm in a more targeted
and narrowly tailored manner. It creates a new felony, which applies to
both actual and virtual child pornography, for people who use such material
to entice minors to participate in illegal activity. This will provide
prosecutors a potent new tool to put away those who prey upon children
using such pornography B
whether the child pornography is virtual or not.
Next, this
bill attempts to revamp the existing affirmative defense in child
pornography cases both in response to criticisms of the Supreme Court and
so that the defense does not erect unfair hurdles to the prosecution of
cases involving real children. Responding directly to criticisms of the
Court, the new affirmative defense applies equally to those who are charged
with possessing child pornography and to those who actually produce it, a
change from current law. It also allows, again responding to specific
Supreme Court criticisms, for a defense that no actual children were used
in the production of the child pornography
B
i.e. that it was made using computers. At the same time, this provision
protects prosecutors from unfair surprise in the use of this affirmative
defense by requiring that a defendant give advance notice of his intent to
assert it, just as defendants are currently required to give if they plan
to assert an alibi or insanity defense. As a former prosecutor I
suggested this provision because it affects the real way that these
important trials are conducted. With the provision, the government will
have sufficient notice to marshal the expert testimony that may be needed
to rebut this Avirtual
porn@ defense in
cases where real children were victimized.
This improved affirmative defense measure also
provides important support for the constitutionality of much of this bill
after the Free Speech decision. Even Justice Thomas specifically
wrote that it would be a key factor for him. This is one reason for
making the defense applicable to all non-obscene, child pornography, as
defined in 18 U.S.C. '
2256. In the bill=s
current form, however, the affirmative defense is not available in
one of the new proposed classes of virtual child pornography, which would
be found at 18 U.S.C. '
2252B(b)(2). This omission may render that provision unconstitutional
under the First Amendment, and I hope that, as the legislative process
continues, we can work to improve the bill in this and other ways. I do
not want to be here again in five years, after yet another Supreme Court
decision striking this law down.
The bill also provides needed assistance to
prosecutors in rebutting the virtual porn defense by removing a
restriction on the use of records of performers portrayed in certain
sexually explicit conduct that are required to be maintained under 18
U.S.C. ' 2257,
and expanding such records to cover computer images. These records,
which will be helpful in proving that the material in question is not
Avirtual@
child pornography, may be used in federal child pornography and obscenity
prosecutions under this Act. The purpose of this provision is to protect
real children from exploitation. It is important that prosecutors have
access to this information in both child pornography and obscenity
prosecutions, since the Supreme Court=s
recent decision has had the effect of narrowing the child pornography
laws, making more likely that the general obscenity statutes will be
important tools in protecting children from exploitation. In addition,
the Act raises the penalties for not keeping accurate records, further
deterring the exploitation of minors and enhancing the reliability of the
records.
Next, the Hatch-Leahy bill contains several provisions
altering the definition of
Achild pornography@
in response to the Free Speech case. One approach would have been
simply to add an Aobscenity@
requirement to the child pornography definitions. Outlawing all
obscene child pornography
B real and virtual; minor and
>youthful-adult;=
simulated and real B
would clearly pass a constitutional challenge because obscene speech enjoys
no protection at all. Under the Miller obscenity test, such
material (1) Aappeals
to the prurient interest,@
(2) is utterly Aoffensive@
in any Acommunity,@
and (3) has absolutely no serious
Aliterary, artistic
or scientific value.@
Some new provisions of this bill do take this
Aobscenity@
approach, like the new '
2252B(b)(1) and, to a lesser extent the new
' 2252B(b)(2),
which I crafted with Senator Hatch. Other provisions, however, take a
different approach. Specifically, the CPPA=s
definition of Aidentifiable
minor@ has been
modified in the bill to include a prong for persons who are
Avirtually
indistinguishable from an actual minor.@
This adopts language from Justice O=Connor=s
concurrence in the Free Speech case. Thus, while this language is
defensible, I
predict that this provision will be the center of much
constitutional debate. Although I will explain in more detail later, these
new definitional provisions risk crossing the constitutional line. I am not
alone in this view and ask to have supporting letters from constitutional
experts printed in the record.
This bill also contains a variety of other measures
designed to increase jail sentences in cases where children are
victimized by sexual predators. First, it enhances penalties for repeat
offenders of child sex offenses by expanding the predicate crimes which
trigger tough, mandatory minimum sentences. Second, the bill requires
the U.S. Sentencing Commission to address a disturbing disparity in the
current Sentencing Guidelines. The current sentences for a person who
actually travels across state lines to have sex with a child are not as
high as for child pornography. The Commission needs to correct this
oversight immediately, so that prosecutors can take these dangerous
sexual predators off the street. These are all strong measures designed
to protect children and increase prison sentences for child molesters and
those who otherwise exploit children.
The Hatch-Leahy PROTECT Act also has several
provisions designed to protect the children who are victims in these
horrible cases. Privacy of the children must be paramount. It is
important that they not be victimized yet again in the criminal process.
This bill provides for the first time ever an explicit shield law that
prohibits the name or other non physical identifying information of the
child victim (other than the age or approximate age) from being admitted
at any child pornography trial. It is also intended that judges can and
will take appropriate steps to ensure that such information as the child=s
name, address or other identifying information not be publicly disclosed
during the pretrial phase of the case or at sentencing as well. The bill
also contains a provision requiring the judge to instruct the jury, upon
request of the government, that no inference should be drawn against the
United States because of information inadmissible under the new shield
law.
The Hatch-Leahy PROTECT Act also amends certain
reporting provisions governing child pornography. Specifically, it allows
federal authorities to report information they receive from the Center from
Missing and Exploited Children (ACMEC@)
to state and local police without a court order. In addition, the bill
removes the restrictions under the Electronic Communications Privacy Act (ECPA)
for reporting the contents of, and information pertaining to, a subscriber
of stored electronic communications to the CMEC when a mandatory child porn
report is filed with the CMEC pursuant to 42 U.S.C.
'13032.
While this change may invite rogue federal, state or
local agents to try to circumvent all subpoena and court order requirements
under ECPA and allow them to obtain subscriber emails and information by
triggering the initial report to the CMEC themselves, it should be well
understood that this is not the intention behind this provision. These
important safeguards are not being altered in any way, and a deliberate use
of the tip line by a government agent to circumvent the well established
statutory requirements of these provisions would be a serious violation of
the law. Nevertheless, we should still consider further clarification to
guard against subverting the safeguards in ECPA from government officials
going on fishing expeditions for stored electronic communications under the
rubric of child porn investigations.
As I made clear when this bill was introduced, I
continue to express my disappointment in the Department of Justice
information sharing regulations related to the CMEC tip line. According to
a recent Government Accounting Office (GAO) report, due to outdated turf
mentalities, the Attorney General=s
regulations exclude both the United States Secret Service and the U.S.
Postal Inspection Service from direct access to important tip line
information. That is totally unacceptable, especially in the post 9-11
world where the importance of information sharing is greater than ever.
How can the Administration justify support of this Hatch-Leahy bill, which
allows state and local law enforcement officers such access, when
they are simultaneously refusing to allow other federal law
enforcement agencies access to the same information? I made this request
in my statement when we introduced this bill, but once more I urge the
Attorney General to end this unseemly turf battle and to issue regulations
allowing both the Secret Service and the Postal Inspection Service, who
both perform valuable work in investigating these cases, to have access to
this important information so that they can better protect our nation=s
children.
The Hatch-Leahy bill also provides for
extraterritorial jurisdiction where a defendant induces a child to engage
in sexually explicit conduct outside the United States for the purposes of
producing child pornography which they intend to transport to the United
States. The provision is crafted to require the intent of actual transport
of the material into the United States, unlike the House bill from the last
Congress, which criminalized even an intent to make such material
Aaccessible.@
Under that overly broad wording, any material posted on a web site
internationally could be covered, whether or not it was ever intended that
the material be downloaded in the United States. Under the bill we
consider today, however, proof of a specific intent to send such material
to the United States is required.
Finally, the bill provides a new private right of
action for the victims of child pornography. This provision has teeth,
including injunctive relief and punitive damages that will help to put
those who produce child pornography out of business for good. I commend
Senator Hatch for his leadership on this provision and his recognition that
such punitive damages provisions are important means of deterring
misconduct. These provisions are important, practical tools to put child
pornographers out of business for good and in jail where they belong.
Joint Hatch-Leahy Improvements in the Judiciary
Committee: As I mentioned previously, the PROTECT Act is a good
faith effort to tackle the child pornography problem, and I have supported
its passage from the outset. I am also glad that because of our bipartisan
cooperation, Senator Hatch and I were able to offer a joint amendment in
Committee that strengthened the bill further against constitutional
attack. Here are some of the improvements that we jointly made to the bill
as introduced.
-
The Hatch-Leahy amendment created a new specific intent requirement in
the pandering crime. The provision is now better focused on the true
wrongdoers and requires that the government prove beyond a reasonable
doubt that the defendant actually intended others to believe that the
material in question is obscene child pornography. This is a positive
step.
-
The Hatch-Leahy amendment narrowed the definition of “sexually explicit
conduct” for prosecutions of computer created child pornography.
Although I continue to have serious reservations about the
constitutionality of prosecuting cases involving such “virtual child
pornography” after the Supreme Court’s decision in Free Speech
Coalition v. Ashcroft, narrowing the definition of the conduct
covered provides another argument that the provision is not as overbroad
as the one in the CPPA. I had also proposed a change that contained an
even better definition, in order to focus the provision to true “hard
core” child pornography, and I hope we will consider such a change as the
process continues.
-
The Hatch-Leahy amendment the saved the existing “anti-morphing”
provision from a fresh constitutional attack by excluding 100% virtual
child pornography from its scope. That morphing provision was one of the
few measures from the CPPA that the Supreme Court did not strike down
last year. I am pleased that we are avoiding placing this measure in
constitutional peril in this bill.
-
The Hatch-Leahy amendment refined the definition of virtual child
pornography in the provision that Senator Hatch and I worked together to
craft last year, which will be new 18 U.S.C. § 2252B. These provisions
rely to a large extent on obscenity doctrine, and thus are more rooted in
the constitution than other parts of the bill. I was pleased that the
Hatch-Leahy amendments includes in new 2252B(2) a definition that the
image be “graphic” – that is one where the genitalia are actually shown
during the sex act for two reasons.
First, because the
old law would have required proof of “actual” minors in cases with
“virtual” pictures, I believe that this clarification will remove a
potential contradiction from the new law which pornographers could have
used to mount a defense. Second, it will provide another argument
supporting the law’s constitutionality because the new provision is
narrowly tailored to cover only the most “hard core” child pornography. I
am disappointed that we could not include a similar definition in the S.
151’s other virtual child pornography provision, which was included at the
request of the Administration. I hope that will be considered as this bill
moves forward.
- The Hatch-Leahy amendment also clarifies that
digital pictures are covered by the PROTECT Act, an important addition in
today’s world of digital cameras and camcorders.
These were important changes, and I was glad to work
with Senator Hatch to craft them.
Remaining Issues: This law is not
perfect, however, and I would have liked to see some additional
improvements to the bill. Let me outline some of them.
First, regarding the tip line, I would have liked to
further clarify that law enforcement agents may not and should not ``tickle
the tip line'' to avoid the key protections of the Electronic
Communications Privacy Act (ECPA). This might have included clarifying 42
U.S.C. '13032 that
the initial tip triggering the report may not be generated by the
government=s
investigative agents themselves. A tip line to the CMEC is just that
B a way for
outsiders to report wrongdoing to the CMEC and the government, not for the
government to generate a report to itself without following otherwise
required lawful process. It was not the intent of any part of this bill
to alter that purpose.
Second, regarding the affirmative defense, I would
have liked to ensure that there is an affirmative defense for each new
category of child pornography and for all cases where a defendant can prove
in court that a specific, non‑obscene image was made using not any child
but only actual, identifiable adults. That will no doubt be a basis for
attacking the constitutionality of this law.
As a general matter, it is worth repeating that we
could be avoiding all these problems were we to take the simple approach of
outlawing Aobscene@
child pornography of all types, which we do in one new provision that I
suggested. That approach would produce a law beyond any possible
challenge. This approach is also supported by the National Center for
Missing and Exploited Children, which we all respect as the true expert in
this field.
Following is an excerpt from the Center's answer to
written questions submitted after our hearing, which I will place in the
record in its entirety:
AOur view is that
the vast majority (99‑100%) of all child pornography would be found to be
obscene by most judges and juries, even under a standard of beyond a
reasonable doubt in criminal cases. Even within the reasonable person
under community standards model, it is highly unlikely that any community
would not find child pornography obscene. .
In the post Free Speech decision legal climate, the prosecution of child
pornography under an obscenity approach is a reasonable strategy and sound
policy.@
|
Thus, according to the National Center for
Missing and Exploited Children, the approach that is least likely to
raise constitutional questions‑‑using established obscenity law‑‑is
also an effective one. In short, the obscenity approach is the most
narrowly tailored to prevent child pornography. New section 2252B
adopts this obscenity approach, but because that is not the approach
that other parts of the PROTECT Act uses, I recognize that it contains
provisions about which some may have legitimate Constitutional questions.
Specifically, in addition to the provisions that I have already
discussed, there were two amendments adopted in the Judiciary Committee
in the last Congress and one on this Congress to which I objected that
are included in the bill as we consider it today. I felt and still
feel that these alterations from the original way that Senator Hatch
and I introduced the bill needlessly risk a serious constitutional
challenge to a bill that provided prosecutors the tools they needed to
do their jobs, and that the bill would be even stronger than it is now
were they changed. Let me discuss my opposition to these changes
adopted by the Judiciary Committee in this Congress and the last.
Expansion of Pandering Provision: Although I worked
with Senator Hatch to write the new pandering provision in the
PROTECT Act, I did not support two of Senator Hatch=s
amendments extending the provision to cover (1) “purported” material,
and (2) material not linked to obscenity.
First, in the last Congress during our markup I objected to an
amendment from Senator Hatch to include in the pandering provision
Apurported@
material, which criminalizes speech even when there is no underlying
material at all ‑‑ whether obscene or non‑obscene, virtual or real,
child or adult. The pandering provision is an important tool for
prosecutors to punish true child pornographers who for some technical
reason are beyond the reach of the normal child porn distribution or
production statutes. It is not meant to federally criminalize
talking dirty over the internet or the telephone when the person
never possesses any material at all. That is speech, and that goes
too far.
The original pandering provision in S. 2520 as introduced last
Congress was quite broad, and some argued that it presented
constitutional problems as written, but I thought that prosecutors
needed a strong tool, so I supported Senator Hatch on that provision.
I was heartened that Professor Schauer of Harvard, a noted First
Amendment expert, testified at our hearing last year that he thought
that the original provision was Constitutional, barely.
Unfortunately, Professor Schauer has since written to me stating that
this new amendment to include
Apurported@
material Awould
push well over the constitutional edge a provision that is now up
against the edge, but probably barely on the constitutional side of
it.@ I
placed his letter in the record upon introduction of the bill in this
Congress on January 13, 2003.
The second amendment to the pandering provision to which I objected
expanded it to cover cases not linked in any way to obscenity. It
would allow prosecution of anyone who “presented” a movie that was
intended to cause another person to believe that it included a minor
engaging in sexually explicit conduct, whether or not it was obscene
and whether or not any real child was involved. Any person or movie
theater that presented films like Traffic, Romeo and Juliet,
and American Beauty would be guilty of a felony. The very
point of these dramatic works is to cause a person to believe that
something is true when in fact it is not. These were precisely the
overbreadth concerns that led 7 justices of the Supreme Court
to strike down parts of the 1996 Act. We do not want to put child
porn convictions on hold while we wait another 6 years to see if the
law will survive constitutional scrutiny.
Because these two changes endanger the entire pandering provision,
because they are unwise, and because that section is already strong
enough to prosecute those who peddle child pornography, I oppose
those expansions of the provision and still hope that we can
reconsider them.
Inclusion of 100% Virtual Child
Pornography in AIdentifiable
Minor@
Provision: Although I joined Senator Hatch in introducing
this bill, even when it was introduced last year I expressed concern
over certain provisions. One such provision was the new definition
of Aidentifiable
minor.@ When
the bill was introduced, I noted that this provision might
Aboth confuse
the statute unnecessarily and endanger the already upheld
>morphing=
section of the CPPA.@
I said I was concerned that it
Acould
present both overbreadth and vagueness problems in a later
constitutional challenge.@
Unfortunately, this provision remains problematic and susceptible to
constitutional challenge.
As the bill developed, a change to the
definition of Aidentifiable
minor@
expanded it to cover
Avirtual@
child pornography B
that is, 100% computer generated pictures not involving any real
children. For that reason, it presented additional constitutional
problems similar to the Administration supported House bill. I
objected to this amendment when it was added to the bill in the last
Congress in Committee, and I continue to have serious concerns with
it now.
The
Aidentifiable
minor@
provision in the PROTECT Act may be used without any link to
obscenity doctrine. Therefore, what potentially saved the original
version we introduced in the 107th Congress was that it
applied to child porn made with real
Apersons.@
The provision was designed to cover all sorts of images of real kids
that are morphed or altered, but not something entirely made by
computer, with no child involved.
The change adopted in the Judiciary Committee
last year and supported by the Administration, however, redefined
Aidentifiable
minor@ by
creating a new category of pornography for any
Acomputer
generated image that is virtually indistinguishable from an actual
minor@
dislodged, in my view, that sole constitutional anchor. The new
provision could be read to include images that never involved real
children at all but were 100 percent computer generated.
That was not the original goal of this
provision, and that was the reason it was constitutional. There are
other provisions in this bill that deal with obscene virtual child
pornography that I support, such as those in new section 2252B, which
are linked to obscenity doctrine. This provision, however, was
intended to ease the prosecutor's burden in cases where images of
real children were cleverly altered to avoid prosecution. By
changing the identifiable minor provision into a virtual porn
provision, the Administration has needlessly endangered its
constitutionality.
For these reasons, I was glad to work alongside
Senator Hatch to narrow this provision before the Judiciary Committee.
Unfortunately, despite our best efforts, I fear we did not do
everything possible to strengthen it against constitutional attack.
Let me explain.
Although the Hatch-Leahy amendment adopted in
Committee included a slightly narrower definition of sexually explicit
conduct and excluded cartoons, sculptures, paintings, anatomical models
and the like, the virtual porn provision still sweeps quite broadly and
is potentially vague. New section 2252A(2)(B)(i) lumps in such truly
“hard core” sexual activities such as intercourse, bestiality, and s&m
in with simple lascivious exhibition of the genitals and simulated
intercourse where any part of a breast is shown. Equating such
disparate types of conduct, however, does not mesh with community
standards and is precisely the type of “one size fits all” approach
that the Supreme Court rejected in the area of virtual pornography in
the Free Speech case. The contrast between this broad
definition and the tighter definition in new Section 2252B(b)(2),
crafted by Senator Hatch and myself, is striking. In fact, I suggested
that we include the same definition of “graphic” conduct found in new
section 2252B in the new Section 2252A virtual child porn provision to
better focus it on hard core conduct. Unfortunately, the
Administration rejected that proposal and the provision may be open to
overbreadth attacks.
I also believe that there is a vagueness concern
in the new statute 2252A because, while it is clearly aimed at
“virtual” child pornography (where no real children are involved), it
still requires “actual” conduct. In the realm of computer generated
images, however, the distinction between actual and simulated conduct
makes no sense. It is so vague and confusing that I fear that clever
defendants might seek to argue that this new provision still requires
proof “actual” sexual acts involving real children. I hope that this
language is further clarified in order to address these concerns.
The Supreme Court made it clear that we can only
outlaw child pornography in two situations: No. 1, it is obscene, or
No. 2, it involves real kids. That is the law as stated by the Supreme
Court, whether or not we agree with it.
Senator Hatch and I agree that legislation in this
area is important. But regardless of our personal views, any law must
be within constitutional limits or it does no good at all. The amended
identifiable minor provision, which would include most
Avirtual child
pornography@ in
the definition of child pornography, in my view, crosses the
constitutional line, however, and needlessly risks protracted
litigation that could assist child pornographers in escaping
punishment.
Mandatory Directive to Sentencing Commission:
Another new provision in the bill includes a mandatory directive to the
United States Sentencing Commission to establish penalties for these
new crimes at certain levels. In my experience, however, the
non-partisan Sentencing Commission operates best when it is allowed to
study an issue carefully and come up with a particular sentencing
guideline based upon its expertise in these matters. In fact, in child
pornography cases the Sentencing Commission has established
appropriately high penalties in the past, and there is no reason to
believe that it would not do so again with respect to these new laws.
Administration Proposal: While most
all of the provisions of the Hatch-Leahy PROTECT Act are designed to
withstand constitutional scrutiny, unfortunately legal experts could
not vouch for the constitutionality of the bill supported by the
Administration in the last Congress, which seemed to challenge the
Supreme Court's decision, rather than accommodate the restraints
spelled out by the Supreme Court. That proposal and the associated
House bill from the 107th Congress simply ignored the
Supreme Court's decision, reflecting an ideological response rather
than a carefully drawn bill that would stand up to scrutiny.
I supported passage of the PROTECT Act as Senator
Hatch and I introduced it and as it passed the Senate unanimously in
the last Senate. Even so, I was willing to work with him to further
amend the bill in the Judiciary Committee. Some amendments that we
considered in committee I supported because they improved the bill.
Others went too far.
These provisions raise legitimate concerns, but in
the interest of making progress I support consideration and passage of
the measure in its current form. I hope that we can work to further
improve this bill so that it has the best possible chance of
withstanding a constitutional challenge.
That is not everyone's view. Others evidently
think it is more important to make an ideological statement than to
write a law. A media report on this legislation at the end of the last
Congress reported the wide consensus that the Hatch-Leahy bill was more
likely than the House bill to withstand scrutiny, but quoted a
Republican House member as stating:
AEven if it
comes back to Congress three times we will have created better
legislation.@
To me, that makes no sense. Why not create the
Abetter
legislation@
right now for today=s
children, instead of inviting more years of litigation and putting at
risk any convictions obtained in the interim period before the Supreme
Court again reviews the constitutionality of Congress=
effort to address this serious problem? That is what the PROTECT Act
seeks to accomplish.
Even though this bill is not perfect, I am glad to
stand with Senator Hatch to secure its approval by the Senate as I did
in the last Congress. The floor statements, including my statement
today and the statement and material I placed in the Congressional
Record on introduction of this bill on January 13, 2003, will be
important to the legislative history of this matter, and so I seek
consent to place letters from experts in the
record commenting upon aspects of the bill. Creating a comprehensive
record is especially important for statutes that face constitutional
challenges, as this law nearly certainly will.
As I have explained, I believe that this issue is
so important that I have been willing to compromise and to support a
measure even though I do not agree with each and every provision that
it contains. That is how legislation is normally passed. I hope that
the Administration and the House do not decide to play politics with
this issue and seek further changes that could bog the bill down. I
urge swift consideration and passage of this important bill as it is
currently written. It is aimed at protecting our nation=s
children.
Mr. President, I ask unanimous consent that my
entire statement be included in the record in addition to supporting
letters and materials to which I referred. |
Thus, acco
|
