I

104TH CONGRESS

2D SESSION H. R. 4123

To amend certain provisions of law relating to child pornography, and for

other purposes.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 19, 1996

Mr. KENNEDY of Massachusetts introduced the following bill; which was

referred to the Committee on the Judiciary

A BILL

To amend certain provisions of law relating to child

pornography, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Child Pornography

5 Prevention Act of 1996’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) the use of children in the production of sex9 ually explicit material, including photographs, films,

10 videos, computer images, and other visual depictions,
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1 is a form of sexual abuse which can result in phys2 ical or psychological harm, or both, to the children

3 involved;

4 (2) where children are used in its production,

5 child pornography permanently records the victim’s

6 abuse, and its continued existence causes the child

7 victims of sexual abuse continuing harm by haunting

8 those children in future years;

9 (3) child pornography is often used as part of

10 a method of seducing other children into sexual ac11 tivity; a child who is reluctant to engage in sexual

12 activity with an adult, or to pose for sexually explicit

13 photographs, can sometimes be convinced by viewing

14 depictions of other children ‘‘having fun’’ participat15 ing in such activity;

16 (4) child pornography is often used by

17 pedophiles and child sexual abusers to stimulate and

18 whet their own sexual appetites, and as a model for

19 sexual acting out with children; such use of child

20 pornography can desensitize the viewer to the pa21 thology of sexual abuse or exploitation of children,

22 so that it can become acceptable to and even pre23 ferred by the viewer;

24 (5) new photographic and computer imaging

25 technologies make it possible to produce by elec-
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1 tronic, mechanical, or other means, visual depictions

2 of what appear to be children engaging in sexually

3 explicit conduct that are virtually indistinguishable

4 to the unsuspecting viewer from unretouched photo5 graphic images of actual children engaging in sexu6 ally explicit conduct;

7 (6) computers and computer imaging tech8 nology can be used to—

9 (A) alter sexually explicit photographs,

10 films, and videos in such a way as to make it

11 virtually impossible for unsuspecting viewers to

12 identify individuals, or to determine if the of13 fending material was produced using children;

14 (B) produce visual depictions of child sex15 ual activity designed to satisfy the preferences

16 of individual child molesters, pedophiles, and

17 pornography collectors; and

18 (C) alter innocent pictures of children to

19 create visual depictions of those children engag20 ing in sexual conduct;

21 (7) The creation or distribution of child pornog22 raphy which includes an image of a recognizable

23 minor invades the child’s privacy and reputational

24 interests, since images that are created showing a

25 child’s face or other identifiable feature on a body
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1 engaging in sexually explicit conduct can haunt the

2 minor for years to come;

3 (8) the effect of visual depictions of child sexual

4 activity on a child molester or pedophile using that

5 material to stimulate or whet his own sexual appe6 tites, or on a child where the material is being used

7 as a means of seducing or breaking down the child’s

8 inhibitions to sexual abuse or exploitation, is the

9 same whether the child pornography consists of pho10 tographic depictions of actual children or visual de11 pictions produced wholly or in part by electronic,

12 mechanical, or other means, including by computer,

13 which are virtually indistinguishable to the

14 unsuspecting viewer from photographic images of ac15 tual children;

16 (9) the danger to children who are seduced and

17 molested with the aid of child sex pictures is just as

18 great when the child pornographer or child molester

19 uses visual depictions of child sexual activity pro20 duced wholly or in part by electronic, mechanical, or

21 other means, including by computer, as when the

22 material consists of unretouched photographic im23 ages of actual children engaging in sexually explicit

24 conduct;
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1 (10)(A) the existence of and traffic in child por2 nographic images creates the potential for many

3 types of harm in the community and presents a clear

4 and present danger to all children; and

5 (B) it inflames the desires of child molesters,

6 pedophiles, and child pornographers who prey on

7 children, thereby increasing the creation and dis8 tribution of child pornography and the sexual abuse

9 and exploitation of actual children who are victim10 ized as a result of the existence and use of these ma11 terials;

12 (11)(A) the sexualization and eroticization of

13 minors through any form of child pornographic im14 ages has a deleterious effect on all children by en15 couraging a societal perception of children as sexual

16 objects and leading to further sexual abuse and ex17 ploitation of them; and

18 (B) this sexualization of minors creates an un19 wholesome environment which affects the psycho20 logical, mental and emotional development of chil21 dren and undermines the efforts of parents and fam22 ilies to encourage the sound mental, moral and emo23 tional development of children;

24 (12) prohibiting the possession and viewing of

25 child pornography will encourage the possessors of
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1 such material to rid themselves of or destroy the ma2 terial, thereby helping to protect the victims of child

3 pornography and to eliminate the market for the

4 sexual exploitative use of children; and

5 (13) the elimination of child pornography and

6 the protection of children from sexual exploitation

7 provide a compelling governmental interest for pro8 hibiting the production, distribution, possession,

9 sale, or viewing of visual depictions of children en10 gaging in sexually explicit conduct, including both

11 photographic images of actual children engaging in

12 such conduct and depictions produced by computer

13 or other means which are virtually indistinguishable

14 to the unsuspecting viewer from photographic im15 ages of actual children engaging in such conduct.

16 SEC. 3. DEFINITIONS.

17 Section 2256 of title 18, United States Code, is

18 amended—

19 (1) in paragraph (5), by inserting before the

20 semicolon the following: ‘‘, and data stored on com21 puter disk or by electronic means which is capable

22 of conversion into a visual image’’;

23 (2) in paragraph (6), by striking ‘‘and’’;

24 (3) in paragraph (7), by striking the period and

25 inserting ‘‘; and’’; and
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1 (4) by adding at the end the following new

2 paragraph:

3 ‘‘(8) ‘child pornography’ means any visual de4 piction, including any photograph, film, video, pic5 ture, or computer or computer-generated image or

6 picture, whether made or produced by electronic,

7 mechanical, or other means, of sexually explicit con8 duct, where—

9 ‘‘(A) the production of such visual depic10 tion involves the use of a minor engaging in

11 sexually explicit conduct;

12 ‘‘(B) such visual depiction is, or appears to

13 be, of a minor engaging in sexually explicit con14 duct; or

15 ‘‘(C) such visual depiction is advertised,

16 promoted, presented, described, or distributed

17 in such a manner that conveys the impression

18 that the material is or contains a visual depic19 tion of a minor engaging in sexually explicit

20 conduct.’’.

21 ‘‘(D) such visual depiction is advertised,

22 promoted, presented, described, or distributed

23 in such a manner that conveys the impression

24 that the material is or contains a visual depic-
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1 tion of a minor engaging in sexually explicit

2 conduct; and

3 ‘‘(9) ‘identifiable minor’—

4 ‘‘(A) means a person—

5 ‘‘(i)(I) who was a minor at the time

6 the visual depiction was created, adapted,

7 or modified; or

8 ‘‘(II) whose image as a minor was

9 used in creating, adapting, or modifying

10 the visual depiction; and

11 ‘‘(ii) who is recognizable as an actual

12 person by the person’s face, likeness, or

13 other distinguishing characteristic, such as

14 a unique birthmark or other recognizable

15 feature; and

16 ‘‘(B) shall not be construed to require

17 proof of the actual identity of the identifiable

18 minor.’’.

19 SEC. 4. PROHIBITED ACTIVITIES RELATING TO MATERIAL

20 CONSTITUTING OR CONTAINING CHILD POR21 NOGRAPHY.

22 (a) IN GENERAL.—Chapter 110 of title 18, United

23 States Code, is amended by adding after section 2252 the

24 following:
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1 ‘‘§ 2252A. Certain activities relating to material con2 stituting or containing child pornography

3 ‘‘(a) Any person who—

4 ‘‘(1) knowingly mails, or transports or ships in

5 interstate or foreign commerce by any means, in6 cluding by computer, any child pornography;

7 ‘‘(2) knowingly receives or distributes—

8 ‘‘(A) any child pornography that has been

9 mailed, or shipped or transported in interstate

10 or foreign commerce by any means, including

11 by computer; or

12 ‘‘(B) any material that contains child por13 nography that has been mailed, or shipped or

14 transported in interstate or foreign commerce

15 by any means, including by computer;

16 ‘‘(3) knowingly reproduces any child pornog17 raphy for distribution through the mails, or in inter18 state or foreign commerce by any means, including

19 by computer;

20 ‘‘(4) either—

21 ‘‘(A) in the special maritime and territorial

22 jurisdiction of the United States, or on any

23 land or building owned by, leased to, or other24 wise used by or under the control of the United

25 States Government, or in the Indian country

26 (as defined in section 1151), knowingly sells or
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1 possesses with the intent to sell any child por2 nography; or

3 ‘‘(B) knowingly sells or possesses with the

4 intent to sell any child pornography that has

5 been mailed, or shipped or transported in inter6 state or foreign commerce by any means, in7 cluding by computer, or that was produced

8 using materials that have been mailed, or

9 shipped or transported in interstate or foreign

10 commerce by any means, including by com11 puter; or

12 ‘‘(5) either—

13 ‘‘(A) in the special maritime and territorial

14 jurisdiction of the United States, or on any

15 land or building owned by, leased to, or other16 wise used by or under the control of the United

17 States Government, or in the Indian country

18 (as defined in section 1151), knowingly pos19 sesses 3 or more books, magazines, periodicals,

20 films, videotapes, or other material which con21 tain any visual depiction of child pornography,

22 or any book, magazine, periodical, film, video23 tape, computer disk, or any other material that

24 contains 3 or more images of child pornog25 raphy; or
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1 ‘‘(B) knowingly possesses 3 or more books,

2 magazines, periodicals, films, videotapes, or

3 other material which contain any visual depic4 tion of child pornography, or any book, maga5 zine, periodical, film, videotape, computer disk,

6 or any other material that contains 3 or more

7 images of child pornography that has been

8 mailed, or shipped or transported in interstate

9 or foreign commerce by any means, including

10 by computer, or that was produced using mate11 rials that have been mailed, or shipped or

12 transported in interstate or foreign commerce

13 by any means, including by computer,

14 shall be punished as provided in subsection (b).

15 ‘‘(b)(1) Whoever violates, or attempts or conspires to

16 violate, paragraphs (1), (2), (3), or (4) of subsection (a)

17 shall be fined under this title or imprisoned not more than

18 15 years, or both, but, if such person has a prior convic19 tion under this chapter or chapter 109A, or under the laws

20 of any State relating to aggravated sexual abuse, sexual

21 abuse, or abusive sexual conduct involving a minor or

22 ward, or the production, possession, receipt, mailing, sale,

23 distribution, shipment, or transportation of child pornog24 raphy, such person shall be fined under this title and im25 prisoned for not less than 5 years nor more than 30 years.
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1 ‘‘(2) Whoever violates, or attempts or conspires to

2 violate, subsection (a)(5) shall be fined under this title or

3 imprisoned not more than 5 years, or both, but, if such

4 person has a prior conviction under this chapter or chapter

5 109A, or under the laws of any State relating to the pos6 session of child pornography, such person shall be fined

7 under this title and imprisoned for not less than 2 years

8 nor more than 10 years.

9 ‘‘(c) It shall be an affirmative defense to a charge

10 of violating paragraphs (1), (2), (3), or (4) of subsection

11 (a) that—

12 ‘‘(1) the alleged child pornography was pro13 duced using an actual person or persons engaging in

14 sexually explicit conduct;

15 ‘‘(2) each such person was an adult at the time

16 the material was produced; and

17 ‘‘(3) the defendant did not advertise, promote,

18 present, describe, or distribute the material in such

19 a manner as to convey the impression that it is or

20 contains a visual depiction of a minor engaging in

21 sexually explicit conduct.’’.

22 (b) TECHNICAL AMENDMENT.—The table of sections

23 for chapter 110 of title 18, United States Code, is amend24 ed by adding after the item relating to section 2252 the

25 following:
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‘‘2252A. Certain activities relating to material constituting or containing child

pornography.’’.

1 SEC. 5. PENALTIES FOR SEXUAL EXPLOITATION OF CHIL2 DREN.

3 Section 2251(d) of title 18, United States Code, is

4 amended to read as follows:

5 ‘‘(d) Any individual who violates, or attempts or con6 spires to violate, this section shall be fined under this title

7 or imprisoned not less than 10 years nor more than 20

8 years, and both, but if such person has one prior convic9 tion under this chapter or chapter 109A, or under the laws

10 of any State relating to the sexual exploitation of children,

11 such person shall be fined under this title and imprisoned

12 for not less than 15 years nor more than 30 years, but

13 if such person has 2 or more prior convictions under this

14 chapter of chapter 109A, or under the laws of any State

15 relating to the sexual exploitation of children, such person

16 shall be fined under this title and imprisoned not less than

17 30 years nor more than life. Any organization that vio18 lates, or attempts or conspires to violate, this section shall

19 be fined under this title. Whoever, in the course of an of20 fense under this section, engages in conduct that results

21 in the death of a person, shall be punished by death or

22 imprisoned for any term of years or for life.’’.
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1 SEC. 6. MATERIAL INVOLVING SEXUAL EXPLOITATION OF

2 MINORS.

3 Section 2252 of title 18, United States Code, is

4 amended—

5 (1) in subparagraphs (A) and (B) of subsection

6 (a)(4), after ‘‘3 or more books, magazines, periodi7 cals, films, videotapes, or other material which con8 tain any visual depiction’’ by adding ‘‘or any book,

9 magazine, periodical, film, videotape, or other mate10 rial which contains 3 or more visual depictions’’; and

11 (2) by striking subsection (b) and inserting the

12 following:

13 ‘‘(b)(1) Whoever violates, or attempts or conspires to

14 violate, paragraphs (1), (2), or (3) of subsection (a) shall

15 be fined under this title or imprisoned not more than 15

16 years, or both, but if such person has a prior conviction

17 under this chapter or chapter 109A, or under the laws

18 of any State relating to aggravated sexual abuse, sexual

19 abuse, or abusive sexual conduct involving a minor or

20 ward, or the production, possession, receipt, mailing, sale,

21 distribution, shipment, or transportation of child pornog22 raphy, such person shall be fined under this title and im23 prisoned for not less than 5 years nor more than 30 years.

24 ‘‘(2) Whoever violates, or attempts or conspires to

25 violate, paragraph (4) of subsection (a) shall be fined

26 under this title or imprisoned not more than 5 years, or
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1 both, but if such person has a prior conviction under this

2 chapter or chapter 109A, or under the laws of any State

3 relating to the possession of child pornography, such per4 son shall be fined under this title and imprisoned for not

5 less than 2 years nor more than 10 years.’’.

6 SEC. 7. PRIVACY PROTECTION ACT AMENDMENTS.

7 Section 101 of the Privacy Protection Act of 1980

8 (42 U.S.C. 2000aa) is amended—

9 (1) in subsection (a)(1), by inserting before the

10 parenthesis at the end the following: ‘‘, or if the of11 fense involves the production, possession, receipt,

12 mailing, sale, distribution, shipment, or transpor13 tation of child pornography, the sexual exploitation

14 of children, or the sale or purchase of children under

15 section 2251, 2251A, 2252, 2252A, or 2252B of

16 title 18, United States Code’’; and

17 (2) in subsection (b)(1), by inserting before the

18 parenthesis at the end the following: ‘‘, or if the of19 fense involves the production, possession, receipt,

20 mailing, sale, distribution, shipment, or transpor21 tation of child pornography, the sexual exploitation

22 of children, or the sale or purchase of children under

23 section 2251, 2251A, 2252, 2252A, or 2252B of

24 title 18, United States Code’’.
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1 SEC. 8. SEVERABILITY.

2 If any provision of this Act, an amendment made by

3 this Act, or the application of such provision or amend4 ment to any person or circumstance is held to be unconsti5 tutional, the remainder of this Act, the amendments made

6 by this Act, and the application of such to any other per7 son or circumstance shall not be affected thereby.

8 SEC. 9. PROHIBITED ACTIVITIES RELATING TO MATERIAL

9 DEPICTING THE SEXUAL EXPLOITATION OF

10 MINORS.

11 (a) IN GENERAL.—Chapter 110 of title 18, United

12 States Code, is amended by adding after section 2252A,

13 as added by section 4 of this Act, the following:

14 ‘‘§ 2252B. Certain activities relating to material de15 picting the sexual exploitation of minors

16 ‘‘(a) Any person who—

17 ‘‘(1) knowingly mails, or transports or ships in

18 interstate or foreign commerce by any means, in19 cluding by computer, any visual depiction, if such

20 visual depiction has been created, adapted, or modi21 fied to appear that an identifiable minor is engaged

22 in sexually explicit conduct;

23 ‘‘(2) knowingly receives or distributes any visual

24 depiction or any material that contains a visual de25 piction that has been mailed, or shipped or trans26 ported in interstate or foreign commerce by any
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1 means, including by computer, if such visual depic2 tion has been created, adapted, or modified to ap3 pear that an identifiable minor is engaged in sexu4 ally explicit conduct;

5 ‘‘(3) knowingly reproduces any visual depiction

6 for distribution through the mails, or in interstate or

7 foreign commerce by any means, including by com8 puter, if such visual depiction has been created,

9 adapted, or modified to appear that an identifiable

10 minor is engaged in sexually explicit conduct;

11 ‘‘(4) either—

12 ‘‘(A) in the special maritime and territorial

13 jurisdiction of the United States, or on any

14 land or building owned by, leased to, or other15 wise used by or under the control of the United

16 States Government, or in the Indian country

17 (as defined in section 1151), knowingly sells or

18 possesses with the intent to sell any visual de19 piction; or

20 ‘‘(B) knowingly sells or possesses with the

21 intent to sell any visual depiction that has been

22 mailed, or shipped or transported in interstate

23 or foreign commerce by any means, including

24 computer, or that was produced using materials

25 that have been mailed, or shipped or trans-
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1 ported in interstate commerce by any means,

2 including by computer;

3 if such visual depiction has been created, adapted, or

4 modified to appear that an identifiable minor is en5 gaged in sexually explicit conduct; or

6 ‘‘(5) either—

7 ‘‘(A) in the special maritime and territorial

8 jurisdiction of the United States, or on any

9 land or building owned by, leased to, or other10 wise used by or under the control of the United

11 States Government, or in the Indian country

12 (as defined in section 1151), knowingly pos13 sesses 3 or more books, magazines, periodicals,

14 films, videotapes, or other material which con15 tain any visual depiction, or any book, maga16 zine, periodical, film, videotape, computer disk,

17 or any other material that contains 3 or more

18 visual depictions; or

19 ‘‘(B) knowingly possesses 3 or more books,

20 magazines, periodicals, films, videotapes, or

21 other material which contain any visual depic22 tion, or any book, magazine, periodical, film,

23 videotape, computer disk, or any other material

24 that contains 3 or more visual depictions that

25 has been mailed, or shipped or transported in
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1 interstate or foreign commerce by any means,

2 including by computer;

3 if such visual depiction has been created, adapted, or

4 modified to appear that an identifiable minor is en5 gaged in sexually explicit conduct;

6 shall be punished as provided in subsection (b).

7 ‘‘(b)(1) Whoever violates, or attempts or conspires to

8 violate, paragraph (1), (2), (3), or (4) of subsection (a)

9 shall be fined under this title or imprisoned not more than

10 15 years, or both, but, if such person has a prior convic11 tion under this chapter or chapter 109A, or under the laws

12 of any State relating to the production, possession, receipt,

13 mailing, sale, distribution, shipment, or transportation of

14 a visual depiction that would be prohibited under this

15 chapter if it had occurred within the special maritime and

16 territorial jurisdiction of the United States, such person

17 shall be fined under this title and imprisoned for not less

18 than 5 years nor more than 30 years.

19 ‘‘(2) Whoever violates, or attempts or conspires to

20 violate, subsection (a)(5) shall be fined under this title or

21 imprisoned not more than 5 years, or both, but, if such

22 person has a prior conviction under this chapter or chapter

23 109A, or under the laws of any State relating to the pro24 duction, possession, receipt, mailing, sale, distribution,

25 shipment, or transportation of a visual depiction that
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1 would be prohibited under this chapter if it had occurred

2 within the special maritime and territorial jurisdiction of

3 the United States, such person shall be fined under this

4 title and imprisoned for not less than 2 years nor more

5 than 10 years.’’.

6 (b) CLERICAL AMENDMENT.—The table of sections

7 for chapter 110 of title 18, United States Code, is amend8 ed by adding after the item for section 2252A the follow9 ing:

‘‘2252B. Certain activities relating to material depicting the sexual exploitation

of minors.’’.

10 (c) DEFINITION.—Section 2256 of title 18, United

11 States Code, as amended by section 3 of this Act, is

12 amended—

13 (1) in paragraph (7), by striking ‘‘and’’;

14 (2) in paragraph (8), by striking the period and

15 inserting ‘‘; and’’; and

16 (3) by adding at the end the following new

17 paragraph:

18 ‘‘(9) ‘identifiable minor’—

19 ‘‘(A) means a person who—

20 ‘‘(i) was a minor at the time the vis21 ual depiction was created or at the time

22 the person’s image was captured on the

23 visual medium used in creating, modifying,

24 or adapting such visual depiction; and
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1 ‘‘(ii) is recognizable in the visual de2 piction as an actual person by the person’s

3 likeness or other distinguishing physical

4 characteristic, such as a unique birthmark

5 or other recognizable feature; and

6 ‘‘(B) shall not be construed to require

7 proof of the actual identity of the minor.’’.

8 SEC. 10. AMBER HAGERMAN CHILD PROTECTION ACT OF

9 1996.

10 (a) SHORT TITLE.—This section may be cited as the

11 ‘‘Amber Hagerman Child Protection Act of 1996’’.

12 (b) AGGRAVATED SEXUAL ABUSE OF A MINOR.—

13 Section 2241(c) of title 18, United States Code, is amend14 ed—

15 (1) by inserting ‘‘crosses a State line with in16 tent to engage in a sexual act with a person who has

17 not attained the age of 12 years, or’’ after ‘‘Who18 ever’’; and

19 (2) by adding at the end the following: ‘‘If the

20 defendant has previously been convicted of another

21 Federal offense under this subsection or under sec22 tion 2243(a), or of a State offense that would have

23 been an offense under either such provision had the

24 offense occurred in a Federal prison, unless the
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1 death penalty is imposed, the defendant shall be sen2 tenced to life in prison.’’.

3 (c) SEXUAL ABUSE OF A MINOR.—Section 2243(a)

4 of title 18, United States Code, is amended—

5 (1) by inserting ‘‘crosses a State line with in6 tent to engage in a sexual act with a person who,

7 or’’ after ‘‘Whoever’’; and

8 (2) by adding at the end the following: ‘‘If the

9 defendant has previously been convicted of another

10 Federal offense under this subsection or under sec11 tion 2241(c), or of a State offense that would have

12 been an offense under either such provision had the

13 offense occurred in a Federal prison, unless the

14 death penalty is imposed, the defendant shall be sen15 tenced to life in prison.’’.

Æ